CA Unpub Decisions

Co-defendants John Felipe Pineda (Pineda) and Eduardo Javier Zavala (Zavala) appeal after the jury convicted them of two counts of second degree robbery, two counts of assault with a deadly weapon and force likely to produce great bodily injury, and one count of active participation in a criminal street gang. On appeal, both defendants argue the trial court should have stayed the sentence for active participation in a criminal street gang pursuant to Penal Code section 654 rather than ordering it to run concurrently with the sentence for one count of robbery.[1]
The Attorney General concedes the argument, and we agree. The California Supreme Court’s recent decision in People v. Mesa (2012) 54 Cal.4th 191, which held that a defendant may not be punished for both the substantive offense of active participation in a criminal street gang and the requisite underlying felony used to satisfy the gang participation element of the crime, compels this result. Accordingly, we stay the sentence imposed for active participation in a criminal street gang and affirm the judgment as modified.

K.C. (mother) appealed from a January 29, 2013 order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her three children.[1] After reviewing the entire record, mother’s court-appointed appellate counsel informed this court that she found no arguable issues to raise in this appeal. Counsel requested and this court granted leave for mother to personally file a letter setting forth a good cause showing that an arguable issue of reversible error does exist. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.)
Mother has filed a letter in which she challenges a case plan and status review report from July 2012. Otherwise, she acknowledges her prior mistakes and professes her love for her children. She concludes by asking us to be lenient and give her another chance.
On review, we conclude mother’s letter does not amount to a good cause showing that an arguable issue of reversible error does exist.

Before his trial for stealing a pickup truck and other charges, Lamont Deon Lockett gave his attorney a handwritten declaration discussing several topics. One topic was that Lockett claimed he borrowed the truck from a man named James Fuller and had no knowledge that it was stolen. Another was that the attorney had failed to undertake any investigation of Fuller. Although the declaration did not state that Lockett wanted a new lawyer, the attorney interpreted it as a request for substitution of counsel. He therefore informed the court that he was making a Marsden motion on Lockett’s behalf. (People v. Marsden (1970) 2 Cal.3d 118.) The court read the declaration and then questioned Lockett and his attorney outside the prosecutor’s presence. Lockett did not tell the court he wanted a new lawyer. The court said, “I don’t see this as a Marsden,” and explained that the gist of both the declaration and Lockett’s oral remarks was that he wanted to plead guilty to reduced charges, an option not then available. The court did not question Lockett or his attorney about the attorney’s investigation, or lack of investigation, of a James Fuller, and no such witness was ever produced. The trial proceeded and Lockett was found guilty.
Lockett now argues that the court failed in its duty under Marsden when it made no inquiry about the attorney’s investigation of Fuller. We disagree. To trigger the trial court’s duty of inquiry under Marsden, a defendant must make some clear indication that he wants a new lawyer. Lockett never did this. It is true that Lockett’s counsel stated that he was making a Marsden motion, which by definition is a request for substitution of counsel. This case is unusual, however, in that the trial court had before it a document written by the defendant that was the basis of defense counsel’s belief that a Marsden hearing was warranted. The court read that document and saw that it did not ask for substitution of counsel; then it asked Lockett for an oral account of what he wanted, and Lockett did not ask for new counsel. Under these circumstances, the court properly concluded that, in spite of defense counsel’s interpretation of the declaration, no request for substitution of counsel was genuinely before it and its duty of inquiry under Marsden was not triggered. There was no error.
This appeal includes a separate case in which Lockett pleaded guilty to resisting arrest and possessing drugs. In that case, the trial court imposed, but stayed execution of, three 1-year sentence enhancements based on prior prison terms. The parties agree that the proper procedure was to strike the enhancements, not stay them. We will order them stricken.

A jury convicted defendant Trenell Anthony Lowe of possession of methamphetamine. Lowe admitted that he had a prior felony strike conviction and had served two prior prison terms. The trial court sentenced him to two years eight months in state prison.
On appeal, Lowe contends that the trial court erred by denying his motion to suppress because his detention and search by the police were illegal. In addition, he argues: (1) In admitting the enhancement allegations, he did not affirmatively waive his right to confront witnesses and his privilege against self-incrimination; (2) the trial court improperly offered a 28-month sentence in exchange for a guilty plea and therefore his sentence after jury trial should be no more than 28 months; (3) he is entitled to additional presentence conduct credits; and (4) the abstract of judgment must be corrected. The People concede that the abstract of judgment should be corrected but otherwise disagree with Lowe.
We conclude that the detention and search were legal. We agree with the parties that the abstract of judgment must be corrected. In all other respects, we affirm the judgment.

In this matter we have reviewed the petition and the opposition filed by real parties 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.)

Pursuant to a plea agreement, defendant and appellant Thomas Edward Balandran pled guilty to burglary (Pen. Code, § 459)[1] and petty theft with a prior theft-related conviction (§§ 484, subd. (a), 666, subd. (b)(1)).[2] He also admitted that he had sustained four prior prison terms (§ 667.5, subd. (b)), and one prior serious or violent strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). In exchange, the prior prison term allegations were stricken and defendant was sentenced to a total term of four years in state prison with credit for time served. Defendant appeals from the judgment, challenging the sentence or other matters occurring after the plea. As explained post, we will affirm the judgment but order the judgment modified and abstract of judgment corrected.

On January 3, 2012, an information charged defendant and appellant William Charles Bonner with owning or operating a chop shop under Vehicle Code section 10801 (count 1), and receiving stolen property under Penal Code section 496d, subdivision (a) (count 2).
On July 27, 2012, a jury found defendant guilty on count 2, but could not reach a verdict as to count 1. The trial court declared a mistrial as to count 1 and, ultimately, dismissed it.
On September 21, 2012, after denying without prejudice defendant’s motion to reduce count 2 to a misdemeanor, the court suspended imposition of sentence and placed defendant on formal probation for 36 months, with terms and conditions. The trial court ordered that defendant serve 60 days in home detention and imposed a number of fines and fees, including victim restitution.
On October 19, 2012, defendant filed a timely notice of appeal.

Defendant violated a Vargas[1] waiver by failing to register as a sex offender, resulting in the trial court resentencing defendant to six years in prison. Defendant’s appellate counsel has filed a Wende brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and requesting this court to undertake a review of the entire record. This court offered defendant an opportunity to file a personal supplemental brief, which he has not done. We have concluded our independent review of the record and find no arguable issues or errors. The judgment is affirmed.

Following a jury trial, defendant Robert Louis Grayson was convicted of first degree burglary, with the jury finding true the special allegation that a person not an accomplice was present in the residence (Pen. Code, §§ 459, 667.5, subd. (c)).[1] The trial court found true defendant’s prior serious felony conviction and prison prior allegations. Defendant was sentenced to an aggregate term of 18 years in prison.
Defendant’s appellate counsel has filed a Wende brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and requesting this court to undertake a review of the entire record. This court offered defendant an opportunity to file a personal supplemental brief, which he has not done. We have concluded our independent review of the record and find no arguable issues or errors. The judgment is affirmed.

A jury found defendant and appellant Daniel Robert Evans guilty of attempted premeditated murder (Pen. Code, §§ 664/187, subd. (a), count 1),[1] and active participation in a criminal street gang (§ 186.22, subd. (a), count 2). The jury also found true that defendant personally and intentionally discharged a firearm that proximately caused great bodily injury. (§ 12022.53, subd. (d).)[2] Defendant was sentenced to a total indeterminate term of 32 years to life in state prison with credit for time served as follows: seven years to life on count 1, plus a consecutive term of 25 years to life for the gun enhancement, and a stayed midterm of two years on count 2.
Defendant’s sole contention on appeal is that there is insufficient evidence to support his conviction on count 2. In light of the recent decision by the California Supreme Court in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), we will reverse the conviction on count 2.

Respondent Gene M. (Father) petitioned the family court to establish the paternity of his daughter, A.G. (Fam. Code, § 7630.)[1] The family court found Father is A.G.’s presumed father (§ 7611), and ordered Father and appellant Annette G. (Mother), A.G.’s mother, to participate in mediation for setting a visitation schedule. Mother appeals the family court’s ruling. Mother contends the family court erred because (1) Father did not have standing to file the petition; (2) the court should have granted Mother’s motion to dismiss Father’s petition; (3) the court should not have considered the quality of Mother’s marriage; and (4) there is “an irremediable matter of the human condition.” We affirm the judgment.

D.B. appeals the judgment terminating her parental rights to her daughter, L.B. D.B. contends the juvenile court abused its discretion by denying her modification petition (Welf. & Inst. Code, § 388),[1] which sought L.B.'s placement with D.B. with family maintenance services, or reinstatement of D.B.'s reunification services. D.B. also contends the court erred by declining to apply the beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) to termination of parental rights. We affirm.

Appointed counsel for defendant Michael Ronald Brooks asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We will correct a clerical error in the abstract of judgment, but we find no other arguable error that would result in a disposition more favorable to defendant. We will affirm the judgment.

Following a contested jurisdiction hearing, the San Joaquin County Juvenile Court found that minor Alejandro C., age 15, came within the provisions of Welfare and Institutions Code section 602 in that he resisted or obstructed a peace officer. An allegation that the minor committed battery on a school employee was dismissed due to insufficient evidence. The minor was adjudged a ward, ordered to participate for eight days in a juvenile work program, and released to his mother’s custody under various terms and conditions of probation.
On appeal, the minor contends there was no substantial evidence that the officer was acting lawfully when the minor resisted. We affirm.