CA Unpub Decisions

Defendant John Aguayo appeals from the trial court’s denial of his petition to recall his sentence pursuant to Penal Code section 1170.18, a recently enacted provision of Proposition 47, and to reduce his prior conviction for unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) from a felony to a misdemeanor. In our initial opinion in this case, we did not reach the merits of Aguayo’s argument that Vehicle Code section 10851 convictions may be reduced under Proposition 47. Instead, we concluded that, even if such reduction is available in some circumstances, Aguayo had not met his burden to show that he was eligible for resentencing, because he had not shown the value of the vehicle at issue was $950 or less. We therefore affirmed the denial of his petition without prejudice.

Defendant Brian Brown was sentenced to serve 50 years to life in state prison after being convicted of first degree murder and related charges by a jury. On appeal and in a related habeas corpus petition, defendant contends his trial counsel was constitutionally ineffective as a result of failing to investigate an alibi defense. He also argues that his counsel’s argument to the jury was prejudicially incompetent in suggesting he could be convicted by less than proof beyond a reasonable doubt, that the prosecutor violated a promise and the court’s order by introducing testimony bearing upon whether defendant had been searching for the victim, that the court failed to strike testimony suggesting that defendant had committed murders on prior occasions, and that cumulative error necessitates reversal of the jury’s verdict.

Fermin Solis Aniel and Erlinda Abibas Aniel (the Aniels), representing themselves, appeal from an order of dismissal entered after the trial court sustained, without leave to amend, demurrers filed by defendants HSBC Bank, U.S.A. as Trustee for DALT 2007-A03 (HSBC Bank), Mortgage Electronic Registration Systems, Inc. (MERS), GMAC Mortgage, LLC (GMACM), ETS Services, LLC (ETS), and Pite Duncan, LLP (Pite Duncan). For reasons we will explain, we conclude the trial court properly sustained the demurrers without leave to amend and we therefore affirm the dismissal order.

Defendant David Brian Mariant was convicted by a jury of continuous sexual abuse of a child (Pen. Code, § 288.5) and lewd conduct with a minor aged 14 or 15 years (§ 288, subd. (c)(1)). He was sentenced to a total term of 14 years in prison. On appeal, he argues: (1) the trial court erred when it excluded a videotape depicting him in a manic state around the time the victim, his oldest daughter (J.), reported the abuse, (2) the trial court erred when it admitted e-mails containing explicit descriptions of his prior sexual acts with other adults, (3) his trial counsel was ineffective for failing to exclude the statements he made during a pretext call with J. as involuntary, and (4) CALCRIM No. 1110, which was given to the jury, contained an error that negated one of the elements of section 288, subdivision (c)(1). Additionally, defendant asks that this court independently review J.’s therapist’s files to determine if all properly discoverable evidence was given to the defense

Appellant was convicted of committing multiple child sex crimes against his cousin Tracy. On appeal, the only disputed issue is whether he used force or duress the first time he had sexual intercourse with Tracy. Finding substantial evidence he did, we affirm his conviction for aggravated sexual assault. While it is undisputed the judgment must be modified to stay sentence on one of the other counts and to increase appellant’s presentence custody credits, we affirm in all other respects.

Appellant Christopher L. (hereafter father) contends the juvenile court erred in denying his Welfare and Institutions Code section 388 petition seeking reunification services. Alternatively, Father contends the section 366.26 order terminating parental rights should be reversed. We affirm.

In July 2017, the Kern County Juvenile Court (juvenile court) denied a modification petition brought by appellants Craig D. (father) and Melanie T. (mother) pursuant to Welfare and Institutions Code, section 388 (section 388 petition) seeking the return of their then 11-month-old daughter, Trinity D., to their custody under family maintenance services. At the same hearing, the court terminated their parental rights. (§ 366.26.) Mother appeals from the court’s order denying the section 388 petition. Father joins and adopts by reference the arguments made by mother in her separate appeal of the same order. (Cal. Rules of Court, rule 8.200(a)(5).) Mother contends the court abused its discretion in denying the section 388 petition because the requested order served Trinity’s best interest. We affirm.

Pursuant to a plea agreement, appellant Derrick Dewand Bridges pled no contest to one count of violating Penal Code section 273.5, subdivision (a), and admitted a prior conviction for assault with a firearm. He was sentenced in accordance with the plea agreement. Bridges appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.

A jury convicted appellant Aaron Matthew Green of four counts: willfully eluding a peace officer, possession of a stolen vehicle, willfully resisting a peace officer (count 3), and driving without a valid license (count 4). On October 26, 2015, Green was sentenced to an aggregate term of five years in state prison. Green received a three-year sentence for count 1, with the sentence for each of counts 2 through 4 to be served concurrently with the three-year sentence on count 1. The court also sentenced Green to two one-year enhancements based on two prior prison commitments under Penal Code section 667.5, subdivision (b), to be served consecutively to the three-year sentence on count 1.
Green does not challenge the underlying convictions on appeal. Instead, he challenges the imposition of one of the one-year enhancements based on a prior prison commitment that had been reduced to a misdemeanor under Proposition 47 prior to sentencing in this case.

Defendant Jeremy Dale Salter was charged with the murder of John Harley Evans (Pen. Code, § 187, subd. (a)). The information further alleged that he intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)); personally and intentionally discharged a firearm and proximately caused the victim’s death (§ 12022.53, subd. (d)); and personally used a firearm (§ 12022.5, subd. (a)). The jury found defendant guilty of first degree murder and found true the lying-in-wait special circumstance and firearm allegations. The trial court imposed life without the possibility of parole plus an enhancement of 25 years to life for firearm discharge causing death. It stayed the enhancement for firearm use.

Pursuant to a plea agreement, defendant and appellant, Matthew Scott Taylor, pled guilty to attempted murder (count 1; Pen. Code, §§ 664, 187, subd. (a)) and discharging a firearm at an occupied vehicle (count 2; § 246). Defendant additionally admitted allegations that he personally discharged a firearm inflicting great bodily injury upon the victim in his commission of the count 1 offense (§ 12022.7, subd. (b)), personally inflicted great bodily injury in his commission of the count 1 offense (§ 12022.7, subd. (a)), and personally used a firearm (§ 1192.7, subd. (c)(8)) in his commission of the count 2 offense. In accordance with the plea agreement, the court sentenced defendant to 20 years of imprisonment.
On appeal, defendant contends the court erred in imposing a concurrent term on count 2 in contravention of the proscriptions of section 654. The People concede the error. The judgment is modified to stay imposition of sentence on count 2.

Defendant and appellant, Jose Julio Zuniga, appeals from an order modifying the terms and conditions of his probation to add an electronic search condition. He claims his change of residence from Riverside County, where he was convicted and sentenced to formal probation, to San Bernardino County, where the modification order was made, did not constitute changed circumstances justifying the modification. (See People v. Cookson (1991) 54 Cal.3d 1091, 1095-1100.) We agree.
Accordingly, we reverse the order modifying the terms and conditions of defendant’s original probation to add the electronic search condition. Because we reverse the modification order on the ground there were no changed circumstances justifying it, we do not address defendant’s additional claims that the electronic search condition is unrelated to his future criminality and is constitutionally overbroad.

A jury convicted defendant Michael Silva of second degree murder on an implied malice theory. The charge arose from a fatal shooting occurring when defendant, under the influence of methamphetamine, was handling a loaded firearm that discharged, killing Florinda Hernandez (the victim). Defendant was also convicted of being a felon in possession of a firearm and being under the influence of a controlled substance while personally possessing a loaded, operable firearm. The jury found true that he personally used a firearm in the commission of the murder. In a bifurcated proceeding, the trial court found that defendant had three prison priors, a prior strike, and that he committed the offenses while out on bail. On January 4, 2016, defendant was sentenced to ssentenced to 30 years to life for second degree murder, plus a determinate 19 years.

Defendant Clyde L. Anderson pleaded guilty to a single charge of robbery and admitted a strike prior and a prison prior. (Pen. Code, § 211.) The trial court sentenced Anderson to state prison for a determinate term of 11 years.
Anderson appeals. His appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) and has not raised any specific issues. Anderson's counsel asks this court to review the record independently for error as required by Wende. We granted Anderson the opportunity to file a supplemental brief on his own behalf and he has done so. We have independently reviewed the record under Wende and found no reasonably arguable issues for reversal on appeal. We therefore affirm.