CA Unpub Decisions

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we shall affirm the judgment.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

After his motion to suppress evidence was denied, defendant Jason Matthew Agers pleaded no contest to possession of MDMA [1] for sale (Health & Saf. Code, § 11378—count one) and possession of marijuana for sale (id., § 11359—count two), and admitted a prior drug-related conviction (id., § 11370.2, subd. (b)) and a prior prison term (Pen. Code, § 667.5, subd. (b). [2])

Within a three-week period, defendant Felipe Valadez twice fled from police officers in his vehicle while intoxicated and while in possession of large amounts of marijuana. After both car chases, police had to use force to subdue defendant, and both times the car chases were recorded by patrol car dashboard camera (dash cam). Nine months later, defendant was arrested for shoplifting $224.95 worth of merchandise from Wal-Mart.

Defendant Ramces Orellana was charged with committing 22 lewd acts on his stepdaughter H. when she was 11 and 12 years old. A jury found him guilty of 13 of those counts (nine counts of having sex with H., two counts of touching her breasts, and two counts of her touching his penis). The jury could not reach verdicts on the remaining nine counts of having sex with H., so the People dismissed those nine. The court sentenced him to 32 years in prison.
On appeal, defendant raises the following six contentions: (1) trial counsel was ineffective for failing to call an expert witness, so the trial court should have granted defendant’s motion for new trial; (2) the People impermissibly split a single offense of continuous sexual abuse of a child into multiple charges of molestation; (3) the trial court erred in admitting evidence of child sexual abuse accommodation syndrome; (4) the trial court violated his constitutional rights by admitting his uncharged sex offenses pursuant to Evidence Code section 1108; (5) the trial court abused its discretion in admitting the uncharged sex offenses under state law; and (6) these cumulative errors require reversal. Disagreeing with these contentions, we affirm.

Over two years, defendant Frank Lee Dearwester sexually molested H., who was the teenage daughter of his girlfriend. The molests occurred while defendant lived with H. and her mother in the mother’s house and began a few weeks after defendant caught H. watching Internet pornography. Defendant orally copulated H., had her orally copulate him, touched her breasts with his hands and mouth, and forced her to have intercourse with him. H. eventually told friends about the molests in response to a friend’s concern that H. was cutting herself. H. then made pretext phone calls to defendant in which she alleged she was pregnant. Defendant said “it’s impossible” because he “had a vasectomy,” and told H., “[t]here’s nothing to be scared about” and he loved her. After defendant was arrested, he approached fellow inmate William McFadden in jail. Defendant brought up that McFadden’s nickname was shooter and McFadden was “like some hit man or something.” He said he wanted a little girl named H. killed. He drew two maps with directions to the home and wrote down a physical description of H. and a schedule of times when H. would be home. He “want[ed] to get out” and for him to “come home” he needed to have H. killed. He offered McFadden $4,000 to murder H. and then said he could give him more when he came home.

A jury found defendant Oliver Gray guilty of five counts of robbery and found that he had personally used a firearm in committing the crimes, and defendant pled no contest to being a felon in possession of a firearm. After finding that defendant had a strike prior, the trial court sentenced him to an aggregate term of 30 years and four months in prison.

On appeal, defendant contends the trial court erred in failing to suspend proceedings and appoint the director of the regional center for the developmentally disabled to examine him to determine his competence to stand trial. Defendant also contends the trial court erred in failing to conduct an inquiry when the jury foreperson complained during deliberations that one of the jurors appeared to be unable to comprehend the reasonable doubt instruction. We find no error and affirm.

At a joint trial in April 2013, a jury found codefendants Aleksandr Tikhomirov and Nicolai Tcacsin guilty of grand theft and felony vandalism in Citrus Heights in November 2011, and the receipt of stolen property and misdemeanor possession of drug paraphernalia in Elk Grove in December 2011. (Pen. Code, §§ 487, subd. (a), 594, subd. (a), 496, subd. (a) & Health & Saf. Code, § 11364.1, subd. (a).) The trial court suspended imposition of sentence and granted probation to both defendants, conditioned inter alia on a jail sentence.

Defendant Gregory Martel Stanley challenges the trial court ’s denial of his motion to suppress evidence obtained pursuant to a search warrant. Defendant contends the trial court erred in denying his motion on the basis that: (1) there was not probable cause to issue the search warrant because (a) Deputy Crabtree misled the magistrate by failing to include in his affidavit that defendant had admitted to firing a shot at the victim using the Kahr nine-millimeter weapon, seized by officers when they arrested defendant and (b) the items described in the search warrant were not germane to the crime the officers were investigating; and (2) the hydrocodone and marijuana seized by the officers were not items described in the search warrant. We conclude the trial court did not err and affirm the judgment.

The trial court sentenced defendant Timothy Scott Johnson to state prison after finding he had violated probation for the third time and determining a prior conviction for first degree burglary in Oregon was a strike that rendered defendant ineligible for a county jail term. (Pen. Code, § 1170, subd. (h)(3).)[1] Contending there is insufficient evidence the Oregon conviction qualifies as a strike, defendant requests remand for resentencing. We conclude remand is necessary for the trial court to obtain further evidence as to the Oregon conviction to determine whether the conviction qualifies as a strike.

Defendant Steven John Lopez III was convicted by jury of unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)), possession of burglary tools (Pen. Code, § 466), and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). In a bifurcated proceeding, the trial court found true allegations defendant was convicted of unlawful taking or driving of a vehicle on two prior occasions (Pen. Code, § 666.5, subd. (a)) and he had served three prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to serve an aggregate term of six years in the county jail under Penal Code section 1170, subdivision (h), with execution of the concluding two years suspended, during which defendant shall be subject to mandatory supervision, and imposed other orders.

Defendant raises one contention on appeal. He claims the trial court prejudicially erred and violated his constitutional rights by admitting evidence he was previously convicted of unlawful taking or driving of a vehicle, offered by the prosecution to prove his intent to permanently or temporarily deprive the vehicle’s owner of title or possession and to negate defendant’s statement to police that he believed the car belonged to his girlfriend. We conclude the challenged evidence was admissible under Evidence Code section 1101, subdivision (b). [1] Nor did the trial court abuse its discretion in concluding, under section 352, the probative value of the evidence was not substantially outweighed by the danger of undue prejudice. In light of these conclusions, we also conclude defendant’s federal constitutional rights were not violated by admission of the challenged evidence. Accordingly, we affirm the judgment.

Shelly Lamont Small appeals from the order denying his motion to modify the restitution fine imposed as part of his sentence. We affirm.

On October 19, 1998, a jury convicted Small of the first degree murder of Patricia Oliverires (Pen. Code, § 187, subd. (a)) and found he had personally used a firearm to commit the offense (former Pen. Code, § 12022.5, subd. (a)).

In October 2012, Andre Pierre Boyer was convicted of sexual battery, requiring him to register as a sex offender. In this case, he was charged with one count of failing to register (Pen. Code, § 290, subd. (b)) [1] and one count of disobeying a court order (§ 166, subd. (a)(4)). He pled no contest to the counts and was sentenced to 16 months in state prison. He claims a component of his plea was that the trial court would delay his sentencing long enough for him to accumulate enough presentence credits to avoid actually physically serving any time in state prison. Although the trial court did so, he was sent to a state prison for what appears to be an overnight stay for processing and he has since been released. He argues that was a breach of his plea agreement. Because he has been released and we can grant no effective relief to him, we dismiss the appeal as moot.

Heather Carter appeals from a judgment of conviction for offering to sell a controlled substance (Health & Saf. Code, § 11379, subd. (a)) [1] and possession for sale of a controlled substance (§ 11378). Her appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. We have reviewed the entire record and find no arguable issue. We affirm.

As set forth in our prior opinion (People v. Bailey (July 16, 2013, B235380) [nonpub. opn.]), Bailey and three other individuals tried to burglarize two residential dwellings in Los Angeles. The jury convicted him on both counts of attempted residential burglary (Pen. Code, §§ 664/211) and found the gang allegation to be true. Bailey admitted that he had suffered a prior juvenile adjudication of a serious felony, within the meaning of the Three Strikes law. Following the entry of judgment, Bailey appealed. On July 16, 2013, we affirmed the judgment of conviction, but struck the

Y.B. (Mother) is the mother of Oscar S. (Oscar), born January 2007. Oscar S. (Father) was found to be his presumed father. [1] Mother appeals from the jurisdictional and dispositional orders issued on December 30, 2013, placing Oscar under the jurisdiction of the juvenile court, pursuant to Welfare and Institutions Code section 300, subdivision (b), [2] removing him from Mother’s custody and placing him with his maternal grandmother. We amend the minute order of December 30, 2013 to conform with the court’s oral findings sustaining count (b-1) and affirm as modified.