CA Unpub Decisions

A jury found Richard James Goolsby, defendant and appellant (hereafter defendant), guilty of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b),[1] and further found true the allegation that he caused more than one structure to burn within the meaning of section 451.1, subdivision (a)(4) based on evidence that defendant set a fire that caused two motor homes to burn.[2] Because the felony conviction constituted defendant’s third strike, the trial court sentenced him to the mandatory term of 25 years to life in state prison. The trial court also imposed three prior serious felony enhancements under section 667, subdivision (a) after first finding those allegations true,[3] and a five-year sentence enhancement based on the jury’s true finding on the section 451.1 allegation.
Defendant raises various challenges to the jury’s verdict and to his sentence. We agree with his assertion that his motor home is not a structure.[4] Therefore, the evidence that defendant set fire to his motor home does not support the jury’s verdict finding defendant guilty of committing arson of an inhabited structure, and also does not support the jury’s true finding on the multiple structure enhancement. Because the trial court instructed the jury on the necessarily included lesser offense of arson of property (§ 451, subd. (d)), we will reduce defendant’s conviction to that crime and will strike the section 451.1, subdivision (a)(4) multiple structure enhancement. We also will strike all but one of the three section 667, subdivision (a) five-year enhancements.

Kathryn S. appeals findings and orders entered at a 12-month status review hearing held pursuant to Welfare and Institutions Code section 366.21, subdivision (f). Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny Kathryn's requests to review the record for error and to address the Anders issues. (Anders v. California (1967) 386 U.S. 738.)
Citing In re Phoenix H. (2009) 47 Cal.4th 835, counsel asks this court to exercise its discretion to provide Kathryn with the opportunity to file a supplemental brief in propria persona. Counsel also asks this court to order counsel to brief any arguable issue. (Penson v. Ohio (1988) 488 U.S. 75, 88.) The requests are denied.

Mark W. appeals findings and orders entered at a permanency plan and selection hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny Mark's requests to review the record for error and to address the Anders issues. (Anders v. California (1967) 386 U.S. 738.)
Citing In re Phoenix H. (2009) 47 Cal.4th 835, counsel asks this court to exercise its discretion to provide Mark with the opportunity to file a supplemental brief in propria persona. Counsel also asks this court to order counsel to brief any arguable issue. (Penson v. Ohio (1988) 488 U.S. 75, 88.) The requests are denied.

Mirmassoud Kashani appeals two restitution orders arising from his convictions of various crimes. The details of those crimes and convictions are set forth in this court's nonpublished opinion in People v. Kashani (Oct. 26, 2012, D059467). The first restitution order, made on February 10, 2011, was in favor of First Franklin Financial and in the amount of $163,270. Kashani's challenge to that order was litigated in No. D059467, and he may not challenge the order again in the instant appeal. The second restitution order, made on June 14,
2012, was in favor of Fieldstone Mortgage and in the amount of $152,418.50.[1] At the restitution hearing, Kashani did not contest the amount of the loss Fieldstone Mortgage suffered. He now contends, as he did at the hearing, that the restitution award to Fieldstone Mortgage violates the antideficiency statutes (Code Civ. Proc., § 580a et seq.).

Kathryn S. appeals findings and orders entered at a 12-month status review hearing held pursuant to Welfare and Institutions Code section 366.21, subdivision (f). Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny Kathryn's requests to review the record for error and to address the Anders issues. (Anders v. California (1967) 386 U.S. 738.)

Mark W. appeals findings and orders entered at a permanency plan and selection hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny Mark's requests to review the record for error and to address the Anders issues. (Anders v. California (1967) 386 U.S. 738.)
Citing In re Phoenix H. (2009) 47 Cal.4th 835, counsel asks this court to exercise its discretion to provide Mark with the opportunity to file a supplemental brief in propria persona. Counsel also asks this court to order counsel to brief any arguable issue. (Penson v. Ohio (1988) 488 U.S. 75, 88.) The requests are denied.

A jury convicted defendant Dwayne Ivey of numerous sexual crimes against a minor child, including five counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a),[1] counts 1-3, 5 & 6), two counts of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a), counts 7 & 8), two counts of sodomy with a child 10 years of age or younger (§ 288.7, subd. (a), counts 9 & 10), one count of digital penetration on a child 10 years of age or younger (§ 288.7, subd. (b), count 11), and one count of oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b), count 12). The jury also found true the special allegation, alleged in connection with counts 1 through 3, 5 and 6, that Ivey had engaged in substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8). Ivey was sentenced to an aggregate prison term of 146 years to life. On appeal, Ivey argues that three acts of alleged prosecutorial misconduct, coupled with the improper admission of inflammatory evidence, denied him a fair trial.[2]

Mirmassoud Kashani appeals two restitution orders arising from his convictions of various crimes. The details of those crimes and convictions are set forth in this court's nonpublished opinion in People v. Kashani (Oct. 26, 2012, D059467). The first restitution order, made on February 10, 2011, was in favor of First Franklin Financial and in the amount of $163,270. Kashani's challenge to that order was litigated in No. D059467, and he may not challenge the order again in the instant appeal. The second restitution order, made on June 14,
2012, was in favor of Fieldstone Mortgage and in the amount of $152,418.50.[1] At the restitution hearing, Kashani did not contest the amount of the loss Fieldstone Mortgage suffered. He now contends, as he did at the hearing, that the restitution award to Fieldstone Mortgage violates the antideficiency statutes (Code Civ. Proc., § 580a et seq.).

Defendant Robert Rainbow Nelson entered a negotiated plea of guilty to illegally taking a vehicle and being an unlicensed driver, and was placed on formal probation.
On appeal, defendant contends the trial court imposed at sentencing various nonmandatory fees that were not included in the plea agreement. The People agree that discretionary fees not included in the plea agreement should be stricken from the order of probation. We agree with the parties and shall direct the order of probation to be amended.

Plaintiff Randall J. Haberman appeals from a trial court judgment denying his mandamus petition challenging Department of Motor Vehicles’ (DMV) suspension of his driving privilege under the “administrative per se” statutes ( ADDIN BA xc <@st> xl 28 s CNNWRV000001 xpl 1 l "Veh. Code, § 13353.2 et seq." Veh. Code, § 13353.2 et seq.)[1] for driving with a prohibited blood alcohol concentration (BAC). He contends the trial court erred in denying his petition for writ of mandate because (1) he was not lawfully arrested, a prerequisite for administrative license suspension, and (2) he “could not reasonably have been found to have been driving with a prohibited BAC because both elements were not concurrently established.” We shall conclude that Haberman’s arrest was lawful, and that there is ample evidence to support the trial court’s conclusion he drove with a BAC of 0.08 percent or higher. Accordingly, we shall affirm the judgment.

In short order, the parties met in April 2005, married in October 2005, had a son in May 2006, separated in September 2007, and instituted the instant dissolution action in November 2007 on the petition of appellant Farah Taghavi. It then took until July 2011 for those proceedings to come to a judgment. This incorporated both an April 2011 statement of decision after trial and a May 2011 order that was in response to Taghavi’s posttrial request (in February 2011) for a modification of custody and to her objections (in April 2011) to the statement of decision.

Convicted of burglary, attempted false imprisonment, unlawful use of tear gas, and possession of a deadly weapon, defendant Udi Fishman appeals, contending the trial court erred by: (1) improperly excluding certain impeachment evidence; (2) refusing to disclose certain e-mails one of the victims sent on her employer’s computer system; and (3) failing to provide the jury with a unanimity instruction on the burglary charge. Finding no merit in any of defendant’s arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Juan Trejo first met defendant in 1998, when defendant solicited a bid from Juan to build a 340-foot-long retaining wall on defendant’s property in Los Gatos.[1] After Juan built the wall, he continued to do various work for defendant over the years. In 2006, he rebuilt the wall after a big part of it collapsed. Juan and defendant thereafter were involved in litigation involving an engineering firm and the manufacturers of the stone used in the wall. The litigation ultimately settled in 2009, with Juan receiving $540,000 and defendant receiving $290,000. (The money paid to Juan was apparently for amounts defendant owed him for rebuilding the wall.)

The trial court sentenced defendant Alan Nogueda to a prison term of 26 years and 8 months after a jury convicted him of four counts of assault with a semiautomatic firearm, one count of corporal injury to the parent of his child, one count of false imprisonment, two counts of making criminal threats, one count of endangering the health of a child, and two other misdemeanor violations. The jury found true the allegations that defendant willfully and unlawfully personally used a firearm as to all counts on which he was convicted, except two.
The victims were defendant’s four- and one-half-month-old daughter, his daughter’s mother, and his own mother.
Defendant argues there was insufficient evidence that he had the present ability to commit an assault because there was no evidence the gun was loaded. He argues the trial court should have sua sponte instructed that there was no present ability to commit an assault if the gun was unloaded, and that his trial counsel was ineffective for not requesting such an instruction.
He claims he received ineffective assistance of trial counsel because his counsel failed to object to certain testimony. He also claims two of his prison sentences should have been stayed pursuant to Penal Code section 654.[1]

Defendant Angel Cervantes drove a vehicle while drunk in the parking lot of a nightclub and caused physical injury to four people, two seriously. A jury convicted him of driving under the influence and proximately causing bodily injury and driving with a blood alcohol content of 0.08 percent or more and proximately causing bodily injury. The jury found that he personally inflicted great bodily injury upon two separate victims and proximately caused bodily injury to more than one victim. The jury also found that defendant willfully refused to submit to and complete chemical testing and drove with an alcohol content of 0.15 percent or greater. The jury acquitted defendant of three counts of assault by means of force likely to produce great bodily injury.
Sentenced to state prison for an aggregate term of eight years and four months, defendant appeals. He contends that the trial court abused its discretion in denying probation. We will affirm the judgment.