CA Unpub Decisions

Defendant appeals from the judgment following his negotiated plea of no contest to driving with a 0.08 percent blood alcohol level causing injury (Veh. Code, 23153, subd. (b)), with an admission that he had a prior conviction of a felony qualifying him for sentencing pursuant to the Three Strikes law. (Pen. Code, 667, subds. (b) (i); 1170.12.) The trial court sentenced him to six years in state prison.
Defendant contends that the trial court erred during sentencing because when he failed to appear for sentencing, the trial court modified the terms of the negotiated plea without giving him an opportunity to withdraw his plea.
The contention lacks merit, and court affirm the judgment.

Mother of 11 year old Carlos, 9 year old Erick, and 7 year old Ericka, appeals an order of the juvenile court continuing the courts jurisdiction over her children. The Los Angeles County Department of Children and Family Services (DCFS) concedes that the juvenile court erred in continuing its jurisdiction, court therefore reverse the order and vacate all subsequent orders.

Willard J. appeals from (1) the trial courts order setting a permanent planning hearing under Welfare and Institutions Code section 366.26 ( 366.26) and (2) its refusal to order visitation with his three year old daughter, P.J. Court affirm.

Defendant raises only one issue on appeal: Whether the trial court incorrectly limited his presentence custody credits. The People concede, and court agree, that the trial court erred. Court therefore remand this matter to the trial court to recalculate custody credits.

Appellant appeals from the juvenile courts jurisdictional order in which, after a contested hearing, appellants daughter was adjudged a dependent of the court under Welfare and Institutions Code section 300, subdivision (b). Court conclude that the courts findings were supported by substantial evidence and affirm the judgment.

Defendant appeals the judgment following his no contest plea to assault by force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) and admission that he suffered a prior strike conviction in 1977 for second degree murder ( 187; 667, subds. (b) (i); 1170.12, subds. (a) (d).) Pursuant to the negotiated plea, the trial court sentenced appellant to two years state prison and doubled the sentence based on the prior strike conviction. ( 245, subd. (a)(1); 667, subds. (d)(1) (e)(1); 1170.12, subds. (b)(1) (c)(1).) Appellant was ordered to pay victim restitution ( 1202.4, subd. (f)), a $800 restitution fine ( 1202.4, subd. b)), and a $800 parole revocation fine ( 1202.45).
Court appointed counsel to represent appellant in this appeal. After reviewing the record, counsel filed an opening brief raising no issues and requesting that this court independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
Court have reviewed the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed.

Petitioner (mother) is the parent of Brianna A. (born November 2004), who is a dependent of the juvenile court. Under California Rules of Court, former rule 38.1, mother filed a petition for extraordinary writ seeking review of the juvenile courts November 17, 2006 ruling ordering no child welfare services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26. Court conclude the juvenile court did not err and that substantial evidence supports its ruling. Accordingly, court deny the petition.

A jury convicted defendant Leon Roger Criton of residential robbery (Pen. Code, 211 count I) and misdemeanor battery on a domestic partner ( 243, subd. (e)(1) count II). However, the jury did not sign and return a verdict on the allegation defendant had a prior serious felony conviction within the meaning of the Three Strikes law ( 667, subds. (b) (i)), a fact overlooked by the court and counsel at sentencing. After denying probation and a request to strike the strike, the court sentenced defendant to six years in prison: the lower term of three years for count I plus three years for the strike; and one year for count II, to run concurrently. On appeal, defendant contends the prosecutor committed misconduct when he asked defendant were they lying questions during cross-examination. He also claims misconduct occurred during closing argument when the prosecutor compared defendant to a rat in a trap with motivation to lie in order to avoid conviction of the charged crimes. Because defense counsel did not object to the prosecutors alleged misconduct, defendant contends that he was denied effective assistance of counsel. Court requested supplemental briefing in response to our stated intent to strike the three years imposed for the strike alleged in the information but not included in the verdicts returned by the jury.
Court vacate the sentence and remand for resentencing with directions to strike the three years imposed for the strike, and affirm the judgment as modified.

After defendant twice scuffled with jail personnel while he was incarcerated, a jury convicted him of three counts of resisting an executive officer, one count of battery on a custodial officer, and one count of misdemeanor battery on an officer. He was sentenced to an aggregate state prison term of eight years and eight months, including consecutive sentences for the three convictions for resisting an executive officer. The sentence imposed for battery on a custodial officer was stayed pursuant to Penal Code section 654.
On appeal, defendant contends the imposition of consecutive sentences violated the principles of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely). Court disagree and affirm the judgment.

Defendant was convicted by a jury of making a criminal threat (Pen. Code, 422), vandalism under $400 ( 594, subds. (a), (b)(2)(A)), battery ( 242), and attempting to prevent and dissuade a witness from testifying ( 136.1, subd. (a)(2)). The court found true three prison priors ( 667.5, subd. (b)), two serious felony prior convictions ( 667, subd. (a)(1), 1170.12, 668), and two prior convictions within the meaning of the three strikes law ( 667, subds. (b) (i), 1170.12, 668). Ybarra was sentenced to a total term of 61 years to life. Ybarra contends the court erred by admitting the victim's statement during a 911 call that Ybarra "had killed people," staying rather than striking prior prison enhancements, and failing to exercise its discretion to strike prior strike convictions on a count by count basis. Court agree the section 667.5, subdivision (b) enhancements should be stricken. In all other respects, the judgment is affirmed.

This litigation, representing the latest chapter in a failed marriage, was filed by Shawn Styles against Margaret Schwab (Styles's former wife) and Schwab's parents (Paul and Shirley Schwab, together Parents) alleging Schwab and Parents had initiated various legal proceedings against Styles to persecute and harass him after the marriage ended. Schwab and Parents moved to strike the complaint pursuant to Code of Civil Procedure section 425.16,commonly referred to as the anti SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) The trial court denied the motion as to Styles's claims against Schwab, but granted the motion as to Styles's claims against Parents. Schwab appeals the former ruling, and Styles cross appeals the latter ruling.

A jury convicted Mark Anthony Yogerst of one count of rape of an unconscious person, in violation of Penal Code section 261, subdivision (a)(4) (hereafter section 261(a)(4) (count 1), and one count of rape of an intoxicated person in violation of section 261, subdivision (a)(3) (hereafter section 261(a)(3) (count 2). The court sentenced him to the upper prison term of eight years on each count, but stayed the sentence on count 2 under section 654.
On appeal, Yogerst contends (1) the court prejudicially erred by not allowing the defense to present 11 photos taken at a party three months before the incident to impeach the victim, Lindsay F.; (2) the court prejudicially erred in instructing the jury with CALJIC No. 2.03 (consciousness of guilt), lightening the prosecution's burden of proof; (3) the court's reprimand of a group of Yogerst's supporters in the jury's presence impugned the defense and deprived him of a fair trial; (4) the evidence was insufficient to support a conviction of rape of an intoxicated person, and thus the court improperly denied Yogerst's section 1118.1 motion for acquittal on count 2; alternatively, conviction on count 1 ( 261(a)(4)) can stand, but conviction on count 2 ( 261(a)(3)) must be vacated because rape can be committed in various ways; (5) the court committed Blakely[2]error by sentencing Yogerst to the upper terms in both counts in violation of his right to a jury trial and proof beyond a reasonable doubt; and (6) the court abused its discretion by sentencing Yogerst to the aggravated upper term in both counts.
Court reverse Yogerst's conviction of count 2 (rape of an intoxicated person) because he cannot be lawfully convicted of both count 1 (rape of an unconscious person) and count 2 based on the single act of sexual intercourse for which he was prosecuted. We also reverse the sentence on the ground the court's imposition of the eight-year upper term sentence on each of the two counts based on judicial fact finding denied Yogerst his federal constitutional rights to a jury trial and proof beyond a reasonable doubt. Court otherwise affirm the judgment and remand the matter for further proceedings.

A jury convicted Diondre Moore of pandering (Pen. Code, 266i, subd. (a)(2)), second degree robbery ( 211), and three counts of attempted robbery ( 211, 664). Moore admitted his prior conviction that was both a serious prior felony ( 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a strike ( 667, subd. (b) (i), 668, 1170.12). The court sentenced Moore to prison for 18 years. Moore appeals, contending the court should have severed the pandering charges from the robbery charges. He further contends the court should have instructed the jury with a unanimity instruction on the pandering charge. Court affirm the judgment.

A jury convicted Victor Villalobos of transportation of more than 28.5 grams of marijuana (Health & Saf. Code, 11360, subd. (a)) and possession of marijuana for sale (Health & Saf. Code, 11359), and found true the allegations that Villalobos had suffered a prior strike conviction (Pen. Code, 667, subds. (b)-(i), 1170.12, 668), and served two prior prison terms ( 667.5, subd. (b), 668). The court denied Villalobos's motion to dismiss his prior strike conviction allegation, and sentenced him to a prison term of eight years. Villalobos contends the failure to dismiss his prior strike conviction allegation was an abuse of discretion.
The judgment is affirmed.