CA Unpub Decisions

Angel Samos (Samos) embarked on a two-day crime spree that included a kidnapping for carjacking, assaults on police, and attempted murder. His one-man crime wave ended when a policeman shot him in the head. Trial was by jury. On appeal, Samos challenges his conviction on the kidnapping for carjacking charge. We affirm.

A visitor in Beverly Hills fell on a public sidewalk. She has sued the City for maintaining a dangerous condition on its property, claiming that the cause of her fall was a utility box recessed too deeply into the sidewalk. The trial court gave summary judgment to the City. We affirm. The alleged defect was trivial in size as a matter of law, and plaintiff failed to present a triable issue that inadequate lighting was an aggravating circumstance that created a substantial risk of injury to a pedestrian using due care.

A jury convicted defendant Juan Carlos Gutierrez of two counts of premeditated murder (Penal Code, § 187, subd. (a))[1] (counts 1, 4) and two counts of attempted premeditated murder (§§ 664, 187, subd. (a)) (counts 2 & 3). In counts 1, 2, and 4, the jury found that defendant personally and intentionally discharged a firearm causing great bodily injury or death (§§ 12022.53, subd. (d)), and in count 3 that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). The jury found that the crimes in counts 1 through 4 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In counts 1 and 4, the jury found the following special circumstances true: (1) that the crimes were committed while defendant was an active participant in a criminal street gang within the meaning of section 190.2, subdivision (a)(22); and (2) that the murders were intentional and perpetrated by means of discharging a firearm from a motor vehicle at persons outside the vehicle with intent to inflict death within the meaning of section 190.2, subdivision (a)(21). In count 4, the jury found true the special circumstance allegation that defendant committed multiple murders within the meaning of section 190.2, subdivision (a)(3).[2]
The trial court sentenced defendant to two consecutive terms of life without the possibility of parole in counts 1 and 4, two consecutive terms of 15 years to life in counts 2 and 3, and four consecutive terms of 25 years to life on the firearm enhancements.
Defendant appeals on the grounds that: (1) the trial court committed reversible error when it accepted the prosecutor’s stated reasons for excusing an African-American prospective alternate juror, because the reasons were unsupported by the juror’s statements on voir dire; (2) the trial court committed reversible error when it failed to conduct a sufficient inquiry into a juror’s complaint that another juror’s abusive behavior was derailing deliberations; and (3) the trial court erred when it imposed a sentence enhancement of 25 years to life on defendant’s conviction of attempted premeditated murder in count 3.

Elizabeth V. (mother), the mother of Felicity S., filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, after the court terminated her family reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26.[1] Mother contends that the juvenile court should have granted her request for six additional months of services. We conclude that substantial evidence supports the juvenile court’s decision to terminate family reunification services and deny mother’s petition for an extraordinary writ.[2]

Defendant Gregory Joseph Cuadra II (appellant) pled no contest to one count of unauthorized driving of a motor vehicle (Veh. Code, § 10851, subd. (a)) and one count of driving while under the influence of drugs and/or alcohol (id., 23152, subd. (a)), and in a second case he pled no contest to one count of issuing a check without sufficient funds (id., § 476a, subd. (a)) and a prior serious felony conviction allegation (Pen. Code, §§ 667, 1170.12). Appellant was sentenced to six years in state prison. Appellant’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellant has not filed a supplementary brief. We find no arguable issues and affirm.

Appellant Joshua C. was found by the juvenile court to have illegally possessed marijuana and was declared a ward of the court. Joshua’s continued illicit use of marijuana was revealed in several subsequent drug tests, resulting in multiple violations of his probation. Joshua sought to modify the terms of his probation to allow use of marijuana for medicinal purposes. Following an evidentiary hearing, the court denied the motion. We conclude the court acted well within its discretion in doing so. We also reject Joshua’s claim of ineffective assistance of counsel and affirm.

Defendant Jean Claude Aknin was convicted by jury of forcible rape, assault with intent to commit rape, and related charges and enhancements. In this appeal, he makes two principal arguments. First, he argues that his trial counsel was ineffective for failing to move to suppress certain evidence before trial and for failing to object to some testimony and alleged prosecutorial misconduct. Second, he argues that the evidence is insufficient to support the rape conviction. We reject these arguments, but we agree with the parties that the conviction of assault with intent to commit rape must be reversed because the crime is a lesser included offense of rape. We also agree with the People that the trial court erred in sentencing and that Aknin’s sentence must be corrected.[1]

Appellant Bernard Flores appeals from the November 9, 2012 order committing him as a sexually violent predator (SVP) to an indeterminate term pursuant to Welfare and Institutions Code section 6604.[1] He claims that his involuntary commitment violates the equal protection guarantees provided by the state and federal Constitutions.
In People v. McKee (2010) 47 Cal.4th 1172 (McKee), the California Supreme Court recognized that persons who are civilly committed as Mentally Disordered Offenders (MDO's) or whose commitments are extended after being found not guilty by reason of insanity (NGI's) are subject to short, definite terms of commitment whereas persons found to be SVP's are committed to an indeterminate term of commitment. (McKee, supra, 47 Cal.4th at pp. 1202, 1207.) The court concluded that SVP's were similarly situated to these other groups of committees. (Id. at pp. 1204, 1207.) It remanded the matter to the trial court "to determine whether the People . . . can demonstrate the constitutional justification for imposing on SVP's a greater burden than is imposed on MDO's and NGI's in order to obtain release from commitment." (Id. at pp. 1208-1209, fn. omitted.) The trial court resolved this question in favor of the People on remand and its order was affirmed on appeal by the California Court of Appeal, Fourth District, Division 1 in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). On October 10, 2012, the Supreme Court denied review in that case (S204503).
Appellant maintains that the McKee II decision is fatally flawed. He asks this court to remand this matter for further proceedings pursuant to the Supreme Court's McKee decision. We are satisfied that no remand is necessary and affirm.

Raul Munoz Ulloa filed this action against various entities associated with a loan he obtained in 2006 to buy a Santa Ana apartment building. All but one of his claims were winnowed out in a sustained demurrer, and the remaining cause of action was then the subject of a successful motion for summary judgment. Ulloa has now appealed from the ensuing judgment. Much of his appeal centers on the legal authority of the trial judge to dismiss his claims prior to a jury trial. As we explain below, the trial judge acted within his legal authority and acted correctly. We affirm.

A juvenile wardship petition (Welf. & Inst. Code,[1] § 602, subd. (a)) was filed in the Superior Court of Madera County alleging appellant Christine C., who was 17 years old, committed count I, felony assault with a deadly weapon, a knife, upon S.A., during an altercation at a party (Pen. Code, § 245, subd. (a)(1)). After a contested jurisdictional hearing, the court found the allegation true. Appellant was declared a ward of the court, ordered to serve time in custody, and placed on probation under various terms and conditions.
On appeal, appellant contends the prosecutor failed to comply with his statutory duties of notice and determination of her eligibility for the Deferred Entry of Judgment (DEJ) program. Appellant also contends that one of the terms of probation is unconstitutionally overbroad. We will modify the probation condition and otherwise affirm.

Pursuant to a plea agreement, on April 22, 2011, in Kern County Superior Court case No. BF135575A, appellant, Joseph Daniel McCoy, pleaded no contest to making criminal threats (Pen. Code, § 422)[1] and the court conditionally dismissed four other felony charges.
On July 25, 2011, an information was filed in Kern County Superior Court case No. BF136782A, charging appellant and his mother, Darlene Green, with one count of elder abuse under circumstances likely to cause great bodily injury or death (§ 368, subd. (b)(1)), and alleging that appellant and Green inflicted great bodily injury on a person 70 years of age or older (§ 368, subd. (b)(2)(B)) and proximately caused the victim’s death within the meaning of section 368, subdivision (b)(3)(B). We refer to case No. BF136782A as the elder abuse case.
On January 4, 2012, appellant entered into a new plea agreement covering both cases. Pursuant to this plea agreement, the following occurred:

Following a contested jurisdictional and dispositional hearing, the juvenile court found true allegations that then three-month-old D.A., was a dependent child within the meaning of Welfare and Institutions Code[1] section 300, subdivision (b). The court also found it was necessary to remove the child from his mother's custody pursuant to section 361, subdivision (c)(1). D.A's mother, A.W. (Mother), appeals contending the evidence was not sufficient to support the trial court's decision as to both jurisdiction and disposition. We are satisfied the evidence is sufficient to support a true finding that D.A. is a dependent child under section 300, subdivision (b) and that the evidence also supports a finding that there was no reasonable alternative to removal of D.A. from his mother's custody. We will affirm the juvenile court's decisions.

Defendant Christian Carrillo Magana pled no contest to rape by force. (Pen. Code,[1] § 261, subd. (a)(2).) In exchange, four related counts and enhancements were dismissed. Defendant was sentenced to state prison for a stipulated upper term of eight years, awarded 164 days of custody credit and 24 days of conduct credit (§ 2933.1), and ordered to pay fines and fees including a sex crime fine (§ 290.3) in the amount of $1,140 including unspecified penalty assessments.
Defendant timely filed a notice of appeal but did not seek a certificate of probable cause. Thereafter, defendant filed two more notices of appeal, each seeking a certificate of probable cause. One request was granted and the other denied. The issues raised in this appeal do not require a certificate of probable cause.
Defendant contends (1) he is entitled to one additional day of custody credit and (2) the abstract of judgment must be amended to itemize the components of the $1,140 sex crime fine and penalty assessments. The People concede both contentions. We agree. Accordingly, we modify the judgment to add one day of custody credit and remand the case to the trial court to determine the sex crime fine and penalty assessments that constitute the aggregate $1,140 amount and amend the abstract of judgment to list, with the statutory basis, the fines and fees.

On February 27, 2007, defendant Dion Christian Melton pled no contest to second degree robbery (Pen. Code, § 211[1]) and admitted personal use of a firearm (§ 12022.5, subd. (a)) in exchange for dismissal of the remaining allegations with a Harvey waiver.[2] Defendant was ineligible for probation absent an unusual case finding. (§ 1203, subd. (e)(2).)
Notwithstanding the recommendations of both the probation officer and a diagnostic study (§ 1203.03) for a state prison sentence, the trial court found defendant’s case to be an unusual one. On October 18, 2007, the court imposed a seven-year state prison sentence, suspended execution, and granted defendant probation for a term of four years.
After defendant’s third violation of probation, the trial court lifted the stay and sentenced defendant to state prison for the previously imposed term of seven years.
Defendant appeals. He contends the trial court abused its discretion in revoking probation and lifting the stay of his prison sentence. We reject defendant’s contention.