CA Unpub Decisions

Anthony Penton is serving a term of 54 years 8 months in prison on a 2001 conviction for robbery, attempted robbery, false imprisonment by violence, menace, and fraud or deceit with enhancements for personal use of a weapon and prior convictions. In 2002, we affirmed the judgment on appeal with a minor modification in the sentence (People v. Jones (Oct. 2, 2002, D03825) [nonpub. opn.]).
On January 13, 2012, Penton submitted a request for the superior court to appoint counsel to prepare a postconviction motion for DNA testing. Consistent with Penal Code section 1405, subdivision (b)(1),[1] Penton declared that he was not the perpetrator of the crime, DNA testing is relevant to his assertion of innocence, no attorney had been appointed under this provision in the past, and he is indigent. On February 3, while acknowledging that Penton had complied with the requirements of section 1405, subdivision (b)(1), the superior court denied the request without prejudice for the failure to comply with other prongs of the statute, including the requirement to explain why the identity of the perpetrator was or should have been a significant issue in the case. Penton sought reconsideration on February 14 but never received a response.

Roberta L. seeks review of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26.[1] She contends the court erred when it found that
there was no substantial probability that her children would be returned to her care by the 18-month review hearing and terminated reunification services at the 12-month review hearing. We deny the petition.

John Manuel Diego pleaded guilty to burglary of an inhabited dwelling following his arrest by the San Diego County Sheriff's Department. Diego also admitted to a serious felony prior and prison prior. The court sentenced him to prison for two years for the burglary, with an additional five years for the serious felony prior. Among various fines and fees, the court imposed a $154 booking fee. According to the October 11, 2011 minutes (minutes), Diego was subject to the fee under Government Code section 29550.1. (All subsequent statutory references are to the Government Code.) On the minutes, next to a handwritten entry of "154," the clerk checked the box marked "BOOKING FEE [GC29550.1]." Diego did not object to the imposition of the booking fee and now appeals the order.
Diego contends: (1) he did not forfeit his claim by not raising an objection; (2) the fee is "unauthorized" because the court cited the wrong code section; and (3) the court impermissibly imposed the fee absent evidence of his ability to pay. We conclude that Diego forfeited his claim by not objecting, and the court was not required to assess ability to pay and he is obligated to pay the booking cost.

In this marital dissolution proceeding, Ree Tarr appeals from a judgment following a trial on reserved issues, including whether Bryan Tarr breached his fiduciary duty to her by spending her inheritance without her knowledge and consent. Ree contends the trial court erred by denying her request to include within its statement of decision a finding regarding whether her medical and physical condition impaired her ability to monitor her inheritance. We reject Ree's argument and affirm the judgment.

David L. Bradwell (Husband) appeals an order denying his motion to set aside or modify a prior child and spousal support order in favor of Tabitha E. Bradwell (Wife). On appeal, he apparently contends the trial court erred by denying that motion because the prior order was based on a clerical error.

A jury convicted Robert Villalobos of willful, deliberate, and premeditated murder in the first degree of George Hernandez in violation of Penal Code section 187, subdivision (a) (hereafter section 187(a)) (undesignated statutory references will be to the Penal Code). The jury found true an enhancement allegation that Villalobos personally used a deadly and dangerous weapon (a knife), causing death in the commission of the crime within the meaning of sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). The court sentenced Villalobos to an indeterminate prison term of 25 years to life for the murder, plus a consecutive one-year term for the weapon use enhancement, for a total indeterminate term of 26 years to life.
Villalobos appeals, contending (1) his murder conviction must be reversed because the court prejudicially erred by excluding the testimony of a witness he claims was an expert in knives and human stab wounds, and thereby violated his due process right to present a defense that someone else stabbed the victim; and (2) if this court does not reverse his murder conviction based on the exclusion of that testimony, this court should modify the judgment "to reflect a conviction of second degree murder" because there is insufficient evidence to support the jury's findings of premeditation and deliberation. We affirm the judgment.

Appointed counsel for defendant, Darren Lavon Campbell, asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error and no concerns regarding presentence credits. We affirm the judgment.

Defendant Nelson Frank Hume entered a negotiated plea of no contest pursuant to People v. West (1970) 3 Cal.3d 595 to assault with a firearm and to the use of a shotgun in exchange for dismissal of other counts, a stipulated eight-year prison sentence with execution suspended, and a grant of formal probation with no further custodial time. The court granted probation for a term of five years subject to certain terms and conditions including an order that he pay $1,000 in attorney fees and stay away from the victim and six other people.

Following a jury finding that defendant Timothy Ladry Jasper currently posed a substantial danger to others as a result of a mental disorder, the trial court extended defendant’s mental health commitment for two years.
On appeal, defendant contends: (1) the testimony of the People’s expert violated the confrontation clause and could not be used for the truth of the matter; (2) there was no evidence defendant had a qualifying mental disorder or was unable to control his dangerous behavior; (3) the court erred in allowing the jury to learn that its verdict would decide whether defendant would be released or continue to be confined; and (4) the court erred in supplementing (after closing arguments) the instructions it had previously given. Disagreeing with these contentions, we affirm.

A jury found defendant Arcadio Kyle Guajardo guilty of assault with a deadly weapon and found that he personally used a deadly and dangerous weapon in the commission of the offense. The trial court found that he had three prior serious felony convictions. Defendant was sentenced to state prison for 25 years to life and was awarded 317 days’ custody credit and 158 days’ conduct credit.[1]
On appeal, defendant contends certain self-defense instructions were improper: (1) CALCRIM No. 3471 did not apply to this case and its use undermined his defense, (2) CALCRIM No. 3472 lacked evidentiary support and its use was prejudicial, and (3) the cumulative effect of the two errors denied him a fair trial. We affirm.

Defendant, Nicholas Dominguez, pled no contest to being a felon in possession of a firearm and street terrorism. Sentenced to two years and eight months in state prison, defendant appeals claiming the magistrate erred in denying his motion to suppress. Finding no error, we affirm.

Defendant appeals from the sentence imposed following his plea of no contest to possession of marijuana in prison and admissions of a prior strike conviction and having served two prior prison terms. Defendant contends the trial court abused its discretion in denying his Romero[1] motion. We affirm.

On January 28, 2010, based upon defendant William Andrew Henry’s guilty plea to one count of possession of a controlled substance, the Butte County Superior Court placed him on Proposition 36 probation. Defendant failed the Proposition 36 program and on January 6, 2011, was placed in a drug court program for five years. The court, over defendant’s objection, determined the cost of defendant’s supervised probation would be $164 per month.
Defendant appeals, contending the $164 per month probation supervision fee must be stricken because (1) there was no determination of his ability to pay that fee, and (2) the court lacked authority to order probation supervision fees based upon a future determination of his ability to pay those fees. The People respond that the probation supervision fee was properly imposed. We reject defendant’s positions as being premature.

L.M., the mother of the two children, appeals from a Welfare and Institutions Code section 366.26 parental rights termination order. The mother contends the parental rights termination order must be reversed because of noncompliance with the Indian Child Welfare Act and related California provisions. The parties have stipulated to a limited reversal of the parental rights termination order to allow compliance with the Indian Child Welfare Act and related California. We accept the parties’ stipulation. The parties agree there was noncompliance with the Indian Child Welfare Act and related California provisions. We concur in their assessment in this regard. Further, the parties agree the parental rights termination order must be reversed and remanded to permit proof of compliance with the Indian Child Welfare Act and related California provisions.