CA Unpub Decisions

Defendant David Jennings was convicted after jury trial of making a criminal threat (Pen. Code, § 422),[1] assault with a deadly weapon (§ 245, subd. (a)(1)), assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1)), and simple assault (§ 240). The jury also found true the allegations that defendant personally used a deadly and dangerous weapon in the commission of the criminal threat and assault with a deadly weapon offenses. (§§ 667, 1192.7, 12022, subd. (b)(1).) The trial court sentenced defendant to four years in prison, with 318 days of presentence credits.
On appeal, defendant contends that 1) the prior testimony of a witness should not have been admitted at trial, 2) the court should have instructed the jury on the lesser included offense of attempted criminal threat, 3) the punishment on the criminal threat count should have been stayed under section 654, and 4) he is entitled to additional presentence credit under the October 2011 version of section 4019.
For reasons that we will explain, we conclude that the trial court did not err in admitting the prior testimony of a witness, but that with respect to count 1, the criminal threat count, the jury should have been instructed on the lesser included offense of attempted criminal threat. We will reverse the judgment and remand for retrial of count 1, and we will also order the correction of clerical errors in the clerk’s minutes.[2]

Gary A. (father) appeals an order entered after a six-month review hearing continuing placement of his sons, 13-year-old Bryce A. and 12-year-old Cannon A., out of his care under Welfare and Institutions Code section 366.21.[1] He challenges the sufficiency of the evidence supporting the findings that (1) he was provided reasonable reunification services, and (2) his sons would be at substantial risk of detriment if returned to his care. We affirm.

Appellant, Julio Pantoja Martinez, was charged in a criminal complaint, filed on October 1, 2010, with four felony counts of attempted home invasion robbery in concert with two or more persons (Pen. Code, §§ 664, 213, subd. (a)(1)(A), counts 1-4).[1] The complaint also alleged an enhancement for each count that appellant used a gun (§ 12022.53, subd. (b)). An information was filed with the same allegations on March 9, 2011. On April 22, 2011, the trial court denied appellant’s motion for new counsel made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On May 2, 2011, criminal proceedings were suspended pursuant to section 1368. The court directed a psychologist to examine appellant. Dr. Harold L. Seymour evaluated appellant on May 12, 2011. Dr. Seymour found appellant’s attention to be focused, his memory grossly intact, and his thinking processes linear and on topic. Although appellant was undergoing anxiety concerning his trial, Dr. Seymour found no major mental disorder that would interfere with appellant’s ability to be a competent defendant. Dr. Seymour found appellant competent to stand trial and with the ability to competently assist his legal counsel. On May 27, 2011, the trial court found appellant competent to stand trial and reinstated criminal proceedings.
On December 15, 2011, a second Marsden motion was denied by the trial court. On that date, appellant entered into a plea agreement wherein he would admit the allegations in the information and receive a stipulated prison term of 13 years. Appellant executed a felony advisement, waiver of rights, and plea form acknowledging the terms of the plea agreement, the consequences of his plea, and his constitutional rights pursuant to Boykin/Tahl.[2] Appellant waived his Boykin/Tahl rights in the form. At the hearing, the trial court verified that appellant understood the terms of the plea agreement, the consequences of the plea, and had executed and initialed the change of plea form. The parties stipulated that the preliminary hearing transcript constituted a factual basis for the plea. Appellant pled no contest to all four counts and admitted the gun use enhancement as to each count.[3]
On January 17, 2012, the trial court sentenced appellant to prison for a term of three years on count one, plus a consecutive term of ten years for the gun use enhancement for a total term of 13 years. The court sentenced appellant to concurrent sentences on the remaining counts and enhancements. The court imposed a $2,600 restitution fine and granted petitioner 547 days of custody credits consisting of 476 actual days in custody, plus 71 conduct credit days. Appellant did not obtain a certificate of probable cause. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

Appellants, Juliet Demari, individually and doing business as Leona Homes and Westline Financial, and Doug Holland, challenge the trial court’s award of attorney fees to respondents, Desert Oasis Estates, LLC, Alfons Von Den Stemmen and Blanca Gonzalez. Appellants contend the contracts they sued on did not contain an attorney fee provision and therefore attorney fees were not recoverable. However, an additional agreement was incorporated into the contracts that did include an attorney fees provision. Accordingly, attorney fees were authorized. Therefore, the judgment will be affirmed.

Appellant/defendant Tyrik Locke (defendant) was charged with count I, battery causing great bodily injury (Pen. Code,[1] § 243, subd. (d)), and count II, criminal threats (§ 422), based on an incident where defendant punched and threatened Monica Galvan. After a jury trial, defendant was convicted as charged in count I and, as to count II, he was convicted of the lesser included offense of attempting to make a criminal threat (§§ 664/422). He was sentenced to three years in prison.
On appeal, defendant contends his conviction for attempted criminal threats must be reversed because the jury was not properly instructed on the elements of the offense. He also contends the court should have granted his motion to instruct the jury about accident as a defense to battery. We will affirm.

Michael Russell committed multiple crimes with his cousins, Stephan Cartwright and Sidney Maiden. Following a trial severed from that of his relatives, a jury found Russell guilty of two counts of attempted first degree robbery (Pen. Code § 664/§ 212.5, subd. (b));[1] three counts of assault with a deadly weapon (§ 245, subd. (b)); two counts of second degree robbery (§ 212.5, subd. (c)); one count of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)); and one count of active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found true enhancement allegations that Russell personally used a firearm during the second degree robbery and gang participation offenses (§ 12022.5, subd. (a); § 12022.53, subd. (b)), and that he acted for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). Russell was sentenced to a total prison term of 38 years and eight months.
Russell raises two issues on appeal. He challenges the trial court’s denial of his request to display tattoos on his arms to the jury, a request made following police testimony which described the tattoos as being red in color, apparently suggesting affiliation with the Bloods street gang. The court ruled that such a display would be testimonial for purposes of the Fifth Amendment and impermissible unless Russell subjected himself to cross-examination. Russell claims this was reversible error.
Russell also challenges the convictions and findings related to his personal use of a firearm. He asserts the jury’s verdict was based on “physically impossible” and/or “inherently improbable” eyewitness testimony. These arguments flow from the contention made at trial, and again on appeal, that Russell’s left arm is paralyzed.
While we agree that the ruling which prohibited Russell from displaying his tattoos to the jury was erroneous, the error did not affect the verdict and was therefore harmless. Furthermore, the record discloses substantial evidence to support the jury’s true findings concerning the gang allegations and his personal use of a firearm. We affirm the judgment.

A jury convicted appellant, Isaac Sebastian Sotelo, of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))[1] and resisting, delaying or obstructing a peace officer (§ 148, subd. (a)(1)), and in a separate proceeding, the court found true allegations that appellant had suffered a prior conviction that qualified as both a prior serious felony conviction under section 667, subdivision (a) (section 667(a)) and as a “strike,”[2] and that he had served three separate prison terms for prior felony convictions within the meaning of section 667.5, subdivision (b) (section 667.5(b)). The court imposed a prison term of 12 years, consisting of the following: the three-year midterm on the robbery conviction, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) for a total of six years; five years on the prior serious felony enhancement (§ 667(a)) and one year on one of the prior prison term enhancements (§ 667.5(b)). The court neither struck, nor imposed sentence on, the other two section 667.5(b) enhancements.
Prior to trial, appellant made a so-called Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) for discovery of personnel records of two police officers involved in appellant’s arrest. At an in camera hearing on the motion, the court, after reviewing documents produced at the hearing, ordered disclosure of some information.
Appellant has asked this court to review the sealed transcript of the in camera hearing and materials produced by the People at that hearing “to determine if the trial court followed proper Pitchess procedures and disclosed all relevant materials contained in the personnel records.” This is the sole issue raised by appellant. As we explain below, we find no error in the trial court’s ruling on the Pitchess motion. However, as we also explain below, we have concluded the court committed sentencing error. We vacate the sentence and remand for resentencing.

Defendant and appellant George Earl Vinson, Jr., was charged by information with six counts of committing a lewd act upon a minor under the age of 14 years between January 1, 2002 and December 31, 2006. (Pen. Code, § 288, subd. (a), counts 1-6).[1] Counts 1 through 3 alleged offenses committed against M.G., and counts 3 through 6 alleged offenses committed against K.G. As to all six counts, it was alleged that the offenses were committed against more than one victim. (§ 667.61, subds. (b) & (e).) A jury found defendant guilty of all six counts and found the multiple victim allegation as to each count to be true. The court sentenced defendant to state prison for a total indeterminate sentence of 90 years to life, which was comprised of six consecutive terms of 15 years to life. The court granted him 420 custody credits pursuant to section 2933.1.
Defendant filed a timely notice of appeal. We affirm.

A jury convicted defendant Oliver Jones of four sexual offenses against a minor—oral copulation, two counts of sexual intercourse, and a lewd act—committed in 2008 and 2010.[2] The court sentenced defendant to three years in prison.
On appeal, defendant argues the trial court erred by admitting hearsay evidence and by the instructions it gave on the fresh-complaint doctrine. Defendant also seeks to vacate the requirement that he register as a sex offender and he asks to be awarded additional conduct credits of 58 days. We reject defendant’s contentions and affirm the judgment.

Fifteen-month-old D.V. was injured while in the care of her mother’s boyfriend, sustaining a spiral fracture to her left humerus among other injuries. The juvenile court declared D.V. to be a dependent child, offering services to the noncustodial alleged father, but denying services to mother due to the allegation of severe physical abuse. After father’s services were terminated at the six-month review hearing, a hearing pursuant to Welfare and Institutions Code,[1] section 366.26 was set. At approximately this point in time, the mother’s aunt (maternal great-aunt) learned of the proceedings and came forward seeking relative placement. She visited the minor, forging a relationship with the child, and her home was evaluated. However, the minor was also bonded to the foster parents, who wished to adopt. The maternal great-aunt made a request to change a court order (JV-180; § 388), seeking placement of the minor, but the request was denied based on the court’s determination that it would be detrimental to move her from her current foster home placement. The maternal great-aunt appealed.
On appeal, the maternal great-aunt asserts (1) the trial court erred in refusing to hear evidence showing that the foster parents had committed perjury in their application for standing as de facto parents, and (2) the court abused its discretion in denying the section 388 petition. We affirm.

This is an appeal by L.H., objector and appellant, from the trial court’s order on a petition under Probate Code[1] section 3201, granting Dien Mach, the chief medical physician of Patton State Hospital (Patton), petitioner and respondent, authority under section 3208 to consent on L.H.’s behalf to recommended health care procedures and treatment.
L.H. was admitted to Patton in June 2011 after a judge in Los Angeles County Superior Court declared her incompetent to stand trial on various criminal charges. While at Patton, one of its physicians determined L.H. was borderline diabetic. Because she did not want to take medication, the Patton physician agreed to test L.H.’s blood sugar level again in several months. The subsequent test showed defendant’s blood sugar level had gone up. As a result, the Patton physician recommended L.H. take medication for diabetes, as well as submit to various other medical tests and examinations. L.H. declined. At the request of the physician, L.H.’s psychiatrist at Patton tried to persuade her to take the diabetes medication. When L.H. again declined, the physician filed a petition under section 3201 to determine that L.H. lacks capacity to make a health care decision about treatment of her diabetes, and to have respondent named as L.H.’s representative. Following a hearing on that petition, at which the physician, psychiatrist, and L.H. all testified, the trial court found the allegations of the petition true and issued an order authorizing respondent to consent to the recommended treatment on L.H.’s behalf.
In this appeal, L.H. contends the trial court’s order is not supported by substantial evidence. We disagree and, therefore, will affirm.[2]

Defendant and appellant Lori Ann Burchett (defendant) appeals from the judgment entered after a jury found her guilty of the first degree murder of her 18-month-old son, Garrison, and rejected her defense that she was legally insane at the time of the killing. Defendant contends, first, that she proved she was legally insane by a preponderance of the evidence and, therefore, the jury erred in rejecting that defense. Next, defendant contends the trial court incorrectly instructed the jury on the defense of insanity. Finally, defendant contends two jurors engaged in misconduct when they communicated with each other about the case during the sanity phase of the trial and, therefore, the trial court abused its discretion when it declined to dismiss the jurors in question. We conclude no error occurred, and we will affirm the judgment.[1]

While carrying out his law enforcement duties as a San Bernardino County Sheriff’s deputy, defendant Matthew Linderman preyed on numerous vulnerable women by exhorting sexual favors in exchange for prosecutorial leniency. Defendant appeals from judgment entered following jury convictions for sexual battery by restraint (Pen. Code, § 243.4, subd. (a)[1]; count 2); 11 counts of soliciting a bribe (§ 68, subd. (a); counts 3, 4, 5, 7, 9, 11, 13, 15, 17, 19, 24); two counts of solicitation to engage in lewd conduct (§ 647, subd. (a); counts 6, 18); and oral copulation under color of authority (§ 288a, subd. (k); count 8).[2] The trial court sentenced defendant to a 20-year prison term.
Defendant contends the trial court erred in denying his motion to quash a search warrant, and abused its discretion in excluding drug expert testimony and Internet postings and photographs. Defendant also argues there was insufficient evidence to support his convictions as to counts 6, 8, and 18, and as to the 11 counts of soliciting a bribe. Defendant further argues the prosecutor committed prosecutorial error and the trial court improperly sentenced defendant.
We reject defendants’ contentions and we therefore affirm the judgment, except for defendant’s conviction as to count 18, which is reversed on the ground it is barred by the statute of limitations.

Jerome S. (Father) appeals an order issued at a contested 12-month permanency hearing placing two of his four children with their mother, Lu. S. (Mother). He contends the juvenile court violated his right to substantive due process when it failed to return all four children to his care. He also asserts the juvenile court erred when it failed to terminate jurisdiction under Welfare and Institutions Code section 364. (Undesignated statutory references are to the Welfare and Institutions Code.) We reject his assertions and affirm the order.