CA Unpub Decisions

A jury convicted Leonard Jesse Santos of attempted murder (Pen. Code,[1] § 664, 187, subd. (a); count 1), and two counts of assault with a deadly weapon other than a firearm (§245, subd. (a)(1); counts 2 & 3). The jury found true that Santos had committed each count for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1). As to count 2, the jury found Santos had personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).
At a subsequent proceeding, the court found Santos had suffered two prior convictions within the meaning of sections 667, subdivision (b) through (i) and 1170.12, subdivisions (a) through (d), and one prior conviction within the meaning of section 667, subdivision (a)(1).
After striking one of Santos's prior strike convictions, the court sentenced Santos to prison for 30 years. In sentencing Santos, however, the court stayed his sentence under section 654 for counts 2 and 3.
Santos appeals and raises multiple issues. He contends: (1) substantial evidence does not demonstrate he was connected with the stabbing of the victim or that the perpetrator who stabbed the victim was a gang member; (2) sufficient evidence does not show the attempted murder was a natural and probable consequence of the fistfight between Santos and the victim that arose out of their verbal exchange; (3) there is no substantial evidence of his intent to kill the victim; (4) substantial evidence does not support the true finding that Santos inflicted great bodily injury under count 2; (5) the court erred by failing to sua sponte instruct the jury on the lesser included offense of attempted voluntary manslaughter; (6) the court erred by failing to sua sponte instruct the jury on reasonable self-defense; and (7) Santos could not be convicted of two counts of assault because the record shows there was only one assault. We affirm.

On July 8, 2012, an officer searched defendant Anthony Joseph Lira and found a pipe containing a usable amount of methamphetamine.[1] When advised that bringing drugs into a jail would result in another felony charge, defendant gave up two baggies each containing 0.2 grams of methamphetamine.
Defendant pleaded no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted a prior serious or violent felony conviction (Pen. Code,[2] §§ 667, subds. (b)-(i), 1170.12) for the sole purpose of ineligibility for local custody (§ 1170, subd. (h)). In exchange, a strike allegation and a prior prison term allegation were dismissed.
Defendant was sentenced to prison for a stipulated upper term of three years, awarded two days’ custody credit and two days’ conduct credit, and ordered to pay a $280 restitution fine (§ 1202.4), a $280 restitution fine suspended unless parole is revoked (§ 1202.45), a $195 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) including penalty assessments, a $585 drug program fee (Health & Saf. Code, § 11372.7) including penalty assessments, a $40 court operations fee (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373).

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), which requires that we review the entire record to determine whether there are any arguable issues which might result in a more favorable outcome for defendant.
Defendant Delbert Glenn Smith pleaded no contest to driving with a blood-alcohol level of 0.08 percent or greater with three prior convictions for the same offense (Veh. Code, §§ 23152, subd. (b), 23550 (count 2)). He also admitted a prior strike conviction (Pen. Code, § 1170.12) and the service of two prior prison terms (Pen. Code, § 667.5, subd. (b)). In exchange for his plea and admissions, defendant was promised no more than eight years in state prison, the dismissal of other counts and the dismissal of another allegation of having served a prior prison term.
Following the denial of defendant’s request for the court to strike his prior strike conviction, the court sentenced defendant to six years in state prison, consisting of the midterm of two years for the driving offense, doubled to four years because of the strike, plus one year for each of the prior conviction prison terms. The court awarded defendant 124 days of presentence custody (62 actual, 62 conduct) and imposed fines and fees as set forth in the abstract of judgment.

A modification decision.

A jury convicted defendant James Robert Watts in 1999 of four counts of forcible rape (Pen. Code, § 261, subd. (a)(2)),[1] penetration by a foreign object (§ 289, subd. (a)), assault with a deadly weapon likely to produce great bodily injury (§ 245, subd. (a)(1)), attempting to dissuade a witness (§ 136.1, subd. (c)(1)), and misdemeanor battery (§ 242). (People v. Watts (Dec. 15, 2000, C034074) [nonpub. opn.] at p. 1.) The jury also sustained great bodily injury, deadly weapon and one strike allegations against defendant (§§ 12022.8, 12022.7, subd. (a), 12022.3, subd. (a), 12022, subd. (b)(1), former 667.61, subds. (a), (b), and (e)). The trial court sentenced defendant to 117 years to life in prison.
In an unpublished opinion, this court struck a one year weapons enhancement and affirmed the judgment as modified. (People v. Watts, supra, C034074 [nonpub. opn.] at p. 11.)

On July 14, 2008, defendant Elizabeth Frances Depicciotto pleaded no contest to second degree burglary (Pen. Code, § 459).[1] On September 10, 2008, the trial court suspended imposition of sentence and placed defendant on three years’ formal probation.
Defendant admitted violating her probation on January 21, 2009. The trial court revoked and reinstated probation on February 19, 2009.
On October 8, 2009, defendant admitted violating her probation and admitted additional violations on July 12, 2010. On December 6, 2010, the trial court revoked probation, sentenced defendant to three years in state prison, suspended execution of sentence, and reinstated probation.
Following a contested hearing held on April 4, 2012, the trial court found defendant had violated her probation. On May 18, 2012, the trial court executed the previously suspended sentence and imposed a three-year state prison term over defendant’s objection.
On appeal, defendant contends the trial court should have sentenced her to county jail pursuant to section 1170, subdivision (h), and the county jail provisions of section 1170, subdivision (h) should be applied retroactively as a matter of equal protection. We affirm.

This case involves sexual abuse by defendant Nang Sam of his younger sister (the victim). Defendant was entrusted with caring for her and his other younger siblings because their mother was largely absent. Defendant violated that trust for years by sexually abusing the victim, culminating in his prosecution and guilty verdict of 36 counts of lewd acts and sexual penetration. The court sentenced him to a determinate term of 10 years in prison plus an indeterminate term of 40 years to life.
On appeal, defendant raises four contentions dealing with (1) juror excusal, (2) sufficiency of evidence, (3) instructional error resulting in ex post facto violations, and (4) shackling. Finding merit only in defendant’s contention of instructional error resulting in ex post facto violations (which the People concede), we reverse defendant’s convictions for two counts of sexual penetration. (This reversal has no practical effect on defendant’s sentence, because the trial court sentenced defendant to concurrent sentences on those counts, which were counts 23 and 24.)

On appeal, the People contend: (1) the three strikes law required the trial court to impose consecutive sentences, (2) the court was required to impose sentence on counts 1, 2, 9, and 11 before staying execution of sentence under ADDIN BA xc <@osdv> xl 20 s FEMURZ000051 l "section 654, and (3)" section 654, and (3) the court was required to impose mandatory fines and fees during its oral pronouncement of judgment. Defendant concedes the last two points.
In a cross-appeal, defendant contends (1) evidence of an uncharged act was admitted in error, and (2) the jury was not instructed on an element of forcibly dissuading a witness. We remand for further proceedings.

A jury convicted defendant Khalid Mahmood Awan of possession of methamphetamine for sale and found that he was personally armed with a firearm. The jury acquitted defendant on the remaining counts.
The court sentenced defendant to state prison for an aggregate term of four years four months.
Defendant appeals. He contends the trial court abused its discretion and violated his constitutional rights in denying probation. We disagree and will affirm the judgment.
Facts at Trial[1]

On May 27, 2009, petitioner Christina Cameron was sentenced to state prison for 13 years based upon her guilty pleas to one count of identity theft and 12 counts of second degree burglary, and admission of the service of two prior prison terms. Petitioner was awarded presentence conduct credits pursuant to the formula provided at that time by Penal Code section 4019 (section 4019), to wit, two days of conduct credits for every four days actually served. Defendant received total presentence credits of 608 days, consisting of 406 days actually served plus 202 days for conduct.

A birthday celebration degenerated into a violent argument over the relative merits of rival gangs. Shouting turned into fighting, and fighting turned into gunfire, resulting in the death of a gang member. An amended information charged defendants Edwin Arthur Stevenson and Panfilo Torres with murder for the benefit of a criminal street gang. A jury found Stevenson guilty of murder and Torres guilty of the lesser included offense of assault with a firearm. The court sentenced Stevenson to 60 years to life in state prison and Torres to 14 years.
Stevenson appeals, contending insufficient evidence supports his murder conviction, the court erred in admitting gang video recordings, comments made during voir dire tainted the jury pool, instructional error, and sentencing error. Torres appeals, arguing instructional error and sentencing error. We shall direct the abstract of judgment in Stevenson’s case be corrected to reflect accurate presentence credits and to delete the 10 year consecutive sentence for the gang enhancement on count one; in all other respects, we shall affirm the judgments.

Defendant Jose Andrea Chavez, armed with a baseball bat, entered three fast food restaurants, threatened on-duty employees, and attempted to break open numerous cash registers. Los Angeles Police Department officers arrested Chavez, who was charged by information with one count of second degree robbery (Pen. Code, § 211)[1] and two counts of attempted second degree robbery (§§ 211, 664) with special allegations he had used a deadly and dangerous weapon to commit the attempted robberies (§ 12022, subd. (b)(1); counts 2 & 3). Represented by counsel, Chavez pleaded not guilty to the charges and denied the special allegations.
At a pretrial conference on August 29, 2012 the trial court declared a doubt about Chavez’s mental competence under section 1368. The court suspended criminal proceedings and ordered an examination of Chavez by a court-appointed mental health expert. At a hearing on October 19, 2012 the court reviewed a psychiatric evaluation prepared by the court-appointed expert, found Chavez competent to stand trial under section 1368, and resumed criminal proceedings. The court also heard and denied Chavez’s requests to have new counsel appointed for him under People v. Marsden (1970) 2 Cal.3d 118.

M.L., the mother of S.L. and Janae L., appeals from the juvenile court’s orders denying her petition for modification pursuant to Welfare and Institutions Code section 388[1] without a hearing and terminating her parental rights pursuant to section 366.26. M.L. contends she demonstrated changed circumstances following the termination of family reunification services and her frequent, loving contact with the children warranted application of the parent-child relationship exception to termination of parental rights provided in section 366.26, subdivision (c)(1)(B)(i). We affirm.

Appellant Christopher B. (“Father”), the presumed father of minor Joe B., appeals from the juvenile court’s jurisdiction and disposition orders declaring Joe a dependent of the court pursuant to Welfare and Institutions Code[1] section 300, subdivisions (b) and (j), and denying reunification services to Father pursuant to section 361.5, subdivision (b)(11). As to the jurisdiction order, Father argues that the evidence was insufficient to support the juvenile court’s finding that Father’s prior sexual and physical abuse of his stepdaughter and daughter placed Joe at substantial risk of harm. As to the disposition order, Father asserts that the juvenile court prejudicially erred in refusing to grant his request for a 30-day continuance of the disposition hearing, and in finding that Father had failed to make reasonable efforts to treat the problems that led to the prior removal of Joe’s half-siblings. We affirm.