CA Unpub Decisions

In September 2011, defendant James A. Hale pleaded guilty to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)),[1] fraudulent use of an access card (§§ 484g, subd. (a), 487), possessing a forged driver’s license (§ 470b), using personal identifying information without authorization (§ 530.5, subd. (a)), false personation (§ 529), and misdemeanor falsely identifying himself to a peace officer (§ 148.9). The offenses took place on or about June 8, 2010. Defendant also admitted that he had a prior strike (§§ 667, subds. (b)-(i), 1170.12) and had served four prior prison terms (§ 667.5, subd. (b)). In December 2011, the trial court denied defendant’s Romero motion[2] and sentenced him to prison for six years. The court granted defendant 835 days of custody credits, consisting of 557 actual days plus 278 days conduct credit.
On appeal, defendant contends that he is entitled to additional presentence conduct credit pursuant to the version of section 4019 operative October 1, 2011. For reasons that we will explain, we will affirm the judgment.

Appellant (Mother) challenges the sufficiency of the evidence to support the juvenile court’s jurisdictional and dispositional orders regarding her two-year-old son N.B. Finding substantial evidence to support the orders, we affirm.

Defendant Steven John Burke pleaded guilty to one count of unlawful possession of a firearm (Pen. Code, § 12021, subd. (c)(1)) (case No. 11NF2951) and two counts of unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) (case No. 11NF3234).[1] On appeal he challenges the constitutionality of section 12021, subdivision (c)(1) (section 12021(c)(1)), which prohibits certain misdemeanants from possessing firearms, contending the statute violates his Second Amendment right to bear arms and Fourteenth Amendment right to equal protection.[2] We consolidated the cases on appeal and affirm the judgments.

Alfredo Fraga appeals from a judgment after a jury convicted him of two counts of sexual penetration by force. As to each count, the jury found Fraga kidnapped his victim in the commission of the offenses. Fraga argues insufficient evidence supports the jury’s finding he kidnapped the victim. We disagree and affirm the judgment.

On July 19, 2010, a jury convicted appellant, Olice David Thornton, Jr., of two counts of assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1)) and found true allegations that in committing one of those offenses, he personally inflicted great bodily injury (§ 12022.7, subd. (a)), and that he personally used a dangerous and deadly weapon in committing each of them. In a court trial the next day, the court found true allegations that appellant had suffered two “strikes”[2] and two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), and that he had served three separate prison terms for prior felony convictions (§ 667.5, subd. (b)). On September 8, 2010, the court struck one of appellant’s strikes and imposed a prison term of 22 years.
Appellant appealed, and on appeal his sole contention was that the court erred in failing to conduct a Marsden hearing.[3] This court, on October 24, 2011, reversed, holding that the court erred in failing to conduct a Marsden hearing, and remanded the matter to the trial court, ordering, inter alia, that the court conduct such a hearing.
On remand, on April 27, 2012, the trial court conducted a Marsden hearing, at which it denied appellant’s Marsden motion and reinstated the judgment. The instant appeal followed.
On appeal, appellant’s sole contention is that the court erred in denying his Marsden motion. We affirm.

Defendant Dennis Ray Sneed appeals his conviction after a jury found him guilty of multiple counts of child molestation. Specifically, defendant contends his sentence of 230 years is unconstitutional. The court will affirm the judgment.

Appellant and defendant Japinder Jeet Singh filed, in the trial court, a nonstatutory motion to vacate his convictions due to ineffective assistance of counsel. The trial court denied his motion. Defendant appeals from that order. On appeal, defendant asserts that, pursuant to Padilla v. Kentucky (2010) 559 U.S. 356 [130 S.Ct. 1473] (Padilla), his motion should have been granted. We disagree. Padilla neither mandates a vehicle for postjudgment challenges, such as defendant’s, nor applies to convictions that became final prior to the date it was decided. Accordingly, we affirm the trial court’s order denying defendant’s motion.

In this matter, we have reviewed the petition, the real party in interest’s response, as well as the record. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
It is generally stated that the appellate court reviews the trial court’s ruling on a statement of disqualification for abuse of discretion. (Grant v. Superior Court (2001) 90 Cal.App.4th 518.) However, where, as here, the facts are undisputed, we must merely apply the applicable law to those facts.

In this matter we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
First, we do not agree with real party in interest that the People’s remedy by appeal is adequate, and because there is the right to appeal, review by writ poses no risk of unfair harassment. (See generally People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451.)
Next, insofar as the magistrate purported to make a “factual finding” that real party is not a gang member, this was improper as the most that could be said was that the evidence presented was insufficient. There was no affirmative evidence that real party is not a gang member. (See People v. Superior Court (Henderson) (1986) 178 Cal.App.3d 516.) Furthermore, actual gang membership is not relevant to an allegation under Penal Code section 186.22, subdivision (b). (People v. Miranda (2011) 192 Cal.App.4th 398.)

On December 17, 2012, a felony complaint charged defendant and appellant Howard Mayo with petty theft having suffered three prior convictions in violation of Penal Code sections 666, subdivision (a), and 484, subdivision (a) (count 1), and second degree commercial burglary in violation of Penal Code section 459 (count 2). The complaint also alleged four prison priors under Penal Code section 667.5, subdivision (b).
On December 26, 2012, defendant pled guilty to count 2, second degree commercial burglary. The plea agreement provided that defendant would waive a probation report, be immediately sentenced, and receive a stipulated term of three years in county prison, to run concurrent with any other pending matters. The balance of the complaint was to be dismissed, including the four prison priors.
Immediately after defendant’s plea, the trial court sentenced defendant to county prison for the term of three years, to run concurrent with any other sentence. The trial court also dismissed count 1 and the four priors were stricken. The trial court gave defendant credit for 14 days of actual custody plus 14 days of section 4019 conduct credits, for a total of 28 days. The trial court ordered defendant to pay a restitution fine of $264 and a revocation fine of $264, which was stayed. The trial court also ordered defendant to pay a court operations assessment fee of $70.
Defendant filed a timely notice of appeal on January 10, 2013. The trial court granted defendant’s request for a certificate of probable cause.

Defendant and appellant Glen Edward Jackson, Jr., was charged by amended information with infliction of corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a), counts 1 & 2).[1] It was also alleged that he had served one prior prison term (§ 667.5, subd. (b)), and he had one prior strike conviction (§§ 667, subds. (c) & (e)(1)(A), 1170.12, subd. (c)(1).) Pursuant to a plea agreement, defendant pled guilty to count 2 and admitted the prison prior and prior strike conviction. The court sentenced him to the agreed upon term of five years in state prison, consisting of the low term of two years on count 2, doubled pursuant to the strike conviction, plus one year for the prior prison term enhancement. The court awarded 24 days of presentence custody credits. The court also dismissed count 1 pursuant to the plea agreement.
Defendant moved the court to correct the number of presentence custody credits awarded, pursuant to the October 1, 2011 modification to section 4019. The court changed the amount of custody credits awarded to 40 days (20 actual days and 20 conduct credits).
Defendant filed a timely notice of appeal. We affirm.

Defendant Bradley Jay Withers is serving four years and eight months after a jury convicted him of possessing methamphetamine and a hypodermic needle, and the trial court found true he had two prior offenses, including a strike. As discussed below, we affirm the conviction.

On April 23, 2010, a complaint charged defendant and appellant Craig Jacob Hagar with making criminal threats under Penal Code[1] section 422 (count 1); stalking under section 646.9, subdivision (a) (count 2); and making annoying telephone calls under section 653m, subdivision (a), a misdemeanor (count 3).
On August 9, 2010, defendant entered into a plea agreement wherein he pled no contest to count 2, stalking, in exchange for the dismissal of the remaining counts and a stipulated grant of probation, with conditions that included serving 270 days in county jail. On September 10, 2010, the trial court granted defendant 36 months of supervised probation, with conditions that included serving 270 days in county jail, with actual presentence credits of 71 days, plus conduct credits under section 4019.
On July 18, 2012, the probation department filed a petition to revoke defendant’s probation on the grounds that (1) defendant had been arrested on July 16, 2012, for receiving stolen property (§ 496, subd. (a)), and (2) that defendant had moved from his place of residence without notifying his probation officer. On July 26, 2012, defendant admitted the second alleged probation violation, that he had moved from his place of residence without notifying his probation officer of his current address. The court reinstated probation with conditions that included serving 365 days in county jail, with credit for 147 actual days, plus conduct credits under section 4019.
Defendant filed a timely notice of appeal “after a contested violation of probation.” Defendant requested a certificate of probable cause, which the court denied. Thereafter, appellate counsel filed an amended notice of appeal challenging “the sentence or other matters occurring after the plea.”

Defendant Ginger Lindsay Gonzalez was convicted by jury of possession for sale of cocaine base (Health & Saf. Code, § 11351.5 (count 1)), transporting cocaine base (Health & Saf. Code, § 11352, subd. (a) (count 2)), possession for sale of methamphetamine (Health & Saf. Code, § 11378 (count 3)), and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a) (count 4)). In a separate proceeding she admitted suffering a prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)). Defendant was sentenced to the low term of three years in county jail on count 1, plus a consecutive three-year term for the prior conviction, for a total term of six years. The trial court also imposed a concurrent two-year sentence on count 3, and imposed but stayed sentences on the remaining counts pursuant to Penal Code section 654.[1] Various fines and court fees were imposed and defendant was awarded 34 days of presentence custody credit.
Defendant contends that the trial court abused its discretion in admitting the underlying facts of the prior drug conviction. We disagree and affirm the judgment. We remand with directions to amend the abstract of judgment.