CA Unpub Decisions

Defendant Jose Alfonso Gonzalez contends the court should have granted him additional conduct credits under the current version of Penal Code section 4019,[1] which applies to offenses “committed on or after October 1, 2011.” (Id., subd. (h).) But he committed his crimes before then, and the statute is not retroactive. We affirm.

The Board of Parole Hearings (the Board) may grant an inmate parole if the inmate does not pose an unreasonable risk of danger to society if released from prison. If the Board grants an inmate parole, the matter is sent to the Governor for review, and the Governor may affirm, modify, or reverse the Board’s decision. If the Board, however, denies an inmate parole in the first instance, the inmate may seek redress in the judicial system.
Here, at a subsequent parole consideration hearing, the Board denied James Rovida, Jr., parole, finding he would pose an unreasonable risk of danger to society or a threat to public safety if released from prison. Rovida filed a petition for writ of habeas corpus in the Orange County Superior Court. The trial court denied the petition finding there was “some evidence” supporting the Board’s decision. Rovida filed a petition for writ of habeas corpus with this court. He argues there is no rational nexus between the evidence that was before the Board and the Board’s determination he is currently dangerous. We disagree.

This appeal presents the sometimes tricky problem of ascertaining whether, under Penal Code section 654,[1] assaults committed in the general course of an armed robbery are divisible from the robbery itself. Assaults committed to accomplish the robbery are not separately punishable, while assaults committed not to further the robbery but for some independent objective are separately punishable. Here, as in People v. Watts (1999) 76 Cal.App.4th 1250 (Watts), the assaults occurred well after the robbery was under way, and those assaults were not “simply a means” of committing the robbery. (See id. at p. 1265.) The trial court’s conclusion these assaults were committed for separate objectives was amply supported by the evidence. We therefore affirm the judgment.

On November 17, 2008, a confidential informant equipped with a hidden video camera bought $50 worth of rock cocaine from appellant Ike Curry as part of a joint FBI-LAPD drug sting operation. In order to avoid compromising the investigation, Curry’s arrest was delayed until November 2010, after bigger fish involved in the drug operation were also arrested.
Curry was charged with one count of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)), along with two Three Strikes allegations. Despite the trial court’s admonishments concerning the risks of self-representation, Curry waived his right to counsel and chose to act as his own lawyer, claiming that he “beat 18 felonies here in the criminal courts building.” However, standby counsel was appointed and attended the trial.

Defendants and appellants Mercedes-Benz Financial Services USA LLC, formerly known as DCFS USA LLC (Mercedes Financial), and Mission Imports, doing business as Mercedes-Benz of Laguna Niguel (Mission Imports; Mercedes Financial and Mission Imports are collectively referred to as Defendants), appeal from an order denying their petitions to compel arbitration. Defendants sought to compel plaintiff and respondent Lee Anne Caron to arbitrate her claims based on an arbitration provision included in the Retail Installment Sales Contract she signed to purchase a preowned vehicle from Mission Imports.

A jury convicted Cameron Joseph Baca of eight counts of committing lewd acts on a child under 14 years of age (Pen. Code, § 288, subd. (a); all statutory references are to the Penal Code unless noted), one count of attempting to commit a lewd act (§§ 288, subd. (a); 664), three counts of exhibiting harmful matter to a minor (§ 288.2, subd. (a)), and possession of child pornography (§ 311.11, subd. (a)). Baca contends insufficient evidence exists to support his conviction for an attempted lewd act (count 14), the trial court should have stayed punishment (§ 654) for two counts of exhibiting harmful matter to a minor (counts 9 and 10), and his aggregate sentence of 51 years and four months to life in prison constitutes cruel and unusual punishment under the federal and state Constitutions. For the reasons expressed below, we affirm.

Two police officers riding in a marked patrol car heard several gunshots and, moments later, heard a report from dispatch that a “silver vehicle” was involved. Less than a minute later, the officers saw a silver car two blocks away from where the shots originated. After initiating an investigative stop, one officer gave chase to a passenger, who fled on foot, and the other officer found 29 oxycodone pills in a baggie in the center console. The driver, Albert Muhammad, Jr., was standing outside the patrol car when a bag containing 21 bindles of methamphetamine dropped to the ground between his feet.[1] After the court denied his motion to suppress, he pled no contest to one drug charge. On appeal, he challenges the court’s denial of his motion. We affirm.

At his juvenile court jurisdiction hearing, R.A. admitted, pursuant to a negotiated settlement, a felony and a misdemeanor in exchange for the dismissal of another felony.[1] At his disposition hearing, a different judge found him to be a ward of the juvenile court and ordered out-of-home placement for one year before probationary at-home placement with his mother. His request for a new disposition hearing before the judge who accepted his admission was denied. On appeal, he argues he is entitled to a remand for the hearing he was denied below. We agree.

On August 25, 2010, appellant Anthony Dewayne Cooper, Jr., was charged in an information with receiving stolen property (Pen. Code, § 496, subd. (a)).[1] The information also alleged four prior prison term enhancements (§ 667.5, subd. (b)). Cooper filed a suppression motion pursuant to section 1538.5. The trial court conducted a lengthy hearing on Cooper’s motion in late October and early November 2010. On November 4, 2010, the trial court denied Cooper’s suppression motion.
After the beginning of a jury trial, Cooper waived his constitutional rights pursuant to Boykin/Tahl[2] and pled no contest to the charge.[3] Cooper also admitted the special allegations. On February 1, 2011, the trial court suspended imposition of sentence, placed appellant on probation for three years, and ordered appellant to serve 253 days in jail with credit for time served.
On appeal, Cooper contends the trial court erred in denying his suppression motion. We disagree and affirm the trial court’s judgment.

A jury convicted defendant Robert James Illingworth of driving under the influence (Veh. Code, § 23152, subd. (a)—count 1) and driving with a blood-alcohol level of 0.08 percent or above (Veh. Code, § 23152, subd. (b)—count 2). The jury found not true as to count 2 that defendant drove with a blood-alcohol level of 0.20 percent or above. (Veh. Code, § 23578.) In a bifurcated proceeding, the trial court found that defendant had incurred two prior DUI convictions.

Defendant Financial Pacific Insurance Company (Financial Pacific) filed an anti-SLAPP motion, pursuant to Code of Civil Procedure section 425.16,[1] to strike plaintiff Don H. Lee’s complaint.[2] The trial court granted the motion, finding that the complaint arose from Financial Pacific’s protected petitioning activity and Lee did not have a probability of prevailing on the merits.
We affirm.

Defendant Donald Carter, charged with felony murder and the special circumstances of killing 80-year-old Sophia McAllister while burglarizing, robbing, and raping her, testified that he broke into her house to get the money he desperately needed to buy more rock cocaine. He admitted he intended to commit the three felonies, albeit in his drug induced, crazy state of mind, but he denied intending to kill her. He reverses his defense on appeal, now suggesting that the jury might have found that the three felonies were only incidental to his plan to murder Mrs. McAllister.
The distinction is, in fact, pivotal. Defendant asserts the trial court failed to instruct the jurors sua sponte that the prosecution had to prove that the murder was carried out to advance the commission of the burglary, robbery, and rape or, in other words, that they could not find the special instruction to be true if the commission of the three felonies was merely incidental to the commission of the murder. He offers a clever and legally sound assault on the instruction delivered by the court, an argument the Attorney General does not appear to understand or rebut. It is, however, a Pyrrhic victory; he wins on the law and loses on the facts. Because there is not significant evidence that he intended to murder Mrs. McAllister and the other felonies were merely incidental to his plan to murder, the trial court was not obligated to give the so-called Green instruction sua sponte. (People v. Green (1980) 27 Cal.3d 1, 59-62 (Green), superseded by statute on other grounds as stated in People v. Alcala (1984) 36 Cal.3d 604, 621-622 & fn. 8.) We affirm.

A jury convicted defendant John Anthony III of kidnapping for the purpose of oral copulation and sodomy, forcible oral copulation and sodomy, carjacking, first degree robbery, one count of second degree robbery (involving a purse), and making criminal threats. The jury was unable to reach a verdict as to a count of sexual penetration with a foreign object (count 4) and another count of second degree robbery (count 6—involving a cell phone). On the prosecutor’s motion, the trial court dismissed both of those counts in the interests of justice.[1] The jury also sustained enhancements to both sexual offenses that defendant had kidnapped the victim and substantially increased the risk of harm as a result of the movement. (Pen. Code, § 667.61, subd. (d)(2).)[2] The trial court found defendant had two prior serious felony convictions within the meaning of section 667, subdivision (d).
At issue on appeal is the manner in which the trial court fashioned defendant’s sentence. The court imposed consecutive sentences of 75 years to life each for the two sexual offenses (§§ 667, subd. (e)(2)(A)(i), 667.61, subd. (a)) and consecutive sentences of 25 years to life for each of the remaining offenses (§ 667, subd. (e)(2)(A)(ii)), except for a concurrent sentence for the second degree robbery conviction involving the victim’s purse at the outset of the carjacking. It also “dismissed” the kidnapping conviction (count 1) for “purpose[s] of sentencing” as “merged” in the kidnapping enhancements for the sexual offenses.[3] It granted conduct credits that were limited to 15 percent of defendant’s presentence custody credits. (§ 2933.1.) In response to a request from appellate counsel, the trial court awarded an additional day of actual custody and filed an amended abstract of judgment in May 2011.

J.J., the father in this juvenile dependency proceeding, seeks reversal of the juvenile court’s jurisdictional orders adjudging his five children dependents of the juvenile court. Father contends that substantial evidence does not support the court’s findings that he sexually abused his 14-year-old daughter I.J., and further contends that I.J.’s three brothers (12-year-old twins and 8-year-old D.J.) and 9-year-old sister were not at substantial risk of being sexually or otherwise abused by their father. We disagree and affirm the orders.