CA Unpub Decisions

A jury found defendant and appellant Alexandro Alfonso Baeza (defendant) guilty of murder in the second degree (Pen. Code, § 187, subd. (a)) in connection with the death of his two-year-old son, and guilty of assault on a child under eight years of age causing death (Pen. Code, 273ab). The trial court sentenced defendant on the assault causing death conviction to 25 years to life in prison and stayed execution of sentence on the murder conviction in accordance with Penal Code section 654.
In this appeal, defendant raises three claims of error. First, he contends the trial court’s jury instruction on implied malice was incorrect, and the error was prejudicial. Next, defendant contends the trial court committed error by allowing the prosecutor to introduce irrelevant character evidence, namely, evidence that defendant was under the influence of methamphetamine at the time his son died and evidence that the child’s mother had suspected defendant was physically abusing their son as evidenced by bruises on the child’s ears. Finally, defendant contends the trial court violated his Sixth Amendment right to counsel when, at his sentencing hearing, defendant moved to dismiss his retained attorney and the trial court denied that motion.
We conclude defendant’s claims are meritless. Therefore, we will affirm the judgment.

A jury convicted defendant and appellant Larry D. Lugo of four counts of premeditated attempted murder (Counts 3-6—Pen. Code, §§ 664, 187, subd. (a)), four counts of attempted murder (Counts 10-13—Pen. Code, §§ 664, 187, subd. (a)), and one count of evading law enforcement with disregard for the safety and property of others (Count 7—Veh. Code, § 2800.2). The jury additionally found true, with respect to Counts 3 through 6 and 10 through 13, allegations defendant personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)), and knew or reasonably should have known the victims were peace officers engaged in the performance of their duties (Pen. Code, § 664, subds. (e) & (f)).[1] The court sentenced defendant to a determinate term of incarceration of 166 years and an indeterminate term of 60 years to life.
On appeal, defendant raises six issues: (1) the court erred in declining to sever trial on Counts 1 and 2 from the remaining charges; (2) the court erred in declining to dismiss a juror for misconduct; (3) the court erred in denying defendant’s motion for new trial; (4) the court abused its discretion in precluding defendant’s defense on several bases; (5) the court erred by prohibiting evidence of third party culpability; and (6) defendant was cumulatively prejudiced by the aforementioned errors.[2] We affirm the judgment.

Plaintiff Stephanie Gonzalez was employed by the Buffalo Inn restaurant. Defendants Richard Rinard, Janna Hickler, and Buffalo Inn Route 66 Corporation (collectively Buffalo) appeal from a postjudgment order, awarding plaintiff attorney’s fees in the amount of $254,615.50.[1]
Defendants appeal, arguing the attorney’s fee award was an abuse of discretion. We conclude there was no abuse of discretion and affirm.

Douglas M. and Rachel P. seek writ review of orders terminating their reunification services and setting a Welfare and Institutions Code[1] section 366.26 hearing regarding their son, Caleb R. Douglas argues he was not provided with reasonable reunification services. Rachel joins in and adopts Douglas's arguments and asks that her services be continued if Douglas's petition is granted. We deny the petitions.

Robyn Keller entered a negotiated guilty plea to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 1) and reckless driving (Veh. Code, § 23103, 23103.5) as a lesser included offense of driving under the influence (Veh. Code, § 23152) (count 2). The court placed her on three years of summary probation. Keller appeals. We affirm.

In August 2012, a jury found Glen Green guilty of pandering (Pen. Code, § 266i, subd. (a)(2); count 1; all further statutory references are to the Penal Code) and pimping (§ 266h, subd. (a); count 2). In September, the court sentenced him to three years in prison: the three-year lower term for pandering and a stayed (§ 654) three-year lower concurrent term for pimping. Green appeals, contending the court abused its discretion and violated section 654's proscription against multiple punishment by relying on count two in calculating the amount of the restitution fine. The People properly concede the point.
In 2012, section 1202.4, subdivision (b) allows the court to calculate the amount of the restitution fine by multiplying $240 "by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (§ 1202.4, subd. (b)(2) & (1).) When sentence on a count is stayed pursuant to section 654, that count cannot be a part of the calculation. (People v. Le (2006) 136 Cal.App.4th 925, 933-934.) Here, the court imposed a $1,440 restitution fine, calculated as $240 times three (years) times two (counts). Because the sentence on count two was stayed pursuant to section 654, the fine must be reduced to $720. The parole revocation fine, which must be in the same amount as the restitution fine (§ 1202.45), must also be reduced to $720. We need not discuss Green's contention that trial counsel was ineffective in failing to object to the amount of the restitution fine.

Dwayne Holloway pled guilty to a violation of Health and Safety Code section 11350, subdivision (a) for possession of cocaine base, a controlled substance. Pursuant to the plea, the court sentenced Holloway to 365 days in local custody, followed by one year in a residential drug treatment facility and three years of formal probation, and imposed various fines, fees and assessments (collectively, fines) that it stayed pending successful completion of probation.
Holloway on appeal contends the matter should be remanded for resentencing because the court erred at the sentencing hearing when it allegedly failed to itemize all the fines orally imposed on him and to inquire whether he had the ability to pay the AIDS education fine and the drug program fee, and because the court's order granting formal probation incorrectly stated the total amount of fines it imposed.
As we explain, we reject Holloway's request for resentencing because we conclude the court did not err when it relied on the probation report's itemization of recommended fines in imposing the same on him and when it tacitly found Holloway had the ability to pay the AIDS education fine and the drug program fee. However, we agree with Holloway that the order granting formal probation should be modified to state correctly the total amount of fines orally imposed by the court.

Appointed counsel for defendant Claude Jones Jackson has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. ("People v. Wende(1979) 25 Cal.3d 436" People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief contending his right to a speedy trial was violated and complaining about his conditions of confinement. We address these issues, in addition to undertaking a review of the record as required by Wende, and affirm the judgment.

Defendant Rachael-Anne Pearl Robinson pled no contest to assault by means of force likely to produce great bodily injury. The trial court suspended the imposition of sentence, placed her on three years’ probation, and ordered her to pay various fees. On appeal, she contends that the trial court improperly ordered her to pay certain fees because: (1) “the court failed to state a statutory basis for all the fees”; (2) there was insufficient evidence in the record to support the amount of some of the fees; (3) insufficient evidence supported her ability to pay certain fees, including attorney fees; and (4) an installment account fee was unauthorized. Defendant also argues that if she forfeited the right to challenge the sufficiency of the evidence supporting the amount of certain fees or her ability to pay certain fees, she was denied effective assistance of counsel.

Convicted of 62 sex crimes against his daughter and sentenced to the better part of a millennium in prison, defendant Bennie Dale Moses, Jr., appeals contending: (1) the trial court erred in denying his new trial motion without holding an evidentiary hearing; (2) none of the convictions for forcible sex crimes are supported by substantial evidence; (3) the prosecution of eight charges of unlawful sexual intercourse with a minor (i.e., statutory rape) was barred by the statute of limitations; and (4) two restitution fines must be reduced from $12,400 to $10,000 each. Defendant also asks us to review the transcript of an in camera Pitchess[1] hearing for abuse of discretion.
On review, we find no error in the denial of the new trial motion and no abuse of discretion in the Pitchess hearing; however, we conclude that all of defendant’s convictions for forcible sex crimes based on acts that occurred before the victim was 18 must be reversed for lack of substantial evidence of duress. We also conclude that the eight charges of unlawful sexual intercourse with a minor must be dismissed because prosecution of those charges was barred by the statute of limitations. Finally, we agree that the two restitution fines must be reduced to $10,000 each. Accordingly, we will reverse some of defendant’s convictions, dismiss some of the charges, affirm the remainder of his convictions, and remand for resentencing.

Sarah S. (mother) appeals from the juvenile court's orders sustaining a supplemental petition (Welf. & Inst. Code, § 387),[1] removing her son, Caleb S., from his parents' physical custody, and placing him in foster care. Mother argues that the evidence is insufficient to support the court's jurisdictional findings and dispositional order. We affirm.

The juvenile court asserted dependency jurisdiction over D.Y. and K.Y., the two children of Glenda C. (mother) and W.Y. (father). On the day set for a Welfare and Institutions Code section 366.26 hearing, counsel for mother and father requested a contested hearing.[1] Neither parent was present in court. The juvenile court requested an offer of proof. Following mother’s counsel’s offer of proof, the court denied the requests for a contested hearing and terminated parental rights. On appeal, the parents contend the juvenile court violated their due process rights by denying them a contested hearing. They also argue the juvenile court erred in refusing to apply the parent-child beneficial relationship exception to adoption. We find no error and affirm the trial court order.

Defendants Patrick Fuller (Fuller) and Christopher Session (Session) appeal following their pleas of “no contest” pursuant to a plea bargain. Fuller pleaded “no contest” to one count of attempting to dissuade a witness in violation of Penal Code section 136.1, subdivision (a)(2).[1] He admitted that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang pursuant to section 186.22, subdivision (b)(1)(B). He admitted a five-year prior conviction allegation (§ 667, subd. (a)) and a one-year prior conviction allegation (§ 667.5, subd. (b)) for a total of 15 years in state prison. Session pleaded “no contest” to the same charges and allegations and additionally to one count of exhibiting a concealable firearm in public in violation of section 417, subdivision (a)(2), a misdemeanor. He admitted the allegation that the offense occurred in a public place and the firearm was a pistol. Session’s sentence was also 15 years in state prison. The sentences consisted of four years each (the midterm of two years doubled because of the strike priors) for attempting to dissuade a witness and consecutive terms for each defendant of five years for the gang allegations, five years for one of the prior serious felony allegations, and one year for one of the prior prison term allegations. The trial court also imposed a concurrent six-month term on Session for his misdemeanor offense.

Chet Williams appeals an order granting a post-judgment motion filed by his former wife Roberta Cabotage Williams (Cabotage) to divide a pension which was not divided in the judgment that dissolved their marriage. We conclude, among other things, that: 1) Cabotage had a statutory right to divide the pension in a post-judgment proceeding, 2) the parties' stipulation for judgment may not be interpreted to forfeit her community property interest in the pension, and 3) it may not be applied to divest the court of jurisdiction to perform its duty to achieve an equitable division of community property. We affirm.