CA Unpub Decisions

A jury convicted defendant and appellant Ronnie Eugene Bacon of possession of a firearm and ammunition by a felon, possession of a controlled substance while armed with a firearm, and possession of a controlled substance. Bacon contends the trial court erred by failing to instruct the jury on simple possession of a controlled substance as a lesser included offense of possession while armed. The parties agree that the abstract of judgment must be corrected to reflect that the trial court stayed sentence, pursuant to Penal Code section 654, on Bacon’s conviction for possession of a controlled substance. We order the abstract of judgment modified as the parties request, and otherwise affirm.

A jury found defendant and appellant Jose Benitez guilty of second degree robbery. He contends the trial court erred by failing to sua sponte instruct the jury on attempted robbery, and therefore his conviction must be reversed or reduced to attempted robbery. We disagree, and affirm the judgment.

Defendants and appellants Raymond Sherman, Troy Hammock and Everett Allen were convicted of various crimes, including robbery, stemming from an after-hours takeover of a Nordstrom Rack during which 14 employees were held. Defendants appealed their convictions and contended, among other things, that the prosecutor committed misconduct by asking “were they lying” questions. Defendant Sherman, unlike the other defendants, was also convicted of forcible rape, forcible oral copulation and aggravated kidnapping, and he raised several contentions regarding those convictions. In an opinion filed on August 28, 2017, we rejected those and defendants’ other contentions regarding sentencing errors and affirmed the judgment.

This is an appeal from judgment after defendant Kenyana Jones entered a plea of guilty to attempted murder and admitted the allegation of firearm use during commission of this crime. Defendant was thereafter sentenced to a total prison term of 12 years, representing the upper term of nine years on the attempted murder count and an additional three-year term for the firearm use enhancement. Defendant was awarded a total of 217 days of custody credits.
After defendant filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende) in which he raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Counsel attests that defendant was advised of his right to file a supplemental brief in a timely manner, but he declined to exercise such right.

Defendant John Tyquiengco was charged with two counts of lewd conduct involving a child less than 14 years of age. During a hearing on in limine motions, the trial court ordered that evidence of defendant’s allegedly inappropriate sexual behavior towards the child’s mother years earlier was not to be introduced until the court ruled on its admissibility. Despite this order, on re-direct examination of the mother, the prosecutor asked if she had ever had problems with defendant. Defense counsel objected, and the mother did not answer. Defendant was ultimately convicted as charged and sentenced to three years in state prison. On appeal, he contends the prosecutor committed misconduct by asking a question, in violation of the court’s order, that suggested he had a history of sexual misconduct with children. He argues the evidence was inadmissible and the question undermined his defense that he lacked the intent to commit the charged offenses due to dementia.

Defendant Chase Ian Campbell appeals from a judgment of conviction of first degree residential burglary (Pen. Code, §§ 459, 460). He contends the trial court erred first in denying his motion to suppress evidence of stolen credit cards observed during a warrantless entry into his residence and secondly in denying his motion to quash the subsequently obtained search warrant, pursuant to which the stolen credit cards were seized. We conclude the trial court did not err in denying the motions and affirm the judgment.

Defendant Jeremy Duke was arrested after he stole a car and led the police on a high-speed chase during which he sped through a neighborhood at 90 miles an hour and on a freeway going opposite the direction of traffic. He was found guilty of six offenses, including felony fleeing a peace officer and driving against traffic (count 1) and felony auto theft (count 2). He asserts the following four errors: (1) the trial court abused its discretion when it denied his motion to dismiss Juror No. 12 after a witness in the case made comments to the juror during a break; (2) count 2 must be reduced to a misdemeanor because there was no evidence the value of the car exceeded $950; (3) the felony conviction on count 2 must be reversed because the trial court failed to instruct the jury that it must find that the value of the car exceeded $950; and (4) the trial court abused its discretion in imposing the upper term of three years in state prison on count 1.

Defendant Stanley Moore appeals from a final judgment following a court trial, raising one issue: was the evidence sufficient to find him guilty of attempted murder? We conclude the answer is yes. In a petition for rehearing, Moore asks the court to remand the case to allow the trial court to consider the application of newly enacted Senate Bill No. 620, which gives trial judges discretion in imposing sentencing enhancements for firearms. We remand the matter for further consideration of the sentencing issue and otherwise affirm the judgment.

Defendant Michael Troy Malone was charged by information with 24 counts: two counts of torture (Pen. Code, § 206); two counts of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)); two counts of assault with a firearm (§ 245, subd. (a)(2)); two counts of domestic violence (§ 273.5); two counts of false imprisonment (§ 236); two counts of criminal threats (§ 422); two counts of child endangerment (§ 273a, subd. (a)); forcible oral copulation (§ 288a, subd. (c)(2)(A)); three counts of rape (§ 261, subd. (a)(2)); three counts of attempting to dissuade a witness (§ 136.1, subd. (b)(2)); and three counts of violating a restraining order (§ 273.6, subd. (a)). It was also alleged that defendant personally used a firearm (§ 12022.5) and personally inflicted great bodily injury (§ 12022.7) for many of the counts. Defendant brought a motion to suppress evidence, which was denied.

Defendant Miguel Angel Gallo Ruiz appeals from the denial of his applications to have two felony convictions of violating Vehicle Code section 10851, subdivision (a), designated as misdemeanors pursuant to Penal Code section 1170.18, subdivision (f). This court previously affirmed an order denying defendant’s petition for recall of sentence and sentencing of those convictions pursuant to section 1170.18, subdivision (a), without prejudice to consideration of a new petition. (See People v. Ruiz (Sept. 27, 2016, H041767) [nonpub. opn.] (case No. H041767).)

The juvenile court found that I.R. committed a forcible rape and committed him to a ranch program at the county juvenile rehabilitation facility for one year. I.R. contends the juvenile court abused its discretion by ordering the ranch commitment instead of a less restrictive means of rehabilitation. We find no error and will affirm the order.

Defendant Han Quoc Hoang was convicted by jury trial of second degree murder (count 1, Pen. Code, § 187), by personally discharging a firearm causing death (§ 12022.53, subd. (d)). On appeal, he contends that the court prejudicially erred by instructing the jury, in accordance with CALCRIM No. 505, that to justify his killing of the victim on a theory of self-defense, defendant had to have acted “only because of” the reasonable belief that he was in imminent danger of death or great bodily injury. We find no instructional error and therefore must affirm the judgment.

Defendant Abdul Rashad (“Donovan”) Bynum shot a gun through a closed door into a bedroom. Five people were inside the room; one of them was injured. Defendant made statements to the police after his arrest and during a booking process in an unrelated case.
A jury found defendant guilty of crimes including four counts of assault with a semiautomatic firearm and one count of child abuse likely to cause great bodily injury. The jury also found true several sentencing enhancements, including five allegations that defendant personally used a firearm. (Pen. Code, § 12022.5, subd. (a).) The trial court imposed a 42-year sentence. At the time of sentencing, the court did not have the discretion to strike a section 12022.5, subdivision (a) firearm allegation.
We find no reversible errors concerning defendant’s Miranda rights. We affirm his convictions. However, we reverse defendant’s sentence.

A jury convicted defendant Raymond D. Martin of numerous sex crimes against his granddaughter, J.V.: oral copulation of a child under the age of 10 (Pen. Code, § 288.7, subd. (b) ; counts one & two), aggravated assault (oral copulation) of a child under the age of 14 (§ 269, subd. (a)(4); counts three & four), aggravated sexual assault (rape) of a child under the age of 14 (§ 269, subd. (a)(1); count five); and forcible lewd act (touching of vagina and breasts) on a child under the age of 14 (§ 288, subd. (b)(1); counts six & seven). The trial court sentenced defendant to 76 years to life in prison, consisting of 15 years to life for counts one, three, four and five, a 15-year-to-life sentence on count two, stayed under section 654, and the upper term of eight years each on counts six and seven, to run consecutively.
Defendant contends the prosecutor committed prejudicial misconduct by misstating the law during his rebuttal closing argument.