CA Unpub Decisions

In 1986, defendant Donald Franklin Perkins was committed to the California Department of Mental Health after he was found not guilty by reason of insanity of first degree burglary, assault with a firearm, receiving stolen property, and battery upon a peace officer. Defendant has been in continuous mental health treatment since that time.
In February 2012, the Butte County District Attorney filed a petition for an order extending the commitment. After a trial to the court in April 2012, the court found beyond a reasonable doubt that defendant continues, by reason of a mental disease, defect, or disorder, to represent a substantial danger of physical harm to others and has serious difficulty controlling his dangerous behavior. After taking judicial notice of its files and pleadings, the trial court granted the petition and ordered defendant’s commitment extended for two years.
Defendant timely appealed to this court. We treated defendant’s motion for judicial notice as a motion to incorporate the record from his most recent prior recommitment (People v. Perkins (Mar. 26, 2012, C066057 [nonpub. opn.]), and as such granted the motion.

A jury found defendant Edward Ansley guilty of possessing a sharp instrument in a penal institution. In a bifurcated proceeding, defendant admitted 21 prior strikes.
Sentenced to a state prison term of 25 years to life consecutive to his current term, defendant contends that insufficient evidence supported the verdict and that the trial court erred by instructing the jury on constructive possession. We shall affirm.

A jury convicted defendant Mario Luis Oropeza of, among other things, attempting to deter an officer from performing any duty by means of threat or violence. Defendant now contends (1) the trial court erred in failing to instruct the jury on the lesser included offense of willfully resisting, delaying or obstructing a public officer in the discharge of his duties; (2) the trial court erred in failing to instruct the jury on the requisite specific intent to deter or prevent a police officer from performing his duty; and (3) the cumulative effect of the instructional errors resulted in prejudice.
We conclude (1) the trial court did not have a sua sponte duty to instruct on resisting an officer, because the crime of resisting an officer is not a lesser included offense of attempting to deter an officer; (2) the trial court properly instructed the jury on the requisite specific intent; and (3) because there was no instructional error, the claim of cumulative prejudice lacks merit.
We will affirm the judgment.

A jury found defendant and appellant Crystal Kennedy guilty of aggravated mayhem. She filed an appeal and a petition for writ of habeas corpus.[1] In her appeal, Kennedy contends that character evidence was improperly admitted; that the jury was misinstructed on the law of aggravated mayhem; and that the prosecutor committed misconduct by commenting on her Sixth Amendment right to counsel. In the habeas petition, she claims that her trial counsel was ineffective because he failed to call certain witnesses and failed to object to evidence and statements made by the trial court and the prosecutor. Although the judgment must be modified to correct a sentencing error, we reject all other contentions, deny the petition, and affirm the judgment as modified.

Amy R. appeals from the order of the juvenile court terminating her parental rights to Brent (age 8 years) and Heidi (age 2 years). She contends the court abused its discretion in denying her petition for modification seeking to gain custody of the children. (Welf. & Inst. Code, § 388)[1] She also challenges the designation of the children’s caretakers as their prospective adoptive parents. (§ 366.26, subd. (n)(1).) We affirm.

Amanda O. (mother) suffers from a severe mental disorder. Due to manifestations of that illness, her daughter S.O. was removed from her custody shortly after the child's birth. Two months after reunification services were ordered, mother began a new drug treatment and responded positively. At the six-month review hearing, however, mother did not oppose the termination of services and instead sought to have the child placed with the maternal grandmother. After the juvenile court denied the request and scheduled a permanency planning hearing (Welf. & Inst. Code, § 366.26),[1] mother filed a modification petition seeking reinstatement of reunification services (§ 388) on the ground that her mental condition had improved to the point she could now comply with her case plan. The court denied the petition and proceeded to terminate mother's parental rights and select adoption as S.O.'s permanent plan. Mother now appeals.

William A. Masters, II filed a complaint for money damages against the California Department of Motor Vehicles (DMV), an agency of the State of California. The DMV moved for summary judgment, asserting immunity to the lawsuit under various federal and state laws. The superior court granted summary judgment in favor of the DMV. Finding no error, we affirm.

In the underlying proceeding, the juvenile court sustained a petition charging appellant C.T. with assault with a deadly weapon. Appellant’s court-appointed counsel has filed an opening brief raising no issues. Following our independent examination of the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we conclude that no arguable issues exist, and affirm.

Appellant Ryan Sterling Guenthard was charged by information with two counts of second degree robbery (Pen. Code § 211).[1] It was alleged with respect to both counts that he personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1), 12022.5, subdivision (a), and 12022.53, subdivision (b). Appellant rejected a pretrial offer of 12 years. At trial, two witnesses identified appellant as the man who had robbed a Gamestop store on January 23, 2012. The witnesses, two clerks working in the store at the time, both were aware a robbery was taking place, but only one saw the gun. The court denied a motion to dismiss count two for lack of evidence. The court granted a defense motion to dismiss the gun use allegation pertaining to count two. The jury found appellant guilty of both counts and found the gun use allegation true. The court denied a defense motion for a new trial. The court imposed a sentence of 13 years consisting of: two years (the low term) for count one, one year (one-third the mid-term) for count two to run consecutively, and 10 years under section 12022.53, subdivision (b) for the firearm use. A sentence of four years was imposed under section 12022.5, subdivision (a) and stayed. Appellant was given 35 days of custody credit.

Vincent Orlando Caylor appeals from the judgment entered after he pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted he had one prior strike conviction (Pen. Code §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison term allegations (Pen. Code, § 667.5, subd. (b)). Appellant entered a negotiated plea after the court denied his motion to suppress evidence. (Pen. Code, § 1538.5.) The trial court struck appellant’s prior strike conviction, suspended imposition of sentence, and placed him on formal probation for 36 months, with various terms and conditions.

Filemon Suarez appeals the judgment entered after a jury convicted him on two counts of aggravated sexual assault of a child under the age of 13 (Pen. Code, § 269, subd. (a)(1)),[1] and one count of continuous sexual abuse of a child (§ 288.5, subd. (a)). The jury also found that the continuous sexual abuse offense involved substantial sexual conduct (§ 1203.066, subd. (a)(8)). The trial court found true the allegation that appellant had served a prior prison term (§ 667.5, subd. (b)). Appellant was sentenced to a prison term of 17 years plus two consecutive terms of 15 years to life.
Twelve-year-old K.R. testified that appellant, her mother's boyfriend, began touching her vagina when she was seven years old. When K.R. was a little older, appellant began having sexual intercourse with her. Appellant had sexual intercourse with K.R. about four times every week, while her mother was at work. The abuse continued after they moved to Port Hueneme in 2010. K.R. stopped resisting appellant's advances after he hit her in the head, kicked her in the back, and dragged her around the room by her hair.

Appellant Eugene Lee Upshaw appeals from the judgment entered following his convictions by jury on count 1 – kidnapping (Pen. Code, § 207, subd. (a)), count 2 – kidnapping to commit oral copulation (Pen. Code, § 209, subd. (b)(1)), count 3 – kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)), count 4 – kidnapping to commit sodomy (Pen. Code, § 209, subd. (b)(1)), count 5 – forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), count 6 – forcible rape (Pen. Code, § 261, subd. (a)(2)), two counts of forcible sodomy (Pen. Code, § 286, subd. (c)(2); counts 7 & 9), and count 8 – assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), with findings as to counts 5, 6, 7, and 9 that appellant committed aggravated kidnapping (Pen. Code, § 667.61, subd. (d)(2)), and a finding appellant suffered a prior felony conviction (Pen. Code, § 667, subd. (d)). The court sentenced appellant to prison for life with the possibility of parole, plus 200 years to life, plus eight years. We affirm the judgment.

A. A. (Mother) is the birth mother of A. H. (the child), and the daughter of Nichole R. (maternal grandmother). On March 14, 2012, at a Welfare and Institutions Code section 366.26 hearing,[1] the juvenile court terminated Mother’s parental rights. At the same hearing, the court denied the maternal grandmother’s petition under section 388 to have the child placed with her. Mother appeals from both orders of the juvenile court. She contends (1) that she has standing to challenge the denial of the maternal grandmother’s section 388 petition, (2) that the juvenile court erred by failing to provide the maternal grandmother with a full evidentiary hearing on the section 388 motion, and (3) that the decision to terminate her parental rights should be reconsidered de novo on remand. Finding no error, we affirm.

Appellant Landon Anthony Solomon challenges his conviction for petty theft with three prior theft-related convictions (Pen. Code, § 666), contending that there was prosecutorial misconduct and that he received ineffective assistance of counsel.[1] We conclude that appellant has failed to show reversible error, and thus affirm.