CA Unpub Decisions

On December 16, 2011, an information charged defendant and appellant Christopher Lee Brown with robbery under Penal Code[1] section 211. The information also alleged that defendant had served three prior prison terms under section 667.5, subdivision (b). Moreover, the information alleged that defendant previously had been convicted of a serious or violent felony, which constituted a strike prior under section 667, subdivisions (c) and (e)(1), and section 1170.12, subdivision (c)(1). The information further alleged that defendant had a prior conviction for a serious felony under section 667, subdivision (a). The information was subsequently amended to allege that defendant had a second strike prior.
On March 12, 2012, jury trial commenced. Three days later, the jury found defendant guilty of robbery in violation of section 211.[2]

Plaintiff and Appellant the People of the State of California appeal from the order denying their Penal Code section 871.5[1] motion to reinstate the complaint. The People filed a complaint against defendant James Russell Graham charging him with burglary and receiving stolen property. Defendant had already pleaded guilty to a subsequent burglary where he was found with items taken in the instant burglary. Defendant brought a motion to dismiss the complaint pursuant to section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) arguing that the People had to file all of the cases together. The magistrate dismissed the complaint. The People filed a motion to reinstate the complaint pursuant to section 871.5, which was denied on the grounds that the superior court lacked jurisdiction to hear the appeal since section 654 and Kellett are not included in the statutory provisions appealable under section 871.5.
The People claim on appeal that the superior court erred by finding that it lacked jurisdiction to hear the motion to reinstate the complaint and that the magistrate erred in dismissing the complaint.

On May 19, 2011, an information was filed charging defendant and appellant Mark Allen Smith with one count of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)) and an enhancement of inflicting great bodily injury (Pen. Code, §§ 667, 1192.7, subd. (c)(8)).
On September 12, 2011, proceedings in this case were suspended under Penal Code section 1368. After the completion of psychological evaluations, on October 11, 2011, the proceedings were reinstated.
On November 7, 2011, trial by jury commenced. Two days later, the jury found defendant guilty of battery causing serious bodily injury (count 1), but found that defendant did not inflict great bodily injury.
On December 8, 2011, defendant was sentenced to the midterm of three years in state prison on count 1; however, the execution of the sentence was suspended, and formal probation was granted for 60 months. Defendant was committed to the custody of the Riverside County Sheriff for 330 days, with credit for time served of 230 actual days, plus 120 days conduct credit under Penal Code section 4019, for a total of 350 days. The trial court also ordered defendant to pay various fines and fees.
On January 24, 2012, defendant filed his timely notice of appeal.

On December 16, 2011, an information charged defendant and appellant Christopher Lee Brown with robbery under Penal Code[1] section 211. The information also alleged that defendant had served three prior prison terms under section 667.5, subdivision (b). Moreover, the information alleged that defendant previously had been convicted of a serious or violent felony, which constituted a strike prior under section 667, subdivisions (c) and (e)(1), and section 1170.12, subdivision (c)(1). The information further alleged that defendant had a prior conviction for a serious felony under section 667, subdivision (a). The information was subsequently amended to allege that defendant had a second strike prior.
On March 12, 2012, jury trial commenced. Three days later, the jury found defendant guilty of robbery in violation of section 211.[2] Defendant then waived his right to a jury trial on the prior convictions. The trial court dismissed two of the prior prison terms alleged under section 667.5, subdivision (b), on the prosecutor’s motion. The trial court then found that defendant had served the remaining prior prison term under section 667.5, subdivision (b). The court also found true one of the two strike priors alleged under section 667, subdivisions (c) and (e)(1), and section 1170.12, subdivision (c)(1). The court further found that defendant had suffered a prior serious felony under section 667, subdivision (a).
On April 20, 2012, defendant filed a motion for a new trial on the grounds of prosecutorial misconduct; and a motion to strike the remaining strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied both motions.
On June 6, 2012, the trial court sentenced defendant to 11 years in state prison, as follows: Midterm of three years for the section 211 violation, doubled to six years because of the strike prior, plus a consecutive term of five years for the prior serious felony under section 667, subdivision (a). The court also imposed but stayed an additional one year for the prior prison term under section 667.5, subdivision (b).[3] The court awarded defendant presentence credits of 263 actual days and 39 days under section 2933.1. The court also imposed fines and fees as required under the law.
On June 19, 2012, defendant filed a timely notice of appeal.

Plaintiff and Appellant the People of the State of California appeal from the order denying their Penal Code section 871.5[1] motion to reinstate the complaint. The People filed a complaint against defendant James Russell Graham charging him with burglary and receiving stolen property. Defendant had already pleaded guilty to a subsequent burglary where he was found with items taken in the instant burglary. Defendant brought a motion to dismiss the complaint pursuant to section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) arguing that the People had to file all of the cases together. The magistrate dismissed the complaint. The People filed a motion to reinstate the complaint pursuant to section 871.5, which was denied on the grounds that the superior court lacked jurisdiction to hear the appeal since section 654 and Kellett are not included in the statutory provisions appealable under section 871.5.
The People claim on appeal that the superior court erred by finding that it lacked jurisdiction to hear the motion to reinstate the complaint and that the magistrate erred in dismissing the complaint.

On May 19, 2011, an information was filed charging defendant and appellant Mark Allen Smith with one count of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)) and an enhancement of inflicting great bodily injury (Pen. Code, §§ 667, 1192.7, subd. (c)(8)).
On September 12, 2011, proceedings in this case were suspended under Penal Code section 1368. After the completion of psychological evaluations, on October 11, 2011, the proceedings were reinstated.
On November 7, 2011, trial by jury commenced. Two days later, the jury found defendant guilty of battery causing serious bodily injury (count 1), but found that defendant did not inflict great bodily injury.
On December 8, 2011, defendant was sentenced to the midterm of three years in state prison on count 1; however, the execution of the sentence was suspended, and formal probation was granted for 60 months. Defendant was committed to the custody of the Riverside County Sheriff for 330 days, with credit for time served of 230 actual days, plus 120 days conduct credit under Penal Code section 4019, for a total of 350 days. The trial court also ordered defendant to pay various fines and fees.
On January 24, 2012, defendant filed his timely notice of appeal.

On Christmas Day 2005, defendant Martin Leyva Valdez fired four slug rounds from a shotgun through the front door of a house. He killed an 11-year-old boy. He missed the boy’s parents and brother, who watched the boy die.
Defendant was a member of the Casa Blanca gang. The night before — on Christmas Eve — a member of the Hillside gang had shot and injured several members of Casa Blanca. Defendant evidently intended to retaliate by firing into the house of the Hillside shooter. By mistake, however, he fired into a very similar house just three doors away down the street.
While making his getaway, defendant used the shotgun to menace a potential witness. There was also evidence that defendant forcibly stole a carton of beer from a stranger.
Defendant was charged with:
Count 1: Murder (Pen. Code, § 187, subd. (a)), with a gang special circumstance (Pen. Code, § 190.2, subd. (a)(22)) and with gang (Pen. Code, § 186.22, subd. (b)) and firearm (Pen. Code, § 12022.53, subd. (d)) enhancements.

Helen Lock, administrator with will annexed of the estate of decedent Robert Clifford Reed, appeals a judgment enforcing a settlement agreement with claimants David Cunnyngham, Kristy Fyffe, Amy Austin, and Mirna Cunnyngham (together Claimants). On appeal, Lock primarily contends the evidence is insufficient to support the judgment.

Justin Y. (father) appeals from the juvenile court’s orders finding jurisdiction over his daughter, Breanna Y., under Welfare and Institutions Code section 300, subdivision (b),[1] based on father’s failure to protect Breanna from risks of harm associated with the known mental illness of the child’s mother. We affirm.

Calvin G. appeals from juvenile court orders denying his request for presumed father status and terminating parental rights as to his biological daughter, K.F. He argues the court violated his due process rights as a parent. He also argues that the Los Angeles Department of Children and Family Services (the Department) failed to comply with inquiry and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., ICWA). We find no due process violation of father’s parental rights, but we conclude that information provided by father was sufficient to trigger the inquiry and notice requirements of ICWA and remand for that purpose.

Ronald Sorenson appeals from a judgment declaring him to be a mentally disordered offender (MDO) and committing him to the Department of Mental Health for treatment. (Pen. Code, § 2962.)[1] Appellant contends that no admissible evidence was offered to support the trial court's findings that appellant's commitment offense involved the use of force or violence, and that he received the requisite 90 days of treatment within the year prior to his hearing before the Board of Parole Hearings (BPH). We affirm.

Jesse Suares appeals from the judgment entered following his conviction by jury on numerous counts: (1) assault with a firearm (Pen. Code, § 245, subd. (a)(2)); (2) evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)); (3) resisting an executive officer (Pen. Code, § 69); (4) transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)); (5) possession for sale of a controlled substance[1] (Health & Saf. Code, § 11378); (6) possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)); (7) possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)); (8) leaving the scene of an accident (Veh. Code, § 20002, subd. (a)); and (9) assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)).[2] Appellant contends that the trial court erred in imposing firearm enhancements pursuant to section 12022.5, subdivision (a), in counts 1 and 9 because use of a firearm is an element of assault with a firearm and assault with a semiautomatic firearm. He further contends that the court erred in imposing section 186.22, subdivision (b)(1)(C) gang enhancements on counts 1 and 9 because there was no underlying violent felony. We disagree with the contentions and affirm the judgment.

Ricardo Fajardo appeals from the judgment entered following his conviction by jury on three counts of second degree robbery. (Pen. Code, § 211.)[1] We affirm.

This is an appeal from an order denying a special motion to strike pursuant to Code of Civil Procedure section 425.16. Because the defendant demonstrated that the plaintiff’s claims arise from “protected activity” within the meaning of this statute but the plaintiff failed to meet its burden to establish the probability of prevailing on its claims, we reverse.