CA Unpub Decisions

Defendant Trias Ghoston appeals from the denial of his request under Penal Code section 1170.18, added by Proposition 47, for redesignation of his conviction for felony unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) to misdemeanor petty theft (Pen. Code, § 490.2). Defendant argues a violation of Vehicle Code section 10851 is a theft crime within the scope of Proposition 47 and Penal Code section 1170.18, and the trial court therefore erred in denying his request. In our original opinion, we concluded Vehicle Code section 10851 is not a theft crime for purposes of Proposition 47, and we affirmed the order denying defendant’s petition.

Defendant Michael A. Collimore pleaded guilty to one count of committing a lewd act upon a child 14 or 15 years of age by a perpetrator who is at least 10 years older than the victim (Pen. Code, § 288, subd. (c)(1)) and admitted the enhancement allegation that he committed the lewd acts with a minor for money (§ 675). Prior to the guilty plea, in response to the parties' cross-motions, the court ruled that Collimore was precluded from presenting a mistake of fact defense based on his belief as to the victim's age. After pleading guilty and being sentenced, the trial court granted Collimore's request for a certificate of probable cause, and Collimore appealed from the judgment.
In this appeal Collimore challenges the trial court's ruling disallowing the mistake of fact defense. However, by his guilty plea, Collimore waived appellate review of this issue. Accordingly, we will dismiss the appeal.

Objectors Sean Hull, Sarah McDonald and Steven Helfand brought two appeals pertaining to a partial class action settlement between the plaintiffs and certain defendants in the underlying proceeding. During the pendency of the appeals, the Supreme Court issued its opinion in Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260 (Hernandez), in which the Court relied on longstanding Supreme Court precedent to reaffirm that unnamed class members may not appeal from a class judgment, settlement or attorney fee award unless those members have become parties to the action by formal intervention or filing a motion to vacate the judgment. After the opinion in Hernandez was filed, the plaintiffs filed a motion to dismiss the objectors' appeals, on the ground that none of the objectors had become parties to the action by intervening or filing a motion to vacate the judgment. The defendants joined in the plaintiffs' motion.

Appointed counsel for defendant William Dixon filed an opening brief setting forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. We shall order a corrected abstract of judgment to be prepared to correct a clerical error.

A jury convicted defendant Christian Ponce of attempted murder and discharging a firearm at an occupied motor vehicle. In connection with both offenses, the jury found true allegations of personal discharge of a firearm causing bodily injury, personal discharge of a firearm, and personal use of a firearm.
The trial court sentenced defendant to serve the low term of five years in prison for attempted murder plus 25 years to life for the firearm enhancement under Penal Code section 12022.53, subdivision (d).
In this appeal, defendant contends (1) defense counsel rendered ineffective assistance in failing to object to statements made by the prosecutor during closing argument and (2) remand is required because defendant is entitled to the benefit of the amendment of sections 12022.5 and 12022.53 that gives a sentencing court discretion to strike firearm enhancements.

This case arises out of a heated argument between defendant Mario Alfredo Martinez and the victim, his fiancée. Two hours after the argument ended, the victim found herself at a gasoline station and talking with a City of Stockton Police Department officer. Over the course of an hour, the victim told the officer defendant had beaten and threatened to kill her, and he possessed a firearm. As a result of this conversation, the police responded by going to defendant and the victim’s apartment, where a search found a loaded handgun. The defendant was arrested. A jury convicted defendant of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), but acquitted him of criminal threats (§ 422) and corporal injury to a cohabitant (§ 273.5, subd. (a)). The jury deadlocked on the lesser included offense of misdemeanor battery on a cohabitant (§ 243, subd. (e).) The court found a prior strike allegation true.

Defendant Andrew Howard Hall shot Eugene Walker at a marijuana farm. A jury found defendant guilty of attempted murder and other related crimes. Defendant contends the trial court committed prejudicial error by (1) not instructing the jury on the lesser included offenses of imperfect self-defense and heat of passion attempted voluntary manslaughter; and (2) not informing the jury that voluntary intoxication is a defense to attempted murder. Defendant also contends (3) the court imposed a strike sentence based on a prior conviction that did not qualify as a strike; and (4) we should remand to allow the court to resentence defendant on a firearm enhancement under Penal Code section 12022.53, subdivision (h) as amended by Senate Bill No. 620. We conclude the trial court committed prejudicial error by not instructing the jury on imperfect self-defense attempted voluntary manslaughter, and we reverse. Because we reverse, we do not address defendant’s remaining contentions.

Following a joint trial, a jury found the four codefendants guilty and sustained allegations as follows: Sandy George (Sandy), first degree murder with a felony-murder (burglary) special circumstance, burglary, and conspiracy to commit burglary; Kevin Moreno (Kevin), first degree murder with a felony-murder (burglary) special circumstance, grand theft as a lesser included offense of robbery, burglary, and conspiracy to commit burglary; Michael Moreno (Michael), first degree murder with a felony-murder (burglary) special circumstance, grand theft as a lesser included offense of robbery, burglary, and conspiracy to commit burglary; and Peaches Alexis Moreno (Peaches), first degree murder with a felony-murder (burglary) special circumstance, petty theft as a lesser offense of robbery, burglary, and conspiracy to commit burglary. The jury declined to return a verdict on any count based on the commission of a robbery.

In an earlier opinion, we affirmed defendant Ravinesh Singh’s conviction of first degree murder and the jury’s true finding on a firearm enhancement imposed under Penal Code section 12022.53, subdivision (d). The California Supreme Court directed us to vacate the opinion and reconsider the appeal in light of Senate Bill 620 (Stats. 2017, ch. 682), which converted the firearm enhancement from mandatory to discretionary. (§ 12022.53, subd. (h).) Defendant asks us to remand the matter so the trial court may exercise its discretion to determine whether to impose the firearm enhancement.
We also permitted defendant to file supplemental briefing on Assembly Bill 1308 (Stats. 2017, ch. 675, § 1). This statute requires youth offender parole hearings for felons who were 25 years of age or younger at the time of the crime. (§ 3051, subd. (b).) A felon who has a right to a youth offender parole hearing has a right to make a record of facts relevant to his or her eventual hearing.

Shaun Andrew Talbutt appeals his conviction for second-degree robbery (Pen. Code, § 211) of a 99 Cent Store with personal use of a deadly weapon (§ 12022, subd. (b)(1)). Appellant was sentenced to three years state prison and contends that the trial court erred in receiving evidence that appellant committed a prior uncharged robbery at the same store. (Evid. Code, § 1101, subd. (b).) We affirm.

Defendant Darrell Odell Durham appeals from the judgment following his plea of no contest to a charge of driving with a blood alcohol level of 0.08 percent or higher within 10 years of a conviction for felony driving under the influence or vehicular manslaughter. Defendant argues that the prosecution failed to establish that his detention at a sobriety checkpoint complied with the Fourth Amendment of the United States Constitution and that the evidence obtained pursuant to that detention should have been excluded. We agree with defendant and reverse the judgment.

A jury convicted defendant Ronnie Yearnell Conrad of torture, mayhem, corporal injury, methamphetamine possession, possession of cocaine base for sale, firearm possession by a felon and ammunition possession. Defendant’s torture, mayhem and corporal injury convictions rested on substantial evidence that in December 2012 he tortured his teenage girlfriend for several hours in a motel room. Law enforcement officers, acting on an anonymous phone tip, and without a warrant, entered the motel room, rescued the badly injured victim and seized multiple items of incriminating evidence. Defendant argues the unidentified informant’s tip was insufficiently corroborated as to criminal activity.

Rita Brown appeals a June 29, 2017 probate order directing Brown to transfer guns, a gun safe, two vehicles, and family heirlooms to Barney Parkhill, Administrator of the Estate of James Henry Parkhill, Jr. (Prob. Code, §§ 850, subd. (a)(2)(C), 856.) We affirm.

Cerron DeJohnette appeals from the judgment after a jury convicted him of second degree robbery. He contends the trial court coerced the jury’s verdict and abused its discretion in sentencing him to state prison instead of probation so he could receive medical and mental health treatment from the Department of Veterans Affairs. In supplemental briefing, DeJohnette also argues the trial court, in sentencing him, failed to comply with Penal Code sections 1170.9 and 1170.91. Finally, DeJohnette asks us to direct the trial court to correct the abstract of judgment to reflect he was convicted by a jury rather than on a plea.
We affirm the conviction but vacate the sentence and remand for the trial court to resentence DeJohnette in compliance with sections 1170.9 and 1170.91. We also direct the trial court to correct the abstract of judgment.