CA Unpub Decisions

Due to the limited scope of issues presented on appeal, a full recital of the facts is unnecessary. It suffices to say that after the victim broke out the rear window of defendant’s car, defendant drove his car into the victim, causing injuries that resulted in the amputation of the victim’s leg.
The People filed a complaint charging defendant with mayhem (Pen. Code, § 203) and assault with a deadly weapon. (§ 245, subd. (a)(1).) The complaint also alleged defendant inflicted great bodily injury on the victim in the assault. (§ 12022.7, subd. (a).)
On September 9, 2021, pursuant to a plea agreement, defendant pleaded no contest to assault with a deadly weapon and admitted he inflicted great bodily injury in exchange for a sentence of seven years. (§§ 245, subd. (a)(1), 12022.7, subd. (a).) The remaining charge was dismissed pursuant to a Harvey waiver. The same day, the trial court sentenced defendant to seven years in prison.

Due to the limited scope of issues presented on appeal, a full recital of the facts is unnecessary. It suffices to say that after the victim broke out the rear window of defendant’s car, defendant drove his car into the victim, causing injuries that resulted in the amputation of the victim’s leg.
The People filed a complaint charging defendant with mayhem (Pen. Code, § 203) and assault with a deadly weapon. (§ 245, subd. (a)(1).) The complaint also alleged defendant inflicted great bodily injury on the victim in the assault. (§ 12022.7, subd. (a).)
On September 9, 2021, pursuant to a plea agreement, defendant pleaded no contest to assault with a deadly weapon and admitted he inflicted great bodily injury in exchange for a sentence of seven years. (§§ 245, subd. (a)(1), 12022.7, subd. (a).) The remaining charge was dismissed pursuant to a Harvey waiver. The same day, the trial court sentenced defendant to seven years in prison.

During a fight with the victim and another, defendant shot and killed the victim. (People v. Ortega (Apr. 10, 2012, C065027 [nonpub. opn.].) In April 2012, we affirmed the judgment on appeal. (Ortega, supra, C065027.) That judgment became final later in 2012, after the denial of defendant’s petition for review to the Supreme Court. Since that time, defendant has filed six appeals and one petition for habeas corpus purporting to challenge various aspects of the judgment in this case.
Of those, one is relevant here. In case No. C092671, defendant appealed the trial court’s September 1, 2020, denial of his petition seeking to be resentenced pursuant to section 1170.95. After his counsel filed a Wende brief, this court dismissed that case as abandoned. Defendant filed a petition for review in the Supreme Court, which was granted on May 12, 2021.

Because the issues on appeal concern ICWA compliance, we limit our factual and procedural recitation to that issue.
In August 2019, the Agency filed a section 300 petition on behalf of the minor (born in October 2018). In the August 2019 detention report, the Agency advised the juvenile court there was no reason to believe the minor is or may be an Indian child. The Agency also reported that paternal grandmother was willing to care for the minor. That same month, mother submitted the “Parental Notification of Indian Status” form (ICWA-020) and checked the box stating she had no known Indian heritage.
During the August 2019, detention hearing, the court asked mother whether she had Indian ancestry, and she responded, “No.” Father, who was incarcerated, was not present during the hearing. The court ordered that the minor be detained.
Since father was incarcerated, the Agency mailed him the ICWA-020 form with detailed completion instructions.

Russell and Sandra were married in October 1976, and divorced in December 1997. On July 7, 1998, the Superior Court for County of Sacramento (trial court) entered a stipulated judgment on reserved issues that ordered Russell to pay Sandra $1,700 per month in spousal support until the death of either party, marriage of Sandra, or further order of the court, whichever occurred first. Russell and Sandra did not have any children together.
In April 2001, Russell married again. The marriage produced two children, one was born in 2002 and the other in 2004. Russell and his second wife separated, and entered into a judgment of legal separation in October 2010 in the Superior Court for the County of Contra Costa. According to the terms of that judgment, Russell would pay his estranged wife $5,200 per month in child support.

While defendant was incarcerated in the Butte County Jail, she threw a milk carton containing urine and fecal matter at a deputy sheriff. Defendant pleaded no contest to gassing and the parties stipulated to a four-year sentence to be served concurrent with the sentence defendant was serving in Colusa County Superior Court case No. 16CF06270 (No. 6270). Defendant also agreed to withdraw her request for pretrial mental health diversion and not seek mental health diversion in case No. 6270. The trial court sentenced defendant to four years in state prison in accordance with the plea agreement. There were no custody credits because defendant was already in custody in case No. 6270 and this sentence was to run concurrent with her sentence. Defendant was advised and agreed that she would not receive custody credits in this matter in her plea agreement.

In 2014, defendant was convicted of first degree murder with a felony-murder special circumstance, attempted robbery, and first degree burglary. Several firearm enhancements also were found true and defendant was sentenced to life without the possibility of parole, plus 30 years to life. In an unpublished opinion filed in 2018, this court affirmed that judgment. (People v. Godines (July 25, 2018, C078214) [nonpub. opn.].)
This court described the underlying facts of defendant’s crimes as follows: Defendant “opened the door to the bedroom where [his codefendant] was dancing for [the victim] and turned on the lights. He pointed a gun at [the victim] and demanded to know where [the victim] kept his money. [The victim] moved toward the door and [defendant] fatally shot [the victim] in the chest. [Defendant] then told [his codefendant] to ‘[f]ind the money’ before he ran out of the apartment.

On our own motion, we take judicial notice of the opinion deciding defendant’s direct appeal to provide basic factual context. (Evid. Code, § 452, subd. (d).) Over the course of two weeks in 2005, defendant, along with codefendants Joseph Terrell Johnson and Corey Schroeder, “robbed or attempted to rob at least five gas stations in the Sacramento area.” (People v. Johnson et al. (2010) 183 Cal.App.4th 253, 261.) In one of the attempts, Johnson shot and killed the victim, a gas station employee. (Id. at pp. 267-269.) A jury found defendant guilty of murder (§ 187, subd. (a)), attempted robbery (§§ 211, 664), and found true an allegation that the murder occurred in the commission of the attempted robbery (§ 190.2, subd. (a)(17)). The jury also found defendant guilty of three other counts of robbery and one count of attempted robbery, and found true firearm enhancement allegations as to all counts (§ 12022, subd. (a)(1)).

The background facts are taken from our prior opinion in People v. Orozco (Jan. 4, 2012, C065146 [nonpub. opn.] (Orozco). Defendant and his codefendant Jose Jesus Gomez, both Norteño gang members, killed Juan Alberto Sanchez-Chavez. The killing occurred when defendant, Gomez, and two others drove to a gas station after an evening of drinking beer. Sanchez-Chavez, a Sureño gang member, encountered them at the station. After the defendant and Gomez exchanged words with Sanchez-Chavez, the three men physically fought. When Sanchez-Chavez fell to the ground, Gomez picked up a piece of wood and hit him in the head with it until it broke. Defendant picked up a 36-pound rock and dropped it on Sanchez-Chavez. Gomez picked up the victim’s phone and then drove away with defendant and the other two men. Gomez later tossed the phone away. Sanchez-Chavez died four days later of severe traumatic brain injury due to blunt force trauma to his head. (Orozco, supra, C065146.)

The details of the offenses in this case are not relevant to defendant’s appeal of her upper term sentence, so we omit them. A jury found defendant guilty of evading a peace officer (Veh. Code, § 2800.2, subd. (a)), resisting a peace officer (Pen. Code, § 148, subd. (a)), and driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). During trial, defendant also pleaded guilty to driving with a suspended license (Veh. Code, § 14601.1, subd. (a)).
At the sentencing hearing, the trial court considered as aggravating circumstances: (1) defendant’s prior convictions (Cal. Rules of Court, rule 4.421(b)(2)); (2) prior violations of probation and parole (rule 4.421(b)(5)); (3) the fact that defendant was on probation when she committed the current offense (rule 4.421(b)(4)); and (4) defendant’s “total disregard for the safety of others” in driving under the influence, which could easily have resulted in the death of an innocent person (rule 4.421(a)(1)).

At defendant Anthony Lee Allen’s jury trial, witnesses testified to defendant entering a liquor store on October 5, 2020, taking food and a drink, and walking out without paying. When he was confronted by two store employees, one wielding a bat, defendant took out a gun and pointed it at the employees, who backed off; defendant then biked away. Video of the incident from the store’s surveillance cameras was shown to the jury.
The jury found defendant guilty of two counts of second degree robbery, finding true for each that he personally used a firearm, and one count of felon in possession of a firearm. The trial court conducted a bench trial on defendant’s prior conviction and found beyond a reasonable doubt that he had been convicted of a prior strike offense.
At the sentencing hearing on May 19, 2021, the trial court stated: “[B]ased on [defendant’s] record, not so much the circumstances of the offense, but on his record, I’m looking at upper term doubled

In 2017, K.E., a veteran, was shopping when defendant yelled obscenities and various anti-American sentiments. K.E. took offense to defendant’s language and responded. Defendant then threatened to cut off K.E.’s head and attempted to stab him.
The trial court found defendant incompetent to stand trial (Pen. Code, § 1370) and ordered him committed to the state hospital. Defendant was declared restored to competency and discharged from the hospital in March 2020.
In September 2020, defendant pleaded no contest to assault with a deadly weapon, with an agreement he would initially serve no state prison time. (§ 245, subd. (a)(1).) Defendant waived 1,257 days of custody credit and the trial court awarded him 364 days of credit. The trial court placed defendant on felony probation for five years. The remaining charges were dismissed on the People’s motion.

During a sting operation, defendant texted with a law enforcement officer who was posing as a 13-year-old girl, agreeing to give the decoy minor a ride in exchange for sexual acts. A jury found defendant guilty of contacting a minor with the intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a)) and arranging a meeting with a minor for sexual contact (§ 288.4, subd. (b)).
On March 22, 2021, the trial court suspended imposition of sentence and placed defendant on formal probation for five years. The trial court also verbally imposed various fines and fees, including a “fee of $100 for the preparation and completion of the presentence report,” a $300 restitution fine (§ 1202.4, subd. (b)), a suspended $300 probation revocation fine (§ 1202.45), a $300 first sex offense conviction fine (§ 290.3), two $40 court operation assessments (§ 1465.8), and two $30 court facilities assessments (Gov. Code, § 70373, subd. (a)(1)).

In April 2018, while driving with a blood-alcohol concentration of 0.38 percent, defendant was involved in two car accidents. She pleaded no contest to driving under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a)) and admitted an enhancement allegation (id., § 23578). She also pleaded no contest to misdemeanor child endangerment (Pen. Code, § 273a). The trial court dismissed the remaining charges with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
On September 10, 2019, the trial court suspended imposition of sentence and placed defendant on four years of formal probation. As relevant here, the court ordered defendant to pay the minimum restitution fine (with a subsequent reduction for custody time), reduced the penalty assessment from $2,100 to $1,209, and imposed several fees. Defendant did not appeal from her sentencing.
L. Garcia was the driver of one of the vehicles defendant damaged.