CA Unpub Decisions

In a negotiated disposition, defendant Arthur Ray Washington pleaded no contest to six counts of forcible lewd conduct on a child under 14 (Pen. Code, § 288, subd. (b)(1))[1] in exchange for a 44-year sentence and dismissal of numerous remaining counts. Before sentencing, he moved to withdraw his pleas (§ 1018), arguing that his trial counsel and the trial court had affirmatively misadvised him that he would have “no exposure whatsoever” to civil commitment as a sexually violent predator (SVP) as a consequence of his pleas. Had he known he could face SVP commitment, he asserted, he would not have pleaded no contest but would have instead insisted on proceeding to trial. The trial court denied defendant’s motion and imposed the agreed-upon prison term.
On appeal, defendant contends that the denial of his motion was an abuse of discretion. He claims the judgment must be reversed and the case remanded with an instruction to set aside his pleas because the record “clearly and convincingly establishes that [he] would have gone to trial rather than accept a plea bargained 44[-]year sentence had he known of the SVP exposure at the end of it.” We conclude that the trial court applied the wrong prejudice standard. We reverse the judgment and direct the court, on remand, to reconsider defendant’s motion under the proper standard.

On May 6, 2011, an information was filed in Kings County Superior Court, charging defendant Santos Arturo Martinez with driving under the influence of alcohol or drugs (DUI) (Veh. Code, § 23152, subd. (a); count 1), driving with a blood-alcohol content (BAC) of 0.08 percent or more (id., subd. (b); count 2), and driving with a suspended or revoked license (id., § 14601.2, subd. (a); count 3). As to counts 1 and 2, it was further alleged, pursuant to Vehicle Code section 23578, that defendant had a BAC of 0.15 percent or higher; and, pursuant to Vehicle Code sections 23550 and 23550.5, that he had suffered three prior DUI convictions within the preceding 10 years, making counts 1 and 2 felonies.

On April 18, 2011, defendant Arthur Ray Littlefield was charged in a consolidated amended complaint with possession of methamphetamine (Health & Saf. Code,[1] § 11377, subd. (a); count 1), possession of Vicodin (§ 11350, subd. (a); count 2), driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a); count 3), possession of 28.5 grams or less of marijuana (§ 11357, subd. (b); count 4), possession of marijuana for sale (§ 11359; count 5), and possession of concentrated cannabis (§ 11357, subd. (a); count 6). It was further alleged defendant had served two prior prison terms (Pen. Code, § 667.5, subd. (b)) and that, when he committed counts 5 and 6, he was released from custody on bail or own recognizance (id., § 12022.1).

Appellant Gilbert Jimenez appeals from a judgment of conviction of multiple counts of resisting an executive officer and assault arising from a police pursuit of his vehicle through metropolitan Fresno. He challenges the sufficiency of the evidence underlying certain charged counts, alleges sentencing error, and requests this court to independently examine the record of in camera hearings relating to his motions for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

A jury adjudged defendant to be a Mentally Disordered Offender and he was recommitted for involuntary treatment at Atascadero Hospital. (Pen. Code, § 2970.)[1] Defendant appeals, claiming there is insufficient evidence to support one aspect of the jury’s adjudication, i.e., that he represents a substantial danger of physical harm due to his mental illness. We reject his contention and affirm.

Plaintiff-in-intervention PFI Realty III, LP (PFI), the lender, acquired the subject real property collateral through nonjudicial foreclosure. The acquisition occurred after the property was damaged by fires caused by defendants and defendants-in-intervention San Diego Gas & Electric Company; Cox, Inc.; and Sempra Energy (Defendants). The trial court sustained without leave to amend a general demurrer by plaintiff and defendant-in-intervention Paul Thoryk (Thoryk), grounded on PFI's lack of standing. PFI appeals the subsequent judgment of dismissal. PFI contends the full credit bid rule does not prevent it from recovering from Defendants damages exceeding PFI's security interest in the property. We affirm.

A jury convicted Robert Franklin of one count of felony assault by force likely to produce great bodily injury (Pen. Code, § 245, former subd. (a)(1), now subd. (a)(4), as amended by Stats. 2011, ch. 183, § 1, eff. Jan. 1, 2012). Franklin appeals, arguing the evidence was insufficient to support the great bodily injury element because the assault involved only fists and the victim, despite his fragility, suffered minimal injury. We conclude there is no merit to this contention and affirm the judgment.

A jury convicted defendant Delano Cagnolatti of eight counts of aggravated sexual assault on a child under the age of 14 (Pen. Code, § 269, subd. (a)),[1] two counts of providing or transporting a child under the age of 16 for a lewd act (§ 266j), and one count of being a sex offender and not registering an address change (§ 290.013, count 11). The information charged a count of not registering under section 290.013 (count 12). However, during trial, the court granted a prosecution motion to dismiss count 12. In a bifurcated proceeding, the court found true the allegations that Cagnolatti had suffered numerous prior strike convictions (§§ 667, subds. (c) & (e)(2)(A); 1170.12, subd. (c)(2)), one of which was a conviction for forcible oral copulation within the meaning of section 667.71. The court sentenced Cagnolatti to a total indeterminate prison term of 485 years to life.
On appeal, Cagnolatti argues the court abused its discretion by denying his motion to sever trial on counts 11 and 12 from the remaining counts. He also challenges the sentence imposed on count 11.

A jury convicted defendant Jeremy Stewart of two counts of residential burglary. (Pen. Code, §§ 459/460.)[1] In a bifurcated proceeding, Stewart admitted the allegations he had two prior serious felony convictions (§ 667, subd. (a)(1)), two prior strike convictions (§ 667, subds. (b)-(i)), and three prison priors (§ 667.5, subd. (b)). The court sentenced Stewart to a total term of 70 years to life.
Stewart alleges (1) the court erroneously admitted a statement written by him; (2) he was deprived of effective assistance of counsel prior to and during trial; (3) there were numerous instructional errors; and (4) the court erred when it denied his motion to dismiss the prior strike conviction allegations under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

A modification decision.

A jury convicted Kym Laura Cano of second degree murder (Pen. Code,[1] § 187, subd. (a), count 1) of her husband, Francisco Cano. The jury also found true that Cano personally used a handgun (§ 12022.53, subd. (b)), personally and intentionally discharged a handgun (§ 12022.53, subd. (c)), and personally and intentionally discharged a handgun, which proximately caused great bodily injury and death (§ 12022.53,
subd. (d)). The court sentenced Cano to prison for 40 years to life.
Cano appeals, contending the court committed reversible error in failing to sua sponte instruct the jury, under People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia), that an unintentional killing committed without malice during the commission of an inherently dangerous felony constitutes voluntary manslaughter. Assuming Cano's interpretation of Garcia is correct, we nevertheless conclude such an instruction was not warranted on the record before us and affirm.

Presumed father Thomas D. III appeals the juvenile court’s order terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)[1] He contends the order must be reversed because of noncompliance with the Indian Child Welfare Act. (ICWA; 25 U.S.C. § 1901 et seq.) We find any error harmless and affirm.

Defendant Paul Robert Ortega pleaded guilty to assault with a deadly weapon while confined in state prison (count one; Pen. Code, § 4501)[1] and possessing a sharp instrument while confined in state prison (count two; § 4502, subd. (a)), and admitted four prior strikes (§§ 667, subds. (b)-(i), 1170.12).[2] The trial court denied defendant’s request to strike three strikes (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) and sentenced defendant to a term of 25 years to life, consecutive to his current term.[3]
Defendant contends the trial court abused its discretion by denying his request for Romero relief because (1) the severity of his overall sentence warranted striking one or more strikes, and (2) his strikes resulted from a single act or indivisible course of conduct. We affirm.

On October 28, 2011, defendant Henry Leroy Harmon, Sr., was found in possession of 17 .40-caliber rounds. He had a 2004 conviction for possession of a destructive device (former Pen. Code, § 12303.3)[1] and a 1981 conviction for assault with a deadly weapon (§ 245, former subd. (b)).
Defendant was charged with possession of ammunition by a convicted felon (former § 12316, subd. (b)(1)) along with allegations that he suffered a prior prison term (§ 667.5), that his prior conviction for possession of a destructive device was a serious or violent felony conviction within the meaning of the “three strikes” law (§ 1170.12), and that his prior assault with a deadly weapon conviction was a serious or violent felony subjecting him to a state prison term (§ 1170, subds. (f), (h)(3)). Defendant entered into a negotiated plea in which he pleaded no contest to possession of ammunition and admitted the prior prison term and state prison allegations, with a stipulated sentence of four years in state prison and dismissal of the strike allegation. In accordance with the plea, the trial court sentenced defendant to a four-year state prison term, imposed various fines and fees, and awarded 37 days of presentence credit (19 actual and 18 custody).
Defendant appeals. He did not obtain a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief asserting that he was coerced into the plea by trial counsel, the ammunition in his possession was obtained pursuant to an illegal search, and his 1981 assault conviction might not be a strike.