CA Unpub Decisions

A jury convicted defendant Anthony Fletcher of first degree murder (Pen. Code, 187, 189) and sustained an allegation he personally used a firearm in the murder (Pen. Code, 12022.53, subd. (c)). The trial court sentenced defendant to 25 years to life for the murder and a consecutive 20-year term for the firearm enhancement.
On appeal, defendant contends the trial court abused its discretion under Evidence Code section 352 by admitting recordings of calls made by defendant from jail. Court affirm.

In case No. SF086660A defendant Willie Earl Burrell, Jr., pled no contest to possession of cocaine base for sale (Health & Saf. Code, 11351.5) and misdemeanor failure to appear (Pen. Code, 1320). In case No. SF087428A defendant pled no contest to possession of cocaine. (Health & Saf. Code, 11350.) The trial court suspended imposition of the sentence and admitted defendant to five years formal probation. (People v. Wende(1979) 25 Cal.3d 436.) Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant.

Defendant appeals following her conviction for possession of methamphetamine for sale (Health & Saf. Code, 11378), participation in a criminal street gang (Pen. Code, 186.22, subd. (a); undesignated section references are to the Penal Code), and felon in possession of a firearm ( 12021), plus enhancements. Defendant claims improper denial of her motion to suppress evidence seized in a warrantless search, evidentiary error, insufficiency of the evidence, instructional error, sentencing error, and prosecutorial misconduct. Court affirm the judgment.

Defendant Lee Kelly Clarke resisted strenuously when officers detained him while investigating a report that defendant was carrying a knife and banging on his neighbors doors. Defendant pled no contest to a misdemeanor violation of resisting, obstructing, and delaying a public officer in the performance of his or her duties, and was sentenced to time served while in custody pending trial. On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence against him on the ground his detention was unlawful. Court affirm the judgment.

Defendant Jason Jay Anderson pled no contest to carjacking (Pen. Code, 215, subd. (a)) and assault with a firearm ( 245, subd. (a)(2)), and admitted to personally using a firearm in the commission of a carjacking ( 12022.53, subd. (b)) and a prior strike conviction for burglary. The trial court sentenced defendant to 27 years in prison. The court also ordered $3,800 in restitution, a 10 percent collection fee, a $20 court security fee, and a $200 restitution fine, and stayed a $200 parole revocation fine. Pursuant to section 2933.1, defendant was awarded 304 days of actual time and 45 days of good conduct credit, for a total of 349 days of custody credit.(People v. Wende (1979) 25 Cal.3d 436.) Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

A jury found defendant Darrell Eugene Young, a prison inmate, guilty of possessing a sharp instrument and/or slungshot, and the trial court found that he had two prior serious felony convictions within the meaning of the three strikes law and had served a prior separate prison term. Defendant was sentenced to 25 years to life, with a consecutive one-year term for the prior prison enhancement.
On appeal, defendant contends (1) the trial court abused its discretion in not striking, for purposes of sentencing, defendants prior felony convictions, (2) his sentence constitutes cruel and unusual punishment, and (3) there is an error in the abstract of judgment. Court affirm the judgment and direct the trial court to correct the abstract.

A jury found defendant guilty of attempted murder (Pen. Code, 187, 664) and willful discharge of a firearm at an occupied vehicle ( 246), with true findings that he caused great bodily injury ( 12022.53, subd. (d)), personally used a firearm ( 12022.53, subd. (b)), personally and intentionally discharged a firearm ( 12022.53, subd. (c)(1)), and committed the offenses to benefit a criminal street gang ( 186.22, subd. (b)(1)(C)). The jury also found him guilty of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)).
The trial court sentenced defendant to a determinate term of 15 years, followed by an indeterminate term of 25 years to life.
On appeal, defendant challenges the sufficiency of the evidence to support his conviction of shooting an occupied vehicle and the jurys finding that he committed the shooting to benefit a criminal street gang. Court affirm the judgment.

Defendant was charged with attempting to murder Sean DeMel, intentionally discharging and personally using a firearm causing great bodily injury, and having served three prior prison terms. He waived trial by jury, and the court found him guilty of attempted murder. The court also found the firearm allegations were true, but failed to make any findings as to the truth of the prior prison term allegations. Defendant was sentenced to 35 years to life in prison (the middle term of seven years for the attempted murder, plus 25 years to life for personally and intentionally discharging a firearm causing great bodily injury, plus three years for the prior prison term enhancements).
On appeal, defendant contends that (1) his attempted murder conviction must be reversed for insufficient evidence, (2) the great bodily injury enhancement must be stricken for lack of substantial evidence, and (3) the prior prison term enhancements must be stricken because the trial court did not find them to be true. With respect to his third contention, he claims that retrial of the prior prison term allegations is barred by double jeopardy.
Court vacate the judgment and sentence on the prior prison term enhancements, remand for further proceedings to determine the truth of those allegations, and affirm the judgment in all other respects.

Defendant appeals from an order revoking probation and imposing sentence after a plea and a contested hearing. He contends: (1) The trial court abused its discretion and denied defendant due process by revoking his probation for failure to complete sex offender therapy. (2) The trial court abridged defendants constitutional due process rights by admitting a therapists hearsay statement to a probation officer about defendants progress in treatment. Court affirm.

When a person has been convicted of felony assault with a deadly weapon (Pen. Code, 245) by means of a vehicle, and the Department of Motor Vehicles (DMV) receives a certified abstract of judgment which shows these facts, it must revoke that persons drivers license for life. (Veh. Code, 13351.5 (section 13351.5).) The statute makes it absolutely clear that the DMV may revoke the license only if the abstract of judgment conveys all the required information. The statute also makes clear that it is the DMV, not the trial court, which is to revoke the license.
In this case, after a negotiated no contest plea to two felony violations of Penal Code section 245 which did not include vehicle use allegations, the trial court purported to revoke defendants license under section 13351.5 on its own motion, rather than referring the matter to the DMV. Moreover, the abstract of judgment does not show that the statutes criteria were satisfied and could not have done so under the express terms of the plea bargain. Therefore, the courts act amounted to an unauthorized sentence and violated the plea bargain. Court vacate defendants sentence and remand with directions that defendant be permitted to withdraw the plea.

A jury found defendant guilty of burglary (Pen. Code, 459; undesignated statutory references are to the Penal Code), robbery ( 211), and murder ( 187) and found true the special circumstances that the murder was committed while he was engaged in a burglary and robbery ( 190.2, subd. (a)(17)) and the allegation he was armed during the commission of the crimes ( 12022, subd. (a)). Defendant was sentenced to state prison for life without the possibility of parole for the murder with special circumstances, plus one year for the armed enhancement, and ordered to pay a $10,000 restitution fine ( 1202.4, subd. (b)) and $13,450 in victim restitution, $10,000 of which was for stolen property ( 1202.4, subd. (f)). Defendant appealed, and this court affirmed the judgment. (People v. McDaniel (Feb. 26, 2003, C037451) [nonpub. opn.].)
Defendant appeals, contending (1) the trial court abused its discretion in ordering him to pay $5,000 for missing items and (2) the restitution order must be amended to show that it is in lieu of . . . the restitution fine. (Capitalization omitted.) Court agree the $8,450 in victim restitution is in lieu of the $10,000 restitution fine. Accordingly, Court modify the judgment to reduce the restitution fine to $1,550 and affirm the judgment as modified.

On a 100-degree day in August 2004, defendant William Matthew Rupp rode a power mower to trim weeds on his property in rural Shasta County. The resulting fire destroyed over 10,000 acres and 80 homes. A jury convicted defendant of unlawfully and recklessly causing a fire of a structure or forest (count 1; Pen. Code, 452, subd. (c)) and of negligently using a lawnmower and causing a fire, a misdemeanor (count 2; Pub. Resources Code, 4435). In a bifurcated proceeding, the trial court found the allegation true as to count 1 that defendant unlawfully and recklessly caused multiple structures to be burned ( 452.1, subd. (a)(4)). The court sentenced defendant to an aggregate state prison term of four years, consisting of two years (the midterm) on count 1 plus two years (also the midterm) on the enhancement. The record is silent as to the courts disposition of count 2, if any. Defendant contends: (1) The trial court prejudicially misinstructed the jury as to the presumption of negligence. (2) The trial court erred reversibly by [g]iving an [i]mpromptu [a]mplification of the [r]easonable [d]oubt [i]nstruction[.] (3) The trial courts imposition of an additional term based on an enhancement not tried to the jury is unconstitutional in light of Cunningham v. California (2007) 549 U.S.[166 L.Ed.2d 856] (Cunningham). Court reject these contentions and affirm the judgment. However, Court remand the matter to the trial court for resentencing as to count 2.

Defendants appeal from a judgment in this action to set aside the transfer of residential property as violative of the Uniform Fraudulent Transfer Act (UFTA). Following a court trial, the court found the Martins who purchased the property from the plaintiffs judgment debtor jointly and severally liable to plaintiff for damages in the amount of approximately $25,000.
In this pro se appeal, the Martins contend the evidence was insufficient to show they possessed actual, subjective knowledge of fraud by property transferees. Court find the evidence was sufficient on the dispositive fact of whether they gave a reasonably equivalent value for the property, and affirm the judgment.

A jury convicted defendant of making a criminal threat and assault with a deadly weapon, and the trial court sentenced him to the upper term on each count (an aggregate term of four years in state prison). On appeal, defendant contends that imposition of the upper term violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (hereafter Cunningham). Court affirm the judgment.