CA Unpub Decisions

Pursuant to a plea agreement, appellant Filomeno Carlos Badillo pled no contest to making criminal threats (Pen. Code, § 422). [1] He was granted probation for five years. Approximately six years later, the trial court denied appellant’s motion made pursuant to section 17, subdivision (b)(3),[2] to reduce his felony to a misdemeanor. He contends the trial court abused its discretion in denying the motion. We reject the contention and affirm the judgment.

Defendant and appellant Corey Sullivan entered into a case settlement agreement with the prosecution in which he (1) plead no contest to two counts of second degree robbery (Pen. Code, § 211);[1] (2) admitted suffering a serious or violent felony conviction (§ 667, subd. (a)), and a conviction under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); (3) admitted that one of the robberies was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); and (4) admitted that a principal in one of the robberies was armed with a deadly or dangerous weapon (§ 12022, subd. (a)(1)). Pursuant to the settlement agreement, nine additional felony counts were dismissed and defendant was sentenced to 28 years in state prison.
Defendant filed a notice of appeal. The notice indicated the appeal is based on the sentence or other matters occurring after the appeal, and the appeal challenges the validity of the plea or admission. Defendant’s request for a certificate of probable cause was denied by the trial court.
This court appointed counsel to represent defendant on appeal. On December 11, 2013, appointed counsel filed a brief raising no issues, asking this court to independently review the record for arguable appellate contentions under People v. Wende (1979) 25 Cal.3d 436. Defendant was advised of his right to file a supplemental brief within 30 days. Defendant’s request for an extension of time to file his supplemental brief was granted.
On January 14, 2014, defendant filed a supplemental brief raising multiple issues, including improper denial of his motion for severance, insufficiency of the evidence to support his conviction as an aider and abettor, erroneous failure to dismiss the gang enhancement allegation, ineffective assistance of trial counsel due to a failure to advise defendant regarding potentially meritorious grounds for appeal and urging defendant to accept the case settlement rather than risk 94 years in prison if convicted at trial, and his guilty plea was involuntary.
The legal effect of a no contest plea to a felony is the same as a plea of guilty. (§ 1016, subd. 3; People v. Wallace (2004) 33 Cal.4th 738, 749.) Defendant’s contention that the trial court erred in denying his motion to sever is not reviewable on appeal following a guilty plea. (People v. Haven (1980) 107 Cal.App.3d 983, 985-986.) All of defendant’s contentions regarding the sufficiency of the evidence are also not cognizable on appeal. A guilty plea concedes the sufficiency of the evidence to prove guilt beyond a reasonable doubt and waives any right to question the sufficiency of the evidence on appeal. (People v. Robinson (1997) 56 Cal.App.4th 363, 369.)

Edward P., born in September 2008, is the child of Teresa V. (mother) and Edward A. P. (father).[1] On January 23, 2013, the juvenile court declared him a dependent of the court and ordered him placed with father. Mother appeals from this order, contending that the dependency petition does not state a proper basis for jurisdiction, substantial evidence did not support the juvenile court’s findings, and the court failed to order compliance with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
We conclude that the petition alleges a basis for jurisdiction and substantial evidence supports the juvenile court’s findings. We therefore affirm the court’s exercise of jurisdiction. However, because the juvenile court erred in concluding that ICWA did not apply, we remand so that proper ICWA notice may be given.

Defendant Ronald Pena appeals from the judgment entered following a jury trial in which he was convicted of three counts of attempted murder, three counts of assault with a firearm, and a single count of possession of a firearm by a felon. Defendant admitted an allegation that he had suffered a prior serious or violent felony conviction within the scope of the “Three Strikes” law (Pen. Code, § 667, subds. (b)–(i)) and was sentenced to a second strike term.[1] Although he was not asked to admit the allegation, defendant’s sentence included a prior serious felony enhancement pursuant to section 667, subdivision (a)(1).
Defendant contends the trial court erred by denying his motion for a judgment of acquittal at the close of the prosecution’s case-in-chief with respect to one of the three counts of attempted murder. We conclude one of defendant’s attempted murder convictions must be reversed because the evidence at the close of the prosecution’s case-in-chief was insufficient to show that defendant specifically intended to kill more than two people. Thus the trial court should have granted defendant’s motion for acquittal with respect to one of the attempted murder counts.
Defendant further contends that he was not advised of his rights before admitting the second strike allegation (§ 667, subd. (b)–(i)) or the prior serious felony enhancement allegation (§ 667, subd. (a)). The Attorney General concedes this point. We further note that the trial court only asked defendant to admit the strike allegation, not the prior serious felony enhancement allegation (§ 667, subd. (a)(1))and the prosecutor offered no proof of that enhancement allegation.

Defendant Benjamin Antonio Gonzalez appeals from the judgment entered following a jury trial in which he was convicted of numerous counts of sodomy, oral copulation, and lewd acts against children under the age of 14.
Defendant’s initial argument is that the trial court erred in imposing a consecutive 25 years to life sentence on count 2 based on a multiple victim allegation made pursuant to Penal Code section 667.61, subdivisions (a) and (e)(4).[1] Defendant is correct that the trial court erred, but the trial court’s error was that Penal Code section 667.61 is inapplicable to the offense charged in count 2, as the Attorney General acknowledges. Moreover, as the Attorney General also acknowledges, the trial court erred in applying section 667.61 to several other counts to which it was inapplicable.
We conclude the trial court improperly sentenced defendant pursuant to section 667.61 with respect to defendant’s conviction for offenses that are outside the scope of section 667.61. For the same reason, we conclude the jury improperly found true section 667.61 allegations with respect to those offenses and strike those findings.
The Attorney General argues that the trial court erred by failing to impose a mandatory parole revocation fine and incorrectly imposed a term of 15 years to life, rather than 25 years to life as required under the 2010 amendment of section 667.61 for one of the defendant’s convictions of violating section 288, subdivision (a). We agree. We reverse in part as to the foregoing and affirm in all other respects. Accordingly, we remand for resentencing.[2]

Marcus Leroy Ware appeals from the judgment entered upon his conviction by jury of battery with serious bodily injury (Pen. Code, § 243, subd. (d), count 1),[1] and assault with a deadly weapon (§ 245, subd. (a)(1), count 2). As to the assault count, the jury found true the allegation that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding, appellant admitted a prior conviction of a serious or violent felony (§§ 1170.12, subds. (a)-(d); 667, subds. (a)(1), (b)-(i); 667.5, subd. (b)).
The trial court sentenced appellant to a total term of 16 years in state prison. On count 1, the trial court imposed the upper term of four years doubled pursuant to the “Three Strikes” Law, plus three years pursuant to section 12022.7, subdivision (a), plus five years for appellant’s prior conviction pursuant to section 667, subdivision (a). On count 2, the trial court imposed the midterm of three years to be served concurrently with the count 1 term, and imposed but stayed the section 12022.7 sentence pursuant to section 654. The trial court awarded appellant 378 days of presentence custody credit.
Appellant contends the great bodily injury enhancement on count 1 should be stricken, and the sentence on count 2 should be stayed pursuant to section 654.
The section 12022.7, subdivision (a) enhancement on count 1 must be stricken and the matter remanded for resentencing consistent with this opinion. We otherwise affirm the judgment.

Eduardo Rodriguez appeals from the judgment entered following his conviction by jury on six counts: kidnapping to commit another crime (Pen. Code, § 209, subd. (b)(1)),[1] sexual penetration by a foreign object (§ 289, subd. (a)(1)(a)), attempted forcible rape (§§ 664/261, subd. (a)(2)), kidnapping (§ 207, subd. (a)), and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). He contends that the trial court erred in failing to declare a doubt as to his mental competence and hold a hearing pursuant to section 1368. He also argues that the court erred in imposing a $5,000 fine pursuant to section 667.6. We conclude that the court did not err in failing to declare a doubt as to appellant’s mental competence. However, the fine under section 667.6 was erroneously imposed. We strike the $5,000 fine and order the imposition of the mandatory court security fee and criminal conviction assessment. In all other respects the judgment is affirmed.

B.L. appeals after the court ordered him a ward of the juvenile court (Welf. & Inst. Code, § 602) as he had engaged in a battery upon his grandmother and his cousin (Pen. Code, § 242) and malicious mischief (Pen. Code, § 594, subd. (a)). He was ordered removed from the custody of his grandmother, his legal guardian, and suitably placed. The maximum term of confinement was one year four months, less 24 days.
He contends the evidence is insufficient to support the juvenile court’s orders that he committed battery. The contention lacks merit.

Appellant Armando DeJesus Garcia was convicted of attempted murder, kidnapping to commit rape, forcible rape and assault with a deadly weapon. The jury found true the allegations that appellant used a deadly weapon in the commission of the kidnapping and inflicted great bodily injury in the commission of the kidnapping and assault. The jury also found true the allegation that the movement of the victim during the kidnapping substantially increased the risk of harm. The trial court sentenced appellant to a total term of 25 years to life in state prison.
Appellant appeals from the judgment of conviction, contending the trial court’s admission of the victim’s preliminary hearing testimony violated his constitutional right to confrontation and the court’s denial of his motion to dismiss the attempted murder charge violated his constitutional right to due process.

Naples Coalition, Environmental Defense Center, and Surfrider Foundation appeal the denial of their mandamus petition to set aside Santa Barbara County Board of Supervisors' (County) approval of the Santa Barbara Ranch Development Project (project) and certification of the revised final environmental impact report (FEIR). The trial court concluded that the project did not violate the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) and that substantial evidence supported the finding that the project was consistent with applicable policies and development standards in the Santa Barbara County Land Use and Development Code. We affirm.

In this consolidated appeal concerning the administration of Rexford and Martha Chamberlain’s trust and probate estates, appellant Rex Chamberlain appeals from orders requiring him to pay attorney’s fees for counsel who represented respondent Sidne Ventling, the trustee and administrator, in connection with Ventling’s petitions to deposit Rex’s share of the estates with the Los Angeles County Treasurer. (See Prob. Code § 11851(b).)[1] We affirm.

Appellants Jeremiah Baskin and Traveon Hill were convicted of attempted second degree robbery and second degree commercial burglary. Appellants were charged with the murder of accomplice Brandon Lincoln under the provocative act doctrine, but the jury found them not guilty of that charge. The jury found true the allegations that the burglary and attempted robbery were committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subd. (b)(1).[1] Appellant Hill admitted that he had suffered two prior serious felony convictions within the meaning of the Three Strikes law and section 667, subdivision (a), and that he had served a prior prison term within the meaning of section 667.5, subdivision (b). Appellant Baskin admitted that he had suffered a prior serious felony conviction within the meaning of the Three Strikes law and section 667, subdivision (a), and that he had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant Baskin to a total term of 16 years in state prison and appellant Hill to a term of 30 years to life in state prison.
Appellants appeal, contending the trial court: made numerous improper and prejudicial remarks during jury voir dire; erred in instructing the jury on consciousness of guilt; and in denying the joint defense motion to bifurcate the trial on the gang enhancements. Appellants further contend there is insufficient evidence to support the true finding on the gang enhancements. Appellants also contend the prosecutor committed misconduct. Additionally appellants contend the trial court abused its discretion in denying their motions to strike their prior convictions for sentencing purposes. We affirm the judgments of conviction.

Appellant Chavis David Carter challenges his convictions for robbery and grand theft. He contends the trial court contravened his statutory right to a speedy trial, admitted identification evidence based on an unduly suggestive photographic lineup, and imposed an improper sentence. We reject his challenges and affirm.

A husband and wife created a revocable intervivos family trust with themselves as trustors, trustees and beneficiaries. They then caused the trust to take out a loan from a lender and personally guaranteed the loan. When the borrower defaulted on the loan, the lender nonjudicially foreclosed on real property securing the loan and then sought a deficiency judgment against the guarantors, which the trial court granted. We reverse. California’s nondeficiency statutes prevent a lender from obtaining a deficiency judgment against a primary obligor after nonjudicial foreclosure. A guarantor of a loan to an inter vivos trust who is also the trustor, trustee and beneficiary of the trust is considered to be a primary obligor, and is not liable for any deficiency following nonjudicial foreclosure.