CA Unpub Decisions
California Unpublished Decisions
Defendant and appellant Tymir Ibn Abdullah was charged by felony complaint with four counts of second degree commercial burglary. (Pen. Code, § 459, counts 1-4.)[1] The complaint also alleged that he had one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and had served five prior prison terms, within the meaning of section 667.5, subdivision (b). Pursuant to a plea agreement, defendant pled guilty to count 1 and admitted the prior strike conviction, in exchange for a four-year state prison term and the dismissal of the remaining counts and allegations. The court sentenced him to four years in prison and awarded a total of 19 days of presentence custody credits.
Defendant filed a timely notice of appeal, based on the sentence or other matters occurring after the plea. He also challenged the validity of his plea and requested a certificate of probable cause, which the trial court denied. Defendant subsequently requested the court to appoint a new attorney to prepare a motion to withdraw his guilty plea. The court informed defendant that it was without jurisdiction to appoint new counsel since he had already been sentenced to state prison. We affirm. |
Defendant Richard Scott Themins engaged in domestic violence against his girlfriend during their tumultuous relationship. A jury convicted defendant of eight offenses arising from two incidents.
For the events occurring on December 14, 2009, defendant was convicted of four counts: witness dissuasion (§ 136.1, subd. (b)(1)); unlawfully taking a vehicle (Veh. Code, § 10851; petty theft (§ 484, subd. (a)); and misdemeanor battery (§ 243, subd. (e)(1).) For the events occurring on July 27, 2010, defendant was convicted of four additional counts: witness dissuasion (§ 136.1, subd. (c)(1); false imprisonment (§ 236); misdemeanor battery (§ 243, subd. (e)(1)); and misdemeanor violation of a protective order (§ 166, subd. (c)(1).) Defendant was also subject to enhancements under section 667.5, subdivision (b), for committing counts 5 and 6 while charges were pending on counts 1 through 4, and under section 12022.1 for having served a prior prison term on embezzlement and not remaining free from custody for a five-year period. |
Defendant Lloyd Edward Smith appeals from judgment entered following jury convictions for driving under the influence (DUI) of alcohol (Veh. Code, § 23152, subd. (a)[1]; count 1), driving with a blood alcohol concentration of .08 percent or more (§ 23152, subd. (b); count 2), and driving on a suspended license (§ 14601.1, subd. (a); count 3). The jury also found true the allegation that defendant’s blood alcohol concentration was 0.15 percent or more (§ 23578). Defendant admitted he suffered a prison prior (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to three years in prison, including two years for count 1, and one year for the prison prior enhancement. The court imposed a concurrent, stayed two-year term on count 2, and imposed a five-day jail term for count 3, which the trial court deemed served.
Defendant contends there was insufficient evidence to support his conviction for driving with a suspended license (count 3). He also argues the trial court abused its discretion in admitting evidence of a prior DUI. We reverse defendant’s conviction on count 3, on the ground defendant’s license was suspended based on a DUI conviction, and a conviction based on such facts is excluded under section 14601.1. We further conclude allowing evidence of defendant’s prior DUI does not constitute prejudicial error. The judgment is reversed as to count 3 and affirmed in all other respects. |
Defendant and appellant Gabriel Cabrera Lopez (defendant) appeals after a jury convicted him of multiple sex crimes involving two victims; he received a sentence of 90 years to life. Defendant claims ex post facto protections barred both his “One Strike†law sentences on four counts of forcible lewd acts on a child (Pen. Code, § 288, subd. (b))[1] and his very conviction for aggravated sexual assault of a child (§ 269). This is because, he argues, the jury could not have concluded beyond a reasonable doubt that he committed the offenses after the date the relevant statutes became effective—November 30, 1994. The People concede and, we agree, that two of the four forcible lewd act counts should be vacated and the matter remanded for resentencing on those counts because the evidence did not establish beyond a reasonable doubt that appellant committed these offenses on or after November 30, 1994. However, we conclude that an additional count of forcible lewd acts should also be remanded for resentencing, for the same reason. We affirm the convictions, and sentences on the remaining counts, including the conviction for aggravated sexual assault of a child.
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Defendant Angel Louis Paez (defendant) appeals as error the trial court’s decision not to stay the prison sentences for two of his three convictions for active gang participation. (Pen. Code § 186.22, subd. (a).)[1] In light of the California Supreme Court’s recent decision in People v. Mesa, we will affirm the judgment but modify the sentence to stay the two terms imposed for gang participation.
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Donald L. contends the juvenile court erred when it (1) found that it would be detrimental to return his daughter, Dana L., to his physical custody; (2) returned Dana to the physical custody of her mother, Brenda L.; (3) denied Donald's request for overnight visitation with Dana; and (4) required Donald to submit to random alcohol testing. We affirm the findings and orders.
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Ronald A. Mayo is the husband of conservatee Leslie A. Mayo. Leslie's conservators are her children from an earlier marriage, Donald Preston Murray and Lee Brooke Murray Roy (together the Conservators). (Throughout this opinion, we refer to these individuals by their first names as a matter of simplicity and clarity.) Ronald appeals two minute orders issued by the probate court in this conservatorship proceeding. We conclude that the orders are not appealable and dismiss the appeal.
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In case No. SCE311038 Claudia Coronado was charged with one count of commercial burglary (Pen. Code, § 459; count 1)[1] and one count of petty theft (§§ 484 & 490.5; count 2). Two prison priors were alleged within the meaning of sections 667.5, subdivision (b) and 668, and one strike prior was alleged within the meaning of sections 667, subdivisions (b)-(i), 1170.12 and 668.
In case No. SCE307085, Coronado was charged with one count of transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 1) and one count of possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 2). Two prison priors were alleged within the meaning of sections 667.5, subdivision (b) and 668, and one strike prior was alleged within the meaning of sections 667, subdivisions (b)-(i), 1170.12 and 668. In case No. SCE11038 Coronado pleaded guilty to the burglary count and admitted the strike prior. In case No. SCE307085, she pleaded guilty to the possession for sale count and admitted the strike prior. In exchange for those pleas, it was agreed that Coronado would receive a stipulated four-year state prison sentence composed of 32 months (the midterm of 16 months doubled) for case No. SCE11038 consecutive to a 16-month term for case No. SCE307085 (one-third the midterm of eight months doubled). It was stipulated that this prison term would be imposed if Coronado was deemed not suitable for the SB618 Prisoner Reentry Program. If deemed unsuitable for this program, she would not be allowed to withdraw her plea. |
This is the second appeal in this case. In Leader v. Cords (2010) 182 Cal.App.4th 1588 (Leader I), we reversed a probate court order to the extent it denied trust beneficiaries attorney fees under Probate Code section 17211, subdivision (b),[1] incurred in petitioning for an order requiring the trustee to make a final distribution. We specified that on remand the court was to conduct further proceedings on the factual issue of whether the trustee acted in "bad faith," a component of the test for a fee award under the statute. (Leader I, supra, at p. 1591.)
In this appeal, we must decide whether the probate court erred on remand by denying the trustee's request to present new evidence on the issue of bad faith, or his subjective state of mind in delaying the final distribution. We find error. Under well established law, an unqualified reversal, or unqualified partial reversal, places the matter at large for retrial and the parties are free to present any competent evidence, including new or additional evidence, in support of or against the plaintiffs' claims. We reverse the judgment with directions. |
Plaintiff and appellant Donald L. Gamache, as executor representing the estate of his deceased mother Catherine Gamache (Appellant; sometimes Mother), appeals a judgment dismissing all the breach of fiduciary duty and related claims that she brought against defendant Amy Rypins (Respondent), a licensed attorney who had performed legal services for Mother, as arranged by one of her adult daughters, fellow defendant Diane Steuer (Steuer; not a party to this appeal). The complaint was dismissed as a terminating discovery sanction, based on findings of Appellant's noncompliance with discovery orders. (Code Civ. Proc.,[1] § 2023.010 et seq.)
In the complaint filed in May 2009, Appellant (then age 87 and living with her other daughter, Lois Gabriel [not a party to this appeal]) alleged that Steuer had committed elder abuse of various physical and financial types. (Welf. & Inst. Code, § 15610.27.) As against Respondent, Appellant claimed that the estate planning legal services she performed for her in 2003 and later, at the request of Steuer, were contrary to Appellant's actual wishes and amounted to Respondent's breaches of fiduciary duties and commission of fraudulent and tortious conduct. |
Defendant Anthony Miller appeals from a judgment entered after a jury convicted him of two counts of first degree murder. On appeal, Miller contends (1) that the trial court should not have admitted inculpatory statements that Miller made to police detectives at his home and at the police station, on the grounds that he was not given Miranda[1] warnings prior to or during the interrogations, and that the statements were involuntary because they were induced by deceptive and coercive police tactics; (2) that the trial court erred in instructing the jury on the defense of duress by improperly modifying the standard CALCRIM instruction in a manner that shifted to the defense the burden of proving duress; and (3) that the trial court erred in imposing consecutive life terms because the court was acting under the misimpression that it did not have the discretion to impose concurrent life terms. We conclude that none of Miller's contentions has merit. We therefore affirm the judgment of the trial court.
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Can a vehicle that does not move significantly forward or backward, despite repeated efforts to make it do so, constitute a deadly weapon for purposes of assault? We say no. While a jury may make reasonable inferences based on circumstantial evidence, mere speculation that a lurching pickup truck might overcome its apparent disability, break free, and injure someone does not constitute substantial evidence of the present ability to commit a violent injury, as required to prove assault.
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Joann R. (Mother) appeals from the October 25, 2011 juvenile court order terminating her parental rights over minor M.R., born in August 2007, pursuant to Welfare and Institutions Code section 366.26.[1] Mother contends that the court’s determination that the relative caregiver exception to termination of parental rights does not apply is not supported by substantial evidence. Mother also contends that the court abused its discretion in determining that the parental relationship exception to termination of parental rights does not apply. M.R.’s father, David U. (Father), is not a party to this appeal. We disagree with Mother’s contentions. We determine that substantial evidence supported the court’s conclusion that the relative caregiver exception did not apply and that the court did not abuse its discretion in declining to apply the parental relationship exception. We affirm the order of the court.
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