CA Unpub Decisions

Moninder S. Tank (Husband) appeals from an order modifying his monthly child support to Paramdeep Tank (Wife) from $2,000 to $2,478. Husband contends the court erred in modifying his child support because the parties had stipulated to Wife receiving the lower amount. Husband alternatively contends the court erred in calculating his child support in two respects: (1) by basing its calculations on Wife having zero income, and (2) by including Husband's new spouse's income in its calculations.
We conclude the court had the authority to modify child support notwithstanding the parties' stipulated agreement. We additionally conclude there is substantial evidence to support the court's determination Wife had no net income for purposes of calculating child support.

A jury convicted David A. Carter of robbery and assault with a deadly weapon. For both convictions, the jury found true allegations Carter personally used a firearm and personally inflicted great bodily injury. For the robbery conviction, the jury also found true allegations Carter personally and intentionally used a firearm. For the assault with a deadly weapon conviction, the jury also found true allegations Carter personally used a dangerous and deadly weapon and personally inflicted great bodily injury. Additionally, Carter admitted having a prior serious felony conviction, a prior strike conviction, and a prior prison commitment conviction. The court sentenced Carter to an aggregate term of 22 years in prison. The sentence included a consecutive 10-year prison term for the firearm enhancement under Penal Code section 12022.53, subdivision (b).

Defendant Timothy Thomas Stayer purports to appeal from an order denying his postjudgment motion to modify his sentence by converting the $10,000 restitution fine to a term of imprisonment at the rate of $30 per day, to be served concurrent with the term of imprisonment imposed for the conviction for which the restitution fine was imposed.
Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. In a supplemental brief, defendant contends that he lacks ability to pay the restitution fine and that trial counsel failed to provide competent assistance of counsel in that counsel failed to object to imposition of the restitution fine.

Following a jury trial, defendant Randy Howard Francis was convicted of first degree murder (Pen. Code, § 187), elder abuse (§ 368, subd. (b)(1)), criminal threats (§ 422), first degree robbery (§ 211), kidnapping (§ 207, subd. (a)), and carjacking (§ 215), along with enhancements for death resulting from great bodily injury (§ 12022.7, subd. (e)) and personal use of a weapon on a vulnerable victim (§§ 12022, subd. (b)(1), 667.9, subd. (a)). He was sentenced to serve a state prison term of 25 years to life plus seven years four months.

Appointed counsel for defendant Robert Lloyd Tyler has 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.) We find no errors that arguably would result in a disposition more favorable to defendant and therefore affirm the judgment.

Convicted by a jury of second degree robbery (Pen. Code, § 211—count one); unlawful taking of a vehicle with a prior conviction of the same offense (Veh. Code, § 10851, subd. (a)—counts two through four), felony grand theft (Pen. Code, § 487, subd. (a)—count five), and misdemeanor larceny (Pen. Code, § 484, subd. (a)—counts six and seven), and subsequently found by the trial court to have committed two prior strikes, defendant David Wayne Ferris contends the trial court erred prejudicially as to count one by failing to instruct the jury sua sponte on the lesser included offense of grand theft from the person. We shall affirm.

Defendant Brian Keith Spears was convicted of nine counts of sex-related crimes against four young girls, for which he was sentenced to 240 years to life plus four years four months in state prison. Following his first appeal, this court modified his sentence and remanded for further proceedings. On remand, defendant admitted a prior conviction with use of a firearm in the commission of that prior offense. The trial court resentenced him to 210 years to life plus four years four months in state prison.

Defendant Francisco Cruz Ramirez had sex with his friend’s wife, the victim, while she was unconscious. Charged with both rape of an intoxicated person (Count 1) and rape of an unconscious person (Count 2), a jury acquitted him of the first count and was unable to reach a unanimous verdict with respect to the second count, resulting in a mistrial as to that count. Upon retrial, the defendant was convicted by jury of Count 2 and sentenced to serve six years in state prison.

Carlos Aguirre appeals from the judgment entered after the trial court determined that he was a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.) Appellant contends that the evidence does not support the finding that his severe mental disorder was a cause of or an aggravating factor in the commission of the commitment offense. (§ 2962, subd. (b).) We affirm.

B.L.M. appeals an order finding him to be a mentally disordered offender (MDO) and committing him for treatment at Atascadero State Hospital. (Pen. Code, § 2960 et seq.) Appellant contends that the trial court erred in receiving expert opinion testimony in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We affirm.

A jury convicted Eunsung Ji of kidnapping his ex-girlfriend. Ji appeals, arguing the trial court erred in admitting evidence of a prior incident of domestic violence under Evidence Code section 1109. We conclude the argument is forfeited and meritless.
The jury also convicted Ji of the lesser included offense of false imprisonment. We agree with Ji and the People’s concession that the conviction must be reversed. Finally, the jury convicted Ji of making a criminal threat. We agree with Ji and the People’s concession that, when the trial court stayed execution of sentence for that conviction under Penal Code section 654, the court should not have ordered Ji to serve that sentence concurrently.

Following his conviction on a single count of attempted murder, appellant Joe Polk was sentenced to 25 years to life pursuant to the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)), plus 25 years to life for a firearm enhancement (§ 12022.53, subd. (d)), plus 10 years for two prior felony convictions (§ 667, subd. (a)(1)). Sentences on two other firearm enhancements under section 12022.53 also were imposed but stayed. Appellant contends (1) that the trial court abused its discretion in denying his motion to strike his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and (2) that the matter should be remanded for the trial court to exercise its discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) whether to strike the firearm enhancements. For the reasons stated below, we conclude the trial court did not abuse its discretion in denying appellant’s Romero motion.

Appellant Michael Rose pled no contest to one count of possession for sale of a controlled substance (fentanyl), in violation of Health and Safety Code section 11351. He admitted an allegation under section 11370.2, subdivision (a), that he had suffered a prior conviction for violating section 11351. He was sentenced to county jail for a total of six years (the midterm of three years for the substantive offense, plus three years for the prior conviction enhancement).
Appellant timely appealed from the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. His attorney originally filed a brief under People v. Wende (1979) 25 Cal.3d 436, and appellant filed a supplemental brief. At appellant’s request, we struck those briefs and granted appellant permission to file a new supplemental brief, in which he contends that his sentence enhancement must be stricken under recently amended section 11370.2. The People agree and so do we.

Eugene E. Cunningham appeals from a judgment following his conviction for attempted voluntary manslaughter, shooting at an occupied motor vehicle, and possession of a firearm by a felon. He contends his conviction for shooting at an occupied motor vehicle should be reversed because the trial court erred in failing to instruct the jury about the lesser included offense of grossly negligent discharge of a firearm. In addition, Cunningham seeks remand to allow the trial court the opportunity to exercise its discretion under recently amended Penal Code section 12022.5 to strike or dismiss the firearm enhancements attendant to his attempted voluntary manslaughter convictions. We remand to allow the trial court to exercise its discretion under section 12022.5 and correct the abstract of judgment for a clerical error. We otherwise affirm the judgment.