CA Unpub Decisions

Defendant and appellant Kewan Bernard Red[1] pled guilty to the sheet as set forth, post, with an indicated sentence of 20 years four months. He was then sentenced to the indicated sentenced of 20 years four months to state prison with credit for time served. Defendant appeals from the judgment, challenging the sentence or other matters occurring after the plea as well as the validity of the plea. We affirm the judgment.

Appellant G.B. (father) appeals the jurisdictional and dispositional orders regarding his son, M.B. (the child). He contends that there was insufficient evidence to support the juvenile court’s jurisdictional findings under Welfare and Institutions Code section 300,[1] subdivision (b), and that the court erred in removing the child from his custody. We affirm.

Appellant M.A. (mother) is the mother of S.A. (the child). The court adjudged the child to be a dependent of the court and ordered mother to participate in reunification services. She failed to participate in her case plan, and the court terminated her services. It then ordered that the child’s permanent plan be long-term foster care, with the goal of legal guardianship. On appeal, mother argues that the court violated her due process rights when it denied her request for a contested postpermanency review hearing. We affirm.

Defendant and appellant Patty Ramdhanramjohn appeals from the trial court’s denial of her motion to reduce two felony burglary convictions to misdemeanors, pursuant to Penal Code section 17, subdivision (b).[1] We affirm.

Defendant and appellant Melinda Marshall filed a petition under Penal Code section 2966, subdivision (b),[1] challenging the Board of Prison Terms’ certification that she met all six criteria for commitment for treatment as a condition of parole under the Mentally Disordered Offender Act (MDO Act, § 2960 et seq.).[2] The trial court confirmed that the MDO criteria had been met. On appeal, defendant contends that there was insufficient evidence to sustain the MDO commitment, since her underlying conviction was for attempted kidnapping (§§ 664/207), which is not an enumerated, qualifying offense under section 2962. We affirm.

Pursuant to a plea agreement, defendant and appellant Harry Stanley Walls pled guilty to driving with a .08 percent blood-alcohol level and causing injury. (Veh. Code, § 23153, subd. (b).)[1] Defendant was released on his own recognizance under a Cruz[2] waiver, subject to various terms and conditions. The trial court later found that defendant violated his Cruz waiver by failing to appear for sentencing. The court issued a bench warrant for his arrest. Defendant was later arrested, and the court placed him on probation for a period of three years. He subsequently violated his probation. The court extended his probation for two years.
On appeal, defendant contends that the court erred in extending his probation period for two years, rather than one year, as the court originally intended. We affirm.

Defendant and appellant Jarold Robert Clovis was charged by felony complaint with sexual battery while restraining the victim (Pen. Code, § 243.4, subd. (a), count 1),[1] sexual battery (§ 243.4, subd. (e)(1), count 2), and child molesting (§ 647.6, subd. (a)(1), count 3). Pursuant to a plea agreement, he pled guilty to count 1, and the trial court dismissed the other counts. The court placed him on probation for three years, under certain terms.
On appeal, defendant contends: 1) the condition requiring him to submit to polygraph testing is overbroad; 2) the condition prohibiting him from using or possessing any computer or internet device, except in the course of employment, is overbroad, unrelated to his crime, and unrelated to future criminality; and 3) the court erred in requiring him to pay the cost of probation supervision and other costs associated with his probation conditions, without first making a finding on his ability to pay; the court also erred in conditioning his probation on the payment of certain costs. The People concede, and we agree, that the probation condition regarding use of the internet should be modified. The condition regarding the polygraph testing should also be modified. Furthermore, we remand the matter for the trial court to eliminate the requirement that defendant pay the costs associated with specified conditions, as a condition of probation, and to issue a separate order for the payment of such costs.

Defendant and appellant Joshua Brown (defendant) served three years on felony probation, including 270 days of local custody on weekends, after pleading guilty to discharging a firearm in a grossly negligent manner, which could result in injury and death of a person. (Pen. Code, § 246.3.)[1] Defendant argues the trial court, at a postprobation hearing in which it vacated his guilty plea and conviction under section 1203.4, (1) failed to afford him its informed discretion when it denied his motion under section 17, subdivision (b)(3), to reduce his conviction to a misdemeanor; and (2) denied his motion to vacate probation supervision costs imposed after the expiration of his probation. As discussed below, we reject both of these contentions and affirm the judgment.

This action is a consolidation of seven complaints for conversion filed by Jeffrey Heston, in propria persona[1], against Bank of America, N.A., and Daemon Feuillet and other bank employees (collectively, the Bank). Heston, a payee of checks written by an account holder of the Bank, cashed the checks at a bank branch, and the Bank charged him a disclosed $5 per check service fee it imposes on noncustomers.[2] Heston appeals a judgment of dismissal entered after the court sustained the Bank's demurrer without leave to amend. We affirm the judgment.

Johnny E., a minor, appeals his adjudication as a ward of the court, arguing several of his probation conditions are constitutionally overbroad because they lack a scienter requirement. He also argues the probation conditions related to "gang" association are vague and should be modified to refer to "criminal street gangs." The People agree with Johnny's proposed modifications to his probation conditions.
FACTUAL AND PROCEDURAL BACKGROUND
Johnny admitted he stole a pair of shoes from J.C. Penney in Fashion Valley Mall on May 25, 2011. On July 25, 2011, he was adjudicated a ward of the court, placed in a residential facility, and given probation subject to a number of probation conditions.

Raynaldo Salazar appeals from a judgment entered upon his conviction for the first degree murder of Raimundo Lopez and being a felon in possession of a firearm, and the true finding that he personally discharged a firearm causing death. Salazar appeals, contending the trial court erred by sua sponte failing to instruct the jury: (1) on the principles of accomplice testimony; and (2) consistent with CALJIC No. 8.71 that any doubt as to the degree of murder had to be resolved in his favor. We reject his contentions and affirm the judgment.

Codefendants Michael Caldera, Jr. and Elizabeth Lizette Lugo were tried jointly in the San Bernardino County Superior Court. The jury convicted Caldera of second degree robbery (Pen. Code,[1] § 211; counts 1-3, 5-8, 9, 10, 13, 14), resisting an executive officer (§ 69; count 12), and simple assault (§ 240; count 11) as a lesser included offense of the charged offense of assault on a peace officer. The jury convicted Lugo of seven counts of second degree robbery (§ 211; counts 1-3, 5-7, 9). With the exception of count 9 as to Caldera, the jury found true allegations that both Caldera and Lugo personally used a firearm (§ 12022.53, subds. (b) and (e)(1)) in the robbery offenses.
The trial court sentenced Caldera to a total prison term of 71 years four months, and ordered various fines and fees as well as victim restitution. It sentenced Lugo to a total prison term of 37 years eight months.

In this case the appellant was convicted of the attempted premeditated murder of a police officer. In addition, the jury found appellant was a felon in possession of a firearm, discharged a firearm, used a firearm, and committed the attempted murder for the benefit of a gang.
Appellant was stopped by a police officer and, following an initial attempt to flee on foot from the location of the traffic stop, exchanged multiple gunshots with the officer. In his principal contentions on appeal, appellant makes related hearsay and confrontation clause arguments with respect to statements attributed to a witness whose home was invaded by appellant as appellant attempted to flee the scene of the shooting. The record suggests the witness was very frightened and made the disputed statements in an effort to obtain assistance from the police after his home had been invaded by the appellant and neither the witness nor the law enforcement personnel present were entirely sure appellant had been apprehended or was acting alone. As excited utterances, the statements were not barred by the hearsay rule. Moreover, the record shows the likelihood of excluding the statements on the alternative grounds they were testimonial and therefore barred by the confrontation clause of the United State Constitution was not very great and that the cost of requiring the prosecution to meet such a constitutional objection by elaborating further on the witness's frightened state of mind far outweighed the benefit of excluding what turned out to be the witness's fairly benign statements. Thus the trial court did not error in overruling trial counsel's hearsay objection and trial counsel, having been overruled on his hearsay objection, apparently made a valid tactical decision to forego a doubtful confrontation clause objection and instead move the jury's attention away from a further damaging discussion of the victim's mental state.
Importantly, even if the witness's statements were objectionable they were in no sense prejudicial. The witness's statement did not identify appellant as the shooter, but merely explained how law enforcement officers located the gun appellant used in the shooting and a shirt he was wearing. DNA evidence and other witness testimony, not the witness's out of court statement, convincingly connected appellant to the gun and the shirt.
In addition to his hearsay and confrontation clause objections, appellant argues his trial counsel was ineffective in failing to raise objections to gang evidence offered by the prosecution and in failing to move to bifurcate trial of the gang allegations. We reject these contentions as well.
With one exception, we also reject appellant's contentions with respect to the sentence imposed by the trial court.

After defendant Gary Clinton Eads pleaded no contest to forcible rape and assault with intent to commit rape ( "Pen. Code, §§ 220, 261, subd. (a)(2)" Pen. Code, §§ 220, 261, subd. (a)(2); section references that follow are to the "Penal Code" Penal Code), the trial court sentenced him to 12 years in state prison. The court also imposed a restitution fine of $2,400 ( "§ 1202.4, subd. (b)" § 1202.4, subd. (b)) and a suspended restitution fine in the same amount, to be imposed if parole were revoked ( "§ 1202.45" § 1202.45). The court found defendant had the ability to pay the fine “based upon Social Security Disability benefits that he will receive.” Defendant did not object to the amount of the fine or to the court’s reasoning.
Defendant appeals, contending: (1) the restitution fine was unlawfully imposed as to any amount over the $200 statutory minimum because the court’s reason for finding defendant could pay was legally incorrect; (2) since the amount of the fine was unauthorized, his failure to object did not forfeit the issue; and (3) if his failure to object forfeited the issue, he received ineffective assistance of counsel.