CA Unpub Decisions
California Unpublished Decisions
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After walking out of a Neiman Marcus retail store with a $1,195 Theory brand leather jacket stuffed in her purse, defendant, Ellen Waisum Ko was detained by store security. When asked by security why she had taken the jacket without paying, defendant responded “I’m a pirate.†The Santa Clara County District Attorney charged defendant with one count of grand theft of personal property of a value over $950, a violation of Penal Code, section 484-487, subdivision (a).
During a jury trial, a number of loss prevention officers from other stores testified that defendant had stolen merchandise from their stores in the past. After being apprehended on those prior occasions, defendant had stated either that she was a “pirate,†or that she wanted the item and did not want to pay for it. In relation to this evidence of prior offenses, the trial court offered a limiting instruction to the jury. The court instructed that the evidence was being admitted for a limited purpose. Not to show a predisposition to commit theft, or the offense that she was currently charged with, but only to show intent, absence of mistake or accident, or common plan or scheme. Defendant took the stand in her own defense and admitted to taking the merchandise. She claimed that she was taking the merchandise as a protest of the poor conditions in garment factories around the world. The jury found appellant guilty of the sole offense. The court placed defendant on two years formal probation, on the condition she serve 180 days in county jail. The court awarded her 156 total days credit for time served. Appellant filed a timely notice of appeal on June 18, 2012. On appeal, appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in her own behalf within 30 days. Thirty days have elapsed and we have received nothing from the defendant. Pursuant to our obligation as set forth in People v. Wende (1979) 25 Cal.3d 436, we have reviewed the record but have found no arguable issues on appeal. Therefore, we will affirm the judgment. |
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Defendant Sherry Faye Brown pleaded no contest in two proceedings to four felonies (three counts of commercial burglary and one forgery count) with the understanding that she would receive a sentence of no more than five years, four months in prison. On November 9, 2011, in accordance with the negotiated disposition, the court sentenced defendant to an aggregate prison term in both cases of five years, four months. The court ordered that defendant receive a total of 242 days of presentence credits in the two cases, consisting of 162 days of custody credits and 80 days of conduct credits.
Defendant claims on appeal that she is entitled to 82 days of additional conduct credits under the latest amendment to Penal Code section 4019, which expressly provides that it applies to defendants whose crimes were committed on or after October 1, 2011.[1] Here, each of the offenses of which defendant was convicted was committed prior to October 1, 2011. Her primary contention is that, notwithstanding the clear inapplicability of the latest amendment to section 4019, it must be applied retroactively because its prospective application would violate her constitutional right to equal protection of the law. Last year, we rejected an identical equal protection challenge in People v. Kennedy (2012) 209 Cal.App.4th 385 (Kennedy). We therefore will affirm the judgment. |
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Defendant Carolyn Huerta appeals from a judgment of criminal conviction, contending that (1) sentence on two of the three charges against her should have been stayed under Penal Code section 654, subdivision (a) (§ 654(a)); (2) she is entitled to credit for presentence confinement at the rate prescribed by the October 2011 amendments to Penal Code section 4019; and (3) one of the fines against her should be stricken as duplicative of a fine previously imposed. Respondent concedes the first point as to one charge, but not the other. Defendant in turn concedes that her second claim of error is foreclosed by the California Supreme Court’s decision in People v. Brown (2012) 54 Cal.4th 314. As to the remaining points of contention, we conclude that the sentence on the remaining charge should also have been stayed under section 654(a), and that the judgment must be corrected in three respects with respect to the fines imposed. We will direct appropriate modifications of the judgment and affirm the judgment as modified.
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The minor, A.S., appeals from a dispositional order following findings by the juvenile court (on two separate petitions) that he committed the following crimes: aggravated assault, harassing telephone calls, battery with serious bodily injury, and public fighting. A.S. challenges the trial court’s decision when setting the maximum term of confinement. First, A.S. argues, and the Attorney General agrees, the trial court should have stayed the term for count 3 (public fighting) pursuant to Penal Code section 654[1] because it was committed with the same intent as counts 1 (aggravated assault) and 2 (battery with serious bodily injury). Second, A.S. contends the trial court erred by imposing consecutive terms automatically without understanding its discretion to impose concurrent terms. Finding only A.S.’s first argument has merit, we modify the dispositional order to indicate the maximum term of confinement is fixed at seven years and two months, and we affirm the order as modified.
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Appellant Joanna Chambers was accused of embezzling money from and, as the prosecutor alleged in closing argument, “cooking the books†of a construction company she worked for. She was convicted by jury of one count of grand theft and 67 counts of violating Penal Code section 471, which makes it a crime to make a fraudulent entry in any book of records.[1] She contends the trial court did not properly instruct the jury on the elements of section 471, but we disagree and affirm the judgment.
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Darrell Martin Gray appeals from a judgment after a jury convicted him of special circumstances first degree murder, shooting at an occupied motor vehicle, conspiracy to commit murder, three counts of premeditated and deliberate attempted murder, and street terrorism, and found true he committed the offenses for the benefit of a criminal street gang, and he was a gang member who vicariously discharged a firearm and caused great bodily injury. Gray argues his defense counsel, who has since been disbarred, was ineffective and the prosecutor committed multiple instances of misconduct. As we explain below, we conclude Gray’s defense counsel was ineffective but Gray was not prejudiced. We also conclude the prosecutor committed one instance of misconduct but again Gray was not prejudiced. We affirm the judgment.
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Appellant/defendant Christopher Leal Valencia pleaded no contest to two felony counts: second degree burglary (Pen. Code,[1] § 459) and grand theft (§ 487, subd. (a)). Thereafter, he received a jury trial on a misdemeanor charge of indecent exposure (§ 314, subd. (a)) and was convicted. He was sentenced to two years in prison.
On appeal, his appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We will affirm. |
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Following a 2011 jury trial, appellant Buddy Ray Gary was convicted of a first degree felony murder that occurred in 1976. (Pen. Code, § 187, subd. (a).)[1] The trial court sentenced Gary to a prison term of seven years to life, the allowed sentence in 1976. The sentence was ordered to run consecutively to a 25-year-to-life prison term that Gary was already serving.
On appeal, we reject Gary’s contention that he was denied his right to confront adverse witnesses in violation of the Sixth Amendment to the United States Constitution. We agree with his contention that the imposition of fines under sections 1202.4 and 1202.45 violates the prohibition against ex post facto laws and the matter must be reversed and remanded for a restitution hearing as described in this opinion. In all other respects, we affirm. |
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Raymond Torres Sepulveda was convicted in Count 1 of possession of methamphetamine while armed with a loaded operable firearm (Health & Saf. Code, § 11370.1, subd. (a)) and in Count 2 of possession of ammunition (Pen. Code, § 12316, subd. (b)(1)).[1] It was further found true as to Count 2 that Sepulveda was prohibited from owning or possessing a firearm because of previous felony convictions (§§ 12021, 12021.1; Welf. & Inst. Code, §§ 8100, 8103). The trial court sentenced Sepulveda to a total term of two years in state prison.
On appeal, Sepulveda alleges numerous instances of ineffective assistance of counsel; that the prosecutor impermissibly commented on his postarrest silence; and that there was insufficient evidence of a “usable amount†to support the possession of methamphetamine conviction in Count 1. We disagree and affirm. |
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Defendant Hugo Marquez Hurtado was convicted of raping and battering his girlfriend, and then subjecting her to criminal threats and trying to dissuade her from testifying. He was also convicted of resisting arrest. In this appeal, he argues that the exclusion from evidence of a recording of a telephone call he made to the victim from jail was prejudicially erroneous; that the trial court abused its discretion when it imposed the upper term for the rape conviction; that either the sentence for making a criminal threat or the sentence for attempting to dissuade a witness should have been stayed under Penal Code section 654; and that there was a material variance between the information and the proof adduced at trial for the attempted dissuading charge. We reject each of these contentions. We agree with the People, however, that the trial court erred when it imposed a sentence of one-third of the middle term for trying to dissuade a witness. By the express terms of Penal Code section 1170.15, the full middle term must be imposed for that offense. We remand for resentencing on that count and otherwise affirm the judgment.
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Cruz Garduno Gonzalez was charged with one count of lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a))[1], two counts of oral copulation or sexual penetration by a person 18 years or older with a child under the age of 10 (§ 288.7, subdivision (b)), and one count of sexual intercourse or sodomy by a person 18 years or older with a child under the age of 10 (§ 288.7, subd. (a)).
Pursuant to a plea bargain, defendant pleaded guilty to two counts of oral copulation or sexual penetration on a child under the age of 10. (§ 288.7, subd. (b).) He agreed to a sentence of 30 years to life, consisting of two consecutive terms of 15 years to life. The court found a factual basis for the plea and imposed the agreed-upon sentence, including appropriate credits, and dismissed the remaining counts. Defendant filed a timely notice of appeal from the sentence or other matters occurring after the plea. We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. We offered defendant the opportunity to file any supplemental brief he deemed necessary. Defendant did not file a supplemental brief. |
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Defendant and appellant Salvador Javier Camacho appeals his conviction for possession of an illegal dirk or dagger (Pen. Code, former § 12020, subd. (a)(4)), possession of PCP (Health & Saf. Code, § 11377, subdivision (a)) and one count of active gang participation (Pen. Code, § 186.22, subd. (a)). [1]
Defendant contends that the evidence was insufficient to sustain the conviction for active gang participation because the evidence did not show that he acted in concert with another gang member in possessing the PCP or the knife. In People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), which was decided after the conclusion of briefing in this case, the California Supreme Court held that section 186.22, subdivision (a) requires proof beyond a reasonable doubt that a defendant acted with one or more criminal street gang members in committing a felony. Here, although defendant was in the company of a fellow gang member when he was arrested, there is no evidence that his companion jointly possessed the knife or the PCP. Accordingly, as we will discuss, the conviction for active gang participation must be reversed. Our conclusion that the conviction for active gang participation must be reversed for insufficient evidence renders moot defendant’s second contention, that section 654 precludes imposition of an unstayed sentence on the active gang participation count. |
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Defendant Leon Johnson appeals from a judgment entered after a jury convicted him of first degree murder in the killing of victim Angie Borrayo in 1975. On appeal, Johnson contends (1) that the trial court abused its discretion in permitting the prosecutor to introduce evidence of other sex crimes Johnson had committed, and (2) that the trial court violated his Sixth Amendment right to confront a witness when the court admitted a witness's prior statement after determining that the witness was effectively unavailable due to her inability to recall many of the events.
We conclude that the trial court did not abuse its discretion in permitting the prosecutor to introduce evidence of other uncharged sexual offenses that Johnson committed. We also reject Johnson's contention that the trial court erred in admitting a witness's prior statement after determining that she was an unavailable witness. As Johnson concedes, the Supreme Court has already decided this issue against him. We therefore affirm the judgment of the trial court. |
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