CA Unpub Decisions

Defendant appeals from three orders of the trial court correcting previous orders awarding credit for time defendant served in jail, plus credit under Penal Code section 4019[1] based on that time, against his three-year commitment to Patton State Hospital pursuant to Penal Code section 1368 et seq. We reject defendant’s contention that the former orders were erroneous and affirm them.

Defendant and appellant Angel Ray Negrete was convicted of commercial burglary and petty theft. (Pen. Code, §§ 459, 488.)[1] The trial court found true that defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b). Defendant was sentenced to a total term of six years in state prison, which included 60 days in county jail for the petty theft (count 1) to run concurrently with the base term for the burglary (count 2). Defendant also received a total of 136 days of presentence credit pursuant to section 4019—68 actual and 68 conduct.

A jury found defendant and appellant Darionne Steven Simpson guilty of two counts of attempted willful, deliberate, and premeditated murder (Pen. Code,[1] §§ 664, 187, subd. (a), counts 1 & 3); one count of shooting at an occupied vehicle (§ 246, count 2); one count of discharging a firearm in a grossly negligent manner (§ 246.3, count 4), a lesser included offense of shooting at an occupied vehicle; and one count of active participation in a criminal street gang (§ 186.22, subd. (a), count 5). The jury also found true that in the commission of count 1, defendant personally discharged a firearm. (§ 12022.53, subd. (c).)
Defendant was sentenced to a total determinate term of eight months, and a total indeterminate term of 14 years to life, plus 20 years, with credit for time served in state prison. On appeal, defendant contends: (1) his sentence of eight months on count 5 should have been stayed pursuant to section 654; and (2) the abstract of judgment should be corrected to reflect the sentence imposed by the trial court. We agree, and will modify the judgment.

Defendant Esteban Vicencio is serving 45 years to life in state prison after a jury convicted him of sexually abusing a 14-year-old girl at a public park and his 5-year-old grand-niece at the home they shared. Defendant argues the trial court erred when it ordered him to pay $5,000 in noneconomic damages to the victims for psychological harm under Penal Code section 1202.4, subdivision (f)(3)(F). As discussed below, the award was not transformed into a fine unauthorized by law just because the trial court used the word “fine” from the probation report. Neither does the trial court’s sensible decision to postpone determination of restitution for economic damages mean it did not intend to impose this amount for noneconomic damages.

On April 1, 2011, a jury found defendant and appellant Chamaine Victoria Daniel guilty of possession of methamphetamine for sale under Health and Safety Code section 11378 (count 1). On April 4, 2011, the trial court found true the allegation that defendant had suffered two prior convictions under Health and Safety Code sections 11378 and 11383, within the meaning of Health and Safety Code section 11370.2. On July 1, 2011, the trial court sentenced defendant to six years in prison. On appeal, defendant contends that the one-year sentence for the prior prison term must be stricken and requests that this court independently review the record of the trial court’s in camera proceeding on her motion to traverse the search warrant. The People concede the trial court’s sentencing error, and agree that we should review the trial court’s in camera review of the confidential search warrant. For the reasons set forth below, we shall strike the one-year prior prison sentence. In all other respects, the judgment will be affirmed.

On April 1, 2011, a jury found defendant and appellant Chamaine Victoria Daniel guilty of possession of methamphetamine for sale under Health and Safety Code section 11378 (count 1). On April 4, 2011, the trial court found true the allegation that defendant had suffered two prior convictions under Health and Safety Code sections 11378 and 11383, within the meaning of Health and Safety Code section 11370.2. On July 1, 2011, the trial court sentenced defendant to six years in prison. On appeal, defendant contends that the one-year sentence for the prior prison term must be stricken and requests that this court independently review the record of the trial court’s in camera proceeding on her motion to traverse the search warrant. The People concede the trial court’s sentencing error, and agree that we should review the trial court’s in camera review of the confidential search warrant. For the reasons set forth below, we shall strike the one-year prior prison sentence. In all other respects, the judgment will be affirmed.

Defendant, Oscar Gamboa, pled guilty to annoying a child (Pen. Code, § 647.6, subd. (a))[1] and petty theft with a prior (Pen. Code, §§ 484, subd. (a) & 666).[2] He was immediately paroled, having been credited on his prison sentence for the theft with presentence custody time. He appeals only his conviction for annoying a child. There is no certificate of probable cause in the record before this court.[3] (§ 1237.5.) Although appearing to challenge his conviction only on the basis of his assertion that the residency restriction of the lifetime sex offender registration requirement consequence of his plea to this offense can only be imposed if a jury finds facts supporting that requirement beyond a reasonable doubt, defendant actually makes a number of challenges to his plea, all of which we reject. We therefore affirm the judgment.

Defendant Steven Walter James appeals from his conviction of oral copulation of a child 10 years of age or younger (Pen. Code,[1] § 288.7, subd. (b), count 1) and sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b), count 2).)
Defendant contends the evidence was insufficient to support his conviction of count 1 and the trial court erred in failing to instruct the jury on the lesser included offense of attempted sexual penetration in count 2. We find no error affecting the judgment; however, we will order an amendment of the abstract of judgment to correct a clerical error.

Pursuant to a plea agreement, defendant and appellant Adam Paul Cary pled guilty to assault with intent to commit rape (Pen. Code, § 220),[1] and admitted that he had suffered one prior serious and violent felony conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). In return, defendant was sentenced to a total term of eight years in state prison with credit for time served. Defendant’s sole contention on appeal is that he should have been awarded 209 days of additional conduct credit for the time he spent in a state hospital after doctors found him competent to stand trial. The Attorney General agrees. We also agree and will modify the judgment.

The Riverside County District Attorney’s Office filed a Welfare and Institutions Code section 602 petition (the petition) alleging that defendant and appellant J.V. (minor) committed auto theft (Veh. Code, § 10851, subd. (a)), grand theft (Pen. Code, § 487), misdemeanor vandalism causing less than $400 in damages (Pen. Code, § 594, subd. (b)(2)), and theft of retail merchandise not exceeding $400 (Pen. Code, § 490.5). Minor admitted the truth of all of the allegations in the petition. The juvenile court granted him probation under the deferred entry of judgment (DEJ) program (Welf. & Inst. Code, §§ 790, 791, subd. (b)) for 36 months. One of his probation conditions required him to pay restitution to the victims.
Minor’s sole contention on appeal is that the juvenile court abused its discretion when it set the amount of victim restitution he owed at $14,962.59. We agree and remand the matter.

M.C. 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 (Sade C.) and Penson v. Ohio (1988) 488 U.S. 75, 88 (Penson), she asks this court to exercise its discretion to review the record for error.

S.T. 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 (Sade C.) and Penson v. Ohio (1988) 488 U.S. 75, 88 (Penson), she asks this court to exercise its discretion to review the record for error.

Henry C. appeals the orders entered at the six-month review hearing held under Welfare and Institutions Code section 366.21. 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 review under 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 Danny's request to review the record for error and to address his Anders issues. (Anders v. California (1967) 386 U.S. 738.)

S.G. (Mother) and Bernardo L. III, (Father), the parents of Bernardo L., appeal the order denying their Welfare and Institutions Code[1] section 388 petitions seeking further reunification services in this second dependency proceeding involving their son. Mother contends she met the statutory requirements of section 388. Father contends the juvenile court abused its discretion by denying his section 388 petition. Counsel for the minor has submitted a brief supporting Mother's and Father's contentions.