CA Unpub Decisions

Steven Pete Gonzalez was convicted at the conclusion of a jury trial of felony allegations of false imprisonment (Pen. Code, §§ 236, 237, subd. (a); count 1) and making criminal threats (id., § 422; count 3); and misdemeanor allegations of battery on a spouse or cohabitant (id., § 243, subd. (e)(1); count 5) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 6). In a bifurcated proceeding, the trial court found true allegations defendant had two prior serious felony convictions within the meaning of the three strikes law and within the meaning of Penal Code section 667, subdivision (a). The court found true enhancement allegations defendant served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).

Minor, a female, was born in September 2016. Defendant and appellant M.B. (mother) and A.T. (father; collectively, parents) lived separately but father visited minor often. Parents were hoping to reconcile. Parents were both in their 20s when minor was born.
On March 29, 2017, plaintiff and respondent San Bernardino County Children and Family Services (CFS) responded to a child welfare referral indicating that minor, then six months old, was the victim of physical abuse and neglect. Minor had a broken left humerus and left ulna; mother’s story was inconsistent with minor’s injuries. The investigating social worker learned that minor had a severe displaced fracture of the left humerus (long bone in the upper arm), and fractures to her left ulna and radius (two forearm bones). Minor needed surgery for the fractures.

Defendants and appellants, Darrell Lamarr Palmer and Christopher Michael Chiarizio (defendants), appeal from the judgments entered following jury convictions for discharge of a firearm with gross negligence and assault with a firearm. Defendants were also each separately convicted of making criminal threats. The jury further found true that Chiarizio personally discharged a firearm. In a bifurcated trial, the jury found true that Palmer had two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prison prior (§ 667.5).

In 2005, defendant and appellant Brian Andrew Pifer pled guilty to attempted unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); Pen. Code, § 664) with a prior conviction for receipt of a stolen motor vehicle (Pen. Code, §§ 496d, subd. (a), 666.5), and he admitted one prison prior (Pen. Code, § 667.5, subd. (b)). Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among other things established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (Pen. Code, § 1170.18.)
In a previous nonpublished opinion, we affirmed the trial court’s denial of defendant’s petition for resentencing pursuant to Proposition 47. (People v. Pifer (Sept. 23, 2016, E064119 [nonpub. opn.].) In this opinion, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Page (2017) 3 Ca1.5th 1175 (Page).

A jury convicted Alberto Smith of possession of a weapon while confined in a penal institution (Pen. Code, § 4502, subd. (a)) and found true that Smith had a prior serious felony conviction (Pen. Code, §§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)). The trial court sentenced Smith to a prison term of six years.
On appeal, Smith contends the trial court abused its discretion in allowing his prior conviction to be admitted as impeachment evidence because its prejudicial effect outweighed any probative value. We conclude the trial court did not abuse its discretion in admitting evidence of Smith's prior conviction. We therefore affirm.

Heritage Custom Estates Association (Heritage) obtained a judgment against Kevin Tucker for unpaid homeowner's dues and assessments, and the Sheriff of San Diego County (the Sheriff) seized personal property from a residence owned by Tucker to satisfy the judgment. David Hermsen was leasing the residence from Tucker at the time and filed a third party claim to right of possession of the seized property. In response, Heritage filed a petition to determine the validity of Hermsen's third party claim.
The trial court dismissed Heritage's petition because a hearing was not held within the statutory period set forth in Code of Civil Procedure section 720.310, subdivision (c), and ordered that the property be returned to Hermsen. Heritage filed notice of its intent to appeal the order denying its petition and asked the trial court to stay the order releasing the property to Hermsen pending the appeal.

Appointed counsel for defendant Johnnie Edward Hill, Jr., has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we conclude the trial court erred in orally pronouncing defendant’s conduct credits pursuant to Penal Code section 2933.1, but that the abstract of judgment already reflects the proper amount of conduct credit days. We shall therefore modify the judgment to award defendant 33 days of conduct credit and 259 days of total credit, and affirm the judgment as modified. No correction to the abstract of judgment is necessary.

Appellant Marcos Lule (father) and Cristina Deltoro (mother) have two children together. Father is serving a 12-year sentence in state prison. Father moved the trial court for “reasonable” visitation with the parties’ children while he is incarcerated. The parties subsequently participated in child custody recommending counseling with Family Court Services. Family Court Services recommended mother be granted sole legal and physical custody of the children. Family Court Services also recommended that at or about the time father is to be released from prison, he and the children should participate in “reconnection therapy” before father begins to exercise his parenting time. Following a hearing on father’s motion, the trial court adopted the recommendation.

Plaintiff Larry Payne brought suit against defendant American Contractors Indemnity Company (American Contractors) alleging three causes of action. After American Contractors successfully demurred to two causes of action, Payne dismissed his remaining cause of action. American Contractors then moved successfully for attorney fees. On appeal, Payne challenges that award, arguing attorney fees are precluded because under Civil Code section 1717, subdivision (b)(2) (unless otherwise set forth, statutory section references that follow are to the Civil Code), when an action has been voluntarily dismissed, there is no prevailing party. We agree and will reverse the order granting attorney fees.

Following a jury trial, defendant Harold Fulkerson was convicted of second degree murder (Pen. Code, § 187, subd. (a)) with an enhancement for personally using a deadly weapon (§ 12022, subd. (b)(1)). Defendant admitted an on-bail enhancement and was sentenced to 15 years to life plus three years in state prison.
On appeal, defendant contends the trial court erred in failing to instruct sua sponte on involuntary manslaughter as a lesser included offense of murder based on unconsciousness due to voluntary intoxication. We shall affirm.

A jury convicted defendant Dale King of possession of methamphetamine for sale. In bifurcated proceedings, the trial court found true allegations of four prior prison terms and a prior drug conviction. The trial court sentenced defendant to an aggregate prison term of 11 years.
Defendant now contends (1) defense counsel rendered ineffective assistance in failing to object to an expert’s interpretation of his jail call, and (2) the trial court erroneously instructed the jury on the procedure for considering the lesser included offense of simple possession. We find no merit in the contentions.
In supplemental briefing, defendant asserts (3) that the three-year enhancement imposed for his prior drug conviction must be stricken pursuant to a recent amendment to Health and Safety Code section 11370.2. The People agree, and we do too. We will modify the judgment to strike the three-year enhancement imposed for defendant’s prior drug conviction, and affirm the judgment as modifie

Defendant Anthony Michael Almeda contends the trial court erred by doubling his sentence based on a strike prior because, even though he was sentenced pursuant to a plea bargain, there was insufficient evidence to determine whether the strike prior qualified as a strike. He also contends his trial counsel rendered ineffective assistance by failing to challenge the validity of the strike and by failing to include in the plea agreement the option to file a motion to dismiss the strike if the court found it to be valid.
We disagree with defendant’s contentions and affirm the judgment. Defendant cannot challenge the strike prior’s validity or his trial counsel’s decision not to include in the plea a right to seek dismissal of the strike because he did not obtain a certificate of probable cause. He also has not shown his trial counsel rendered ineffective assistance by deciding not to challenge the strike’s validity.

Defendant Cassidy Adam Franklin appeals from a judgment entered after a court trial following a “slow plea” to possession of child pornography. He argues: (1) the magistrate erred in applying the good faith exception to deny his motion to suppress evidence; and (2) the trial court erred in denying his subsequent motion to suppress evidence brought under Penal Code section 1538.5, subdivision (i). He asserts these errors require reversal of the judgment and dismissal with prejudice. The People agree defendant was entitled to a section 1538.5 hearing on the merits and request remand for such hearing. We concur with the People, reverse defendant’s judgment, and remand for further proceedings consistent with this opinion.

In 2003, defendant Tony Dale Johnston entered guilty pleas to unlawful possession of a firearm (case No. F2763), and to first degree burglary, unlawfully taking or driving a vehicle, and arson of a vehicle (case No. F2825). The trial court sentenced him to state prison for over six years in the two matters. In 2011, defendant entered guilty pleas to possessing methamphetamine and receiving stolen property (case No. 11F5155). The trial court sentenced him to a two-year state prison term.
In May 2015, defendant filed a petition in propria persona to reduce these felony convictions to misdemeanors (as well as a 1999 conviction for receiving stolen property that is not pertinent to this appeal) pursuant to Penal Code section 1170.18 (hereafter section 1170.18). He asked that the trial court “broadly and liberally” construe section 1170.18 to apply to all of these offenses, even if they did not all “fi[t] squarely into [the] mold set forth in this act.”