CA Unpub Decisions

Defendant Marcos Perez, Jr., was convicted of possession of methamphetamine and possession of methamphetamine for sale. On appeal, he contends the trial court failed to exercise its discretion and state reasons for its sentencing choice when it resentenced him after reducing the conviction underlying his principal term to a misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18). Alternatively, he contends defense counsel was ineffective for failing to object at resentencing. We affirm.

Defendant Jerome Driscoll sexually assaulted his girlfriend’s teenage sister. Weeks later, defendant beat his girlfriend severely and refused to let her leave their home. He was thereafter convicted of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), false imprisonment (Pen. Code, § 236), and forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)(C)). The trial court sentenced defendant to the upper term of four years for corporal injury and the upper term of 10 years for sexual assault, for a total determinate prison term of 14 years. Defendant’s three-year sentence for false imprisonment was stayed. (Pen. Code, § 654.)

Defendant David Adam Quevedo was charged with the murder of Omar Silva (Pen. Code, § 187, subd. (a) [count 1]) and possession of a firearm by a convicted felon (§ 29800, subd. (a)(1) [count 2]). In connection with count 1, the information alleged that defendant was an active participant in a criminal street gang and intentionally killed Omar to further its activities (§ 190.2, subd. (a)(22)); committed the crime for the benefit of, at the direction of, or in association with the gang (§ 186.22, subd. (b)(1)); and personally and intentionally discharged a firearm and proximately caused Omar’s death (§ 12022.53, subd. (d)). In connection with count 2, the information alleged that he served a prior prison term (§ 667.5, subd. (b)). Defendant subsequently admitted the prior prison term allegation.

Mother and Father appeal the juvenile court’s order terminating parental rights of their two sons, Za (born in 2012), and Zy (born in 2013), under Welfare and Institutions Code section 366.26. The parents contend the court committed reversible error by not complying with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). The parents argue San Bernardino County Children and Family Services (CFS) failed to provide notice to the Blackfeet tribe, and did not attempt to interview the paternal grandmother regarding the family’s Indian ancestry. The parents and CFS agree that the record on appeal fails to show that CFS complied with ICWA notice requirements. The parties therefore request this court to remand this case to the juvenile court for the limited purpose of compliance with ICWA.

Appellant Steven A., Jr., (father) appeals the order terminating his parental rights as to his daughters, P.R. and C.R. (the children). On appeal, he argues that the order must be reversed because: (1) the Riverside County Department of Social Services (DPSS) failed to make reasonable efforts to locate him and he did not receive notice of the jurisdiction/disposition hearing; and (2) his due process rights were violated when the juvenile court terminated his parental rights without making a finding of parental unfitness. We affirm.

Defendant shot and killed a thief who was stealing scrap metal from his property. Defendant appeals from judgment entered following a jury conviction for first degree murder (Pen. Code, § 187, subd. (a) ; count 1). The jury also found true three firearm allegations (§ 12022.53). Defendant pled guilty to counts 2 through 4 for possession of a firearm by a felon (§ 12021, subd. (a)(1)); possession of ammunition (§ 30305, subd. (a)(1)); and failure to register each residence (§ 290.010). The trial court struck one of the firearm allegations and two prior strike allegations. The court sentenced defendant to 50 years to life in prison. Defendant contends there was insufficient evidence of the first degree murder theories of lying in wait and of premeditation and deliberation. Defendant also contends the trial court erred in failing to instruct the jury sua sponte on voluntary manslaughter based on heat of passion. We reject defendant’s contentions and affirm the judgment.

Appointed counsel for defendant Donald Michael Gosnell has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.

A jury found defendant Carlos Juarez III guilty of first degree burglary (Pen.
Code, § 459), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), vandalism (§ 594, subd. (b)(1)), and shoplifting (§ 459.5). The trial court sentenced him to an aggregate term of four years eight months in prison: four years in this case and a consecutive eight months in another case. Defendant now contends his shoplifting conviction based on his return of shoes to a shoe store must be reversed because the trial court prejudicially erred by instructing the jury on the wrong theory of theft. According to defendant, the trial court should have instructed the jury on theft by false pretense rather than theft by larceny. We will reverse the shoplifting conviction and remand for retrial on count 4. We will otherwise affirm the judgment.

When a Walmart associate confronted defendant James Joseph Howard in the Walmart parking lot after observing defendant and his companion leave the store without paying for merchandise, defendant pepper-sprayed the associate’s eyes. A jury convicted defendant of robbery in the second degree (Pen. Code, § 211), second degree commercial burglary (§ 459), and assault (§ 240). The jury also found true an enhancement allegation that defendant personally used a deadly or dangerous weapon in the commission of the robbery and burglary. (§ 12022, subd. (b)(1).) The trial court sentenced defendant to six years in prison: the upper term of five years for the robbery plus one year for the weapons enhancement. It imposed but stayed a two-year sentence for the burglary and a 120-day sentence for the assault, requiring defendant to pay $120 in restitution to Walmart.

In 2015, Danielle A. (mother), who had an extensive history of domestic violence against Brian D. (father), threw a pair of scissors at him in their living room, missing him and narrowly missing two of their three minor children. The juvenile court declared the children to be dependants of the court under subdivision (b) of Welfare and Institutions Code section 300 on the ground that domestic violence between a mother and father while children are present endangers the children. Mother does not challenge that finding on appeal. However, the court found on identical allegations that the children were also described by subdivision (a) of section 300, which supports jurisdiction when a parent exposes her children to serious physical harm inflicted “nonaccidentally.” Mother contends this finding was unsupported by substantial evidence because nothing in the record suggests the children were at risk of nonaccidental harm.

J.B. (Father) and M.G. (Mother) appeal from an order terminating their parental rights to their daughters, S.B. and E.B., and their son, J.B., Jr. Mother contends the juvenile court erred in failing to apply the beneficial relationship exception set forth in Welfare and Institutions Code section 366.26, subd. (c)(i)(B)(1). Father joins in Mother’s position and also contends that the Department of Children and Family Services (DCFS) and the juvenile court failed to comply with the Indian Child Welfare Act (ICWA). We conclude that Mother has failed to show that preserving her parental rights would promote the children’s well-being to such an extent as to outweigh the benefit the children would gain in a permanent adoptive home. As for Father’s ICWA claim, DCFS concedes the issue and agrees to a limited remand to allow the juvenile court to ensure compliance with the ICWA.

Defendant and appellant Jeremy Smith (defendant) appeals his conviction of assault with a deadly weapon. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On August 28, 2017, we notified defendant of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. That time has elapsed, and defendant has submitted no brief or letter. We have reviewed the entire record, and finding no arguable issues, affirm the judgment.

A jury convicted defendant and appellant Rui Jun Sun of one count of assault with a deadly weapon and one count of criminal threats. (Pen. Code, §§ 245, subd. (a)(1), 422.) The jury also found that Sun used a deadly weapon in commission of the criminal threats offense. (§ 12022, subd. (b)(1).) Sun contends that the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of attempted criminal threats. We reject this contention and affirm the judgment.

A jury convicted defendant Pedro Navarro of first degree murder and personal use of a deadly weapon. On appeal, defendant contends that (1) the trial court committed reversible error in failing to sua sponte instruct the jury on third party culpability, and (2) defendant’s trial counsel was prejudicially ineffective in failing to request instructions on third party culpability. We affirm.