CA Unpub Decisions

Defendant and appellant Ricardo Cortez Wheatley (defendant) appeals from the judgment entered after he was convicted of attempted murder and other offenses. He challenges only the imposition of gang and recidivist enhancements, and asks that the case be remanded to permit the court to exercise its discretion whether to strike the firearm enhancement under the recent amendments to Penal Code sections 12022.5 and 12022.53. We reject defendant’s claim that substantial evidence did not support the gang enhancement, but we vacate the sentence to permit the trial court to exercise its discretion with regard to the firearm enhancements, and order the trial court not to reimpose the unauthorized five-year recidivist enhancements as to count 7. We affirm the judgment of conviction.

A jury convicted defendant Raymond Michael Hennings of second-degree robbery, assault with a deadly weapon other than a firearm, and misdemeanor battery, and it found true an allegation that defendant personally used a deadly and dangerous weapon during the robbery. The trial court sentenced defendant to 21 years in prison. On appeal, defendant raises the following arguments: (1) the court erred in allowing the prosecution to introduce evidence of prior uncharged acts of domestic violence between defendant and the victim to prove the robbery charge; (2) the court erred in instructing the jury with respect to the evidence of prior acts of domestic violence; and (3) the court should have awarded defendant an additional day of presentence custody credit. We affirm defendant’s convictions and direct the court to correct defendant’s abstract of judgment to reflect that he is entitled to an additional day of custody credit.

A jury convicted defendant and appellant Chauncey Alexander Hollis of one count of leaving the scene of an accident that resulted in permanent, serious injury and two counts of reckless driving causing great bodily injury. The jury found true allegations that Hollis had a prior conviction for reckless driving and that he personally inflicted great bodily injury on the victims in the commission of the crimes. The jury also found two prison priors true. The trial court sentenced Hollis to 12 years and four months in the state prison.
The sole contention raised by Hollis’s counsel on appeal is that the trial court erred in granting Hollis’s Faretta motion to represent himself because it did not tell him the maximum possible sentence if he were convicted. We find no error and therefore affirm Hollis’s conviction. We remand the case for the trial court to strike the great bodily injury enhancements on Counts 2 and 3.

After having pled guilty to one count of possessing heroin for sale (Health & Safety Code, § 11351), defendant Kevin Caradine was sentenced on July 3, 2014, to six years in prison, with two years to be served in actual custody in Marin County Jail and the four-year balance to be served on mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(B)). Subsequently, on October 28, 2016, the trial court revoked defendant’s mandatory supervision and ordered him to serve the balance of his sentence (879 days) in Marin County Jail. Defendant has appealed the revocation of his mandatory supervision, contending the trial court’s finding that he intentionally violated the terms of his mandatory supervision is not supported by substantial evidence. That question has been rendered moot, and we do not decide it, because of a recent change in the law reducing the term of his sentence.

O.R. (Minor) appeals from a judgment of the juvenile court finding he made a criminal threat (Penal Code, § 422), and unlawfully possessed cigarettes (former § 308, subd. (b)). On appeal, Minor contends “he did not state a ‘true threat’ which would constitute unprotected speech under the First Amendment.” Minor also challenges the juvenile court’s electronics search condition, contending it is both invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), and “unconstitutionally overbroad.” We vacate the juvenile court’s true finding that Minor unlawfully possessed cigarettes, and we otherwise affirm.

James Derby and DeSilva Gates Construction, L.P. (collectively, DeSilva Gates) appeal from a judgment entered after a jury found them 100 percent at fault for respondent Roberto Davila’s personal injury damages in the amount of $4,244,122. DeSilva Gates contends the jury’s allocation of fault was prejudicially affected by improper references to an indemnification agreement, by which respondent Navajo Pipeline, Inc. (Navajo) would have to pay all of the liability of DeSilva Gates if the jury found Navajo as little as one percent at fault, such that DeSilva Gates would pay nothing even though it admitted negligence. DeSilva Gates also contends the court erred by awarding costs to Davila under Code of Civil Procedure section 998, because Davila and his wife jointly served an offer that did not allocate between their claims, and expert witness fees for non-retained experts is not permitted.

Nirupuma Singh (Niru) died in April 2014 while covered by a $100,000 life insurance policy. This lawsuit addresses whether her mother or her husband is entitled to receive the policy’s proceeds. The trial court determined (1) the $100,000 death benefit was a community asset, (2) the final change of beneficiary form that designated Niru’s mother was not effective because it was not signed by her husband, and (3) Niru’s husband inherited her one-half interest in the community property under the rules of intestate succession. As a result, the court awarded all of the proceeds to her husband. Her mother appealed.

Following a jury trial, codefendants Adalberto Hernandez Bravo and Jose Francisco Lara were convicted of a multitude of felony and misdemeanor offenses stemming from a theft related crime spree that spanned May, June and July 2014.
On appeal, Bravo, joined by Lara, claims the prosecutor committed reversible error during jury selection under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Bravo also claims his conviction on count 6 for second degree burglary is unsupported by substantial evidence; Lara claims his conviction on count 19 for driving on a suspended license is unsupported by substantial evidence. Additionally, Bravo and Lara both raise instructional errors; Bravo claims multiple punishment on counts 7, 8, and 9 is unauthorized; and Lara claims cumulative error. In a supplemental brief, Bravo, again joined by Lara, claims that under the California Supreme Court’s decision in People v. Gonzales.

A jury found Hector Joaquin Rocha, Jr., Philip Lopez, Jr., and Angel Delvillar (together appellants) guilty of the first degree murder of Julio Jimenez (Pen. Code, § 187, subd. (a); count 1), robbery of an inhabited dwelling (§ 212.5, subd. (a); count 2), and robbery of Corina Vargas (§ 211; count 3). As to each appellant, it was found true that the murder was committed during the course of a robbery and that all appellants were principals in the robbery (§ 189); that the robberies were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); and that a principal in the robberies personally discharged a firearm causing the death of Jimenez (§§ 12022.7, 12022.53, subds. (d), (e)(1)). And, as to Lopez, it was found true that he was at least 16 years old at the time of the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)).

Mother and father appeal orders which led to the termination of their parental rights over their son, who was three months old at the time he was removed due to serious physical abuse. Mother argues the trial court erred when it determined (i) she did not establish a change of circumstances to justify giving her reunification services (Welf. & Inst. Code, § 388, unlabeled statutory citations refer to this code) and (ii) the parent-child relationship did not outweigh the benefits of adoption. (§ 366.26, subd. (c)(1)(B)(i).)
Father appeals the trial court’s ruling that ICWA does not apply to the child. He argues the trial court’s finding that San Bernardino County Children and Family Services (the department) provided adequate notice to the tribes is not supported by substantial evidence. He says the department’s notice was faulty because they spelled his maternal grandmother’s name as “Cathleen Jordan” rather than “Kathleen Jordan.”

The trial court denied the petition of defendant and appellant Carrie Nichole Graham to reduce her sentence to a misdemeanor under Proposition 47 (Petition) because her forgery conviction under Penal Code section 476a exceeded $950; and therefore was ineligible for relief. On appeal, defendant argues that the trial court erred in denying the Petition because the record shows she pled guilty to section 476, not section 476a, and her conviction under section 476 is eligible for relief under Proposition 47.

In December 2005, a jury found defendant and appellant Kimberly Louise Long, guilty of second degree murder. (Pen. Code, § 187, subd. (a).) The trial court sentenced defendant to prison for a term of 15 years to life. Defendant petitioned the California Supreme Court for a writ of habeas corpus based, in part, upon ineffective assistance of trial counsel and defendant’s actual innocence. In 2015, the Supreme Court issued an order to show cause, before the trial court, as to why defendant’s trial counsel was not ineffective and why defendant is not actually innocent of the murder. The trial court granted the writ of habeas corpus on the ground of ineffective assistance of trial counsel. The trial court found defendant failed to meet her burden of proving actual innocence.

Defendant and appellant Daniel Trejo raped and molested his stepdaughter Jane Doe from the time she was six years old until she was 13 years old.
Defendant was found guilty of aggravated sexual assault of a child under 14 years of age (Pen. Code, § 269, subd. (a)(1); count 1) and two counts of forcible lewd conduct on a child under the age of 14 years (§ 288, subd. (b)(1); counts 2 & 3) committed between November 3, 2008, and November 2, 2010. Defendant was sentenced to 15 years to life plus a determinative term of 12 years to be served in state prison.
Defendant claims on appeal that the trial court breached its sua sponte instructional duty and violated his federal due process rights by failing to instruct the jury (1) with the lesser included offense of unlawful sexual intercourse with a minor three years younger (§ 261.5, subd. (c)) for count 1; and (2) with the lesser included offense of non-aggravated lewd act (§ 288, subd. (a)) for counts 2 and 3.

A jury convicted Carlos Hernandez of five counts of forcible rape of a child over 14 years of age (Pen. Code, § 261, subd. (a)(2); counts 1-5), five counts of forcible oral copulation with a minor victim over 14 years of age (Pen. Code, § 288a, subd. (c)(2)(C); counts 6-10), and five counts of forcible sexual penetration by a foreign object of a minor victim over 14 years of age (Pen. Code, § 289, subd. (a)(1)(C); counts 11-15). The court sentenced Hernandez to an determinate term of 155 years in state prison, consisting of upper consecutive terms of 11 years each on counts 1 through 5, 10 years each on counts 6 through 10, and 10 years each on counts 11 through 15.