CA Unpub Decisions

A jury found defendant and appellant, Joseph Ray Rice (defendant), guilty as charged of first degree murder (Pen. Code § 187, subd. (a); count 1),[1] possession of a firearm by a felon (§ 12021, subd. (a)(1); count 2), and street terrorism (§ 186.22, subd. (a); count 3). The jury also found true the gang (§ 186.22, subd. (b)(1)) and firearm use (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)) enhancements alleged in connection with the murder charge alleged in count 1, and the gang enhancement alleged in connection with the felon in possession of a firearm charge alleged in count 2. Defendant admitted the allegations that he had previously been convicted of a serious or violent felony within the meaning of the three strikes law (§ 667, subds. (b)-(i)), (2)), and a serious felony (§ 667, subd. (a)(1)), and that he had served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to serve a determinate term of 15 years to life in state prison, followed by an indeterminate term of 75 years to life.[2]

In two dependency appeals, consolidated for purposes of oral argument and decision, M.H., the father of A.C., challenges the orders made by the juvenile court denying father’s three requests to represent himself and father’s additional request for gas vouchers so that he could conduct visitation in Landers in San Bernardino County rather than Cabazon in Riverside County.
A.C. was returned to the custody of father and mother in October 2012 and the dependency case was dismissed by the juvenile court in January 2013. (E057405; Evid. Code, § 459.) After reviewing the record, we have determined that the issues raised by father no longer present a justiciable controversy. Therefore, the appeals are DISMISSED as moot.

A jury convicted defendant Jamil Urail Everett of possession of methamphetamine (Health and Saf. Code, § 11377;[1] count 1); being a felon in possession of a firearm (§ 12021, subd. (a)(1)); and possession of a false driver’s license (§ 529.5, subd. (c); count 3). The jury also found true, as to counts 1 and 2, allegations that defendant committed the crimes while released on bail (§ 12022.1). Defendant admitted he had one prison prior (§ 667.5, subd. (b)). The trial court sentenced defendant to eight years four months in prison.
Defendant contends on appeal that the trial court abused its discretion in denying his motion to continue the trial. Defendant also asserts that the trial court committed reversible error in admitting into evidence a jailhouse audio recording and his statement given to the police while he was in the hospital. We reject defendant’s contentions and affirm the judgment.

Defendant Juan Manuel Jiminez is serving 30 years in prison after pleading guilty to charges stemming from sexually abusing his stepdaughter and niece over several years. Defendant contends the trial court erred when it accepted his guilty plea after he commented during the plea colloquy “It is a lot of years. But there’s nothing I can do about it anyway” without further questioning him to determine whether he was voluntarily waiving his constitutional rights. As discussed below, we find this to be merely an understandable comment about the situation in which defendant had placed himself, and therefore find no error.

A jury convicted defendant, Kevin Brazier, of attempted murder, which was premeditated and deliberate (Pen. Code, §§ 664/187, subd. (a)),[1] and making criminal threats (§ 422), during both of which he used a knife (§ 12022, subd. (b)(1)), and assault with a deadly weapon (§ 245, subd. (a)(1)). In bifurcated proceedings, the court found true allegations that he had suffered a serious prior conviction (§ 667, subd. (a)) and a strike prior (§ 667, subds. (c) & (e)(1)). He was sentenced to prison for 14 years to life plus 6 years.

Dartagnan Andre Gary, the defendant, was charged with murder in the shooting death of Jared D., on a street near a house where a party was held. The shooting followed a gang challenge to the Gutta[1] Squad Mafia street gang, of which defendant was an associate. A jury convicted defendant of first degree murder (Pen. Code,[2] § 187, subd. (a)), found that a firearm was discharged, causing death, in the commission of the crime (§ 12022.53, subd. (d)), and the crime was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Defendant was also convicted of a active participation in a criminal street gang. (§ 186.22, subd. (a).) He was sentenced to an aggregate term of 50 years to life and appealed.
On appeal, defendant argues (1) independent review of the record of in camera proceedings pertaining to discovery of information regarding an ongoing investigation is required; (2) his conviction, based upon prior inconsistent statements of witnesses, violated his right of confrontation; (3) his conviction is not supported by substantial evidence; (4) his due process rights were violated by the admission into evidence of a witness’s photographic lineup identification; (5) his trial attorney was ineffective for failing to object to allegedly coerced statements made by a witness who identified defendant as the shooter; (6) reading CALCRIM No. 223 constituted reversible error because it shifted the burden of proof; (7) reading CALCRIM No. 224 misstated the prosecutor’s burden of proof and constituted structural error for instructing the jury it must determine whether defendant was innocent as opposed to not guilty; and (8) defendant’s sentence on count 2 should be modified to conform with the oral pronouncement. We remand for resentencing on count 2, but otherwise affirm.

Defendant and appellant, Edward George Keller, Jr. (defendant), appeals from the judgment entered after a jury found him guilty of second degree murder, as a lesser included offense of the charged crime of first degree murder, found true the allegation that he personally used a deadly weapon in the commission of the crime, and the trial court sentenced him to serve a determinate term of one year in state prison, followed by an indeterminate term of 15 years to life.
Defendant raises two claims of error in this appeal. First, he contends his confession to the police was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) because the prosecution did not show that defendant voluntarily waived his right to remain silent and his right to have his attorney present. Therefore, defendant contends the trial court should have granted his motion to exclude that confession from evidence. Defendant’s second claim of error is that several jurors engaged in prejudicial misconduct by commenting during the jury’s deliberations on the fact that defendant had not testified at trial and, therefore, the trial court erred in denying defendant’s motion for a new trial based on that misconduct.
We will affirm the judgment because we conclude no error occurred.

Defendant Callie Marie Simpson appeals a judgment entered after her motion to withdraw her guilty plea was denied. She contends that the denial of the motion was an abuse of discretion and, in the alternative, that she should be allowed to withdraw her plea because the trial court remanded her into custody pending her motion to withdraw her plea, thus violating her due process right to the benefit of her plea bargain, which provided that she could remain free of custody pending sentencing. She also contends that her right to equal protection was violated by the trial court’s failure to award her presentence conduct credits pursuant to the version of Penal Code section 4019 which became operative on October 1, 2011.
We will affirm the judgment but will remand for recalculation of defendant’s presentence custody credits.

Tyrone V. appeals a judgment declaring his minor daughter, T.V., a dependent of the juvenile court under Welfare and Institutions Code[1] section 300, subdivision (b), and removing T.V. from his custody. Tyrone contends the petition filed on T.V.'s behalf does not plead facts sufficient to show she had been seriously harmed or was at substantial risk of harm. He also contends the evidence is insufficient to support the court's jurisdictional findings and dispositional order. We affirm the judgment.

Pursuant to a plea agreement, defendant Kristi King Sindelar pled guilty to two counts driving under the influence of alcohol/drugs with three or more prior DUI convictions. (Veh. Code, § 23152, subd. (a).) With respect to one count, she also admitted the truth of an allegation that she had a three strike prior within the meaning of Penal Code section 667, subdivisions (b) through (i). The trial court sentenced Sindelar to 40 months in prison, awarded her a total of 588 days of actual and Penal Code section 4019 credits, and imposed various fines and fees.

Dustin H. appeals juvenile court orders declaring William C. to be Dayton J.'s presumed father, ordering Dayton placed with William and terminating jurisdiction. Dustin contends the court erred by denying his request for paternity testing and the court misinterpreted the legal effect of a stipulation he executed with Dayton's mother, Amanda J., regarding paternity. He also argues he is Dayton's presumed father under Family Code section 7611, subdivision (c)[1] and the court incorrectly weighed the presumptions of section 7611, subdivision (d) to determine that William, rather than he, is Dayton's presumed father. We affirm the orders.

Vera Nelson appeals from an order extending her involuntary commitment as a mentally disordered offender (MDO) for another year. She argues there is insufficient evidence to support the MDO finding. She also contends the court erroneously excluded evidence on the option of outpatient treatment, and applied the wrong standard to decide the outpatient issue. We reject these contentions and affirm.

Kerry Lee Simpson appeals from a domestic violence prevention restraining order issued against him for the protection of his former girlfriend, Stephanie J. Boone, and her two children. He contends that the trial court erred in denying his request for a continuance of the hearing on Boone's request for a restraining order because he was entitled to an automatic continuance under Family Code[1] section 243, subdivision (d). He also contends that the court abused its discretion in issuing the restraining order. We agree that Simpson was entitled to an automatic continuance under section 243 and, accordingly, remand the matter for a new hearing on Boone's request for a restraining order.

A jury convicted Leonard Earl Scroggins, Jr., of a committing a forcible lewd act on a child (Pen. Code, § 288, subd. (b)(1);[1] count 1), attempted kidnapping for purposes of committing a lewd act on a child (§§ 209, subd. (b)(1), 664; count 2), assault with a knife (§§ 245, subd. (a)(1), 1192.7, subd. (c)(23); count 3), robbery (§ 211; count 4), kidnapping for robbery (§ 209, subd. (b)(1); count 5) and two counts of attempted robbery (§§ 211, 664; counts 6 and 7). As to counts 1, 2, 5 and 6, the jury found true allegations Scroggins used a knife in the commission of the crimes (§ 12022, subd. (b)(1)). As to counts 5 and 6, the jury also found true allegations Scroggins inflicted great bodily injury (§ 12022.7, subd. (a)). Scroggins additionally admitted having two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)(1)), two prior prison commitment convictions (§ 667.5, subd. (b)), and a prior sex crime conviction (§§ 667.61, subds. (a), (c) & (d), 667.71, subd. (a). The trial court sentenced Scroggins to an indeterminate sentence of 150 years to life plus a determinate sentence of 45 years.
Scroggins appeals, contending: (1) the trial court erroneously denied his motion to suppress evidence obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the trial court failed to hold a hearing to determine whether he was competent to stand trial; (3) the trial court erroneously denied his motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) for substitute counsel; (4) there was insufficient evidence to establish the requisite lewd intent for counts 1 and 2; (5) the jury instructions on the union of act and intent were incomplete as to count 1; (6) the prosecutor erred during closing argument by asserting the jury should first reach conclusions as to the greater offenses before deliberating on the lesser included offenses; (7) his trial counsel provided him with ineffective assistance; and (8) the cumulative effect of these errors deprived him of due process of law and a fair trial.
The People concede and we agree the trial court committed prejudicial instructional error as to count 1. We, consequently, exercise our discretion under section 1260 to reduce the conviction in count 1 to attempted forcible lewd act with a child (§§ 288, subd. (b)(1), 664). In all other respects, we affirm the judgment.