CA Unpub Decisions

Defendant Michael Jason Moore was evading police in the vehicle he had stolen when he killed Manual Padilla in a head-on collision. In June 2009, pursuant to a negotiated disposition, defendant was sentenced to state prison for eight years and four months after he entered pleas of no contest to vehicular manslaughter and four other charges. On October 5, 2009, defendant was ordered to pay restitution of $33,600 to Nanette Padilla, the victim’s wife.
On April 22, 2011, the prosecutor provided defendant with a “Notice To Defendant Regarding Restitution—Amended,” together with a “proposed Order for Restitution” that would increase the sum owed to Ms. Padilla to $75,710. Defendant was provided counsel and transferred from prison to attend any proceedings generated by the new restitution request. The reason for revisiting the issue of restitution was that the Victim Compensation and Government Claims Board had paid $70,000 to Ms. Padilla.
After conducting several hearings on the prosecution’s application, the trial court made “Order For Restitution” directing defendant to pay $45,000 to the Victim Compensation and Government Claims Board, this being the amount of the victim’s lost wages paid to his widow and not covered by the original restitution order.

Lamar C. appeals from exit orders made by the juvenile court upon termination of dependency jurisdiction, pursuant to Welfare and Institutions Code section 362.4.[1] He contends: (1) the court erred in denying him joint legal custody; (2) the court erred in denying him visitation; and (3) he was prejudiced because the juvenile court judge believed she could modify the visitation order after termination of dependency jurisdiction. We will affirm the order.

Defendant was convicted following a jury trial of stalking (Pen. Code, § 646.9, subd. (a)),[1] with a prior conviction of stalking and making a criminal threat (Pen. Code, § 422). He was sentenced to five years in state prison, with a total of 455 days of presentence credit. In this appeal he claims that the trial court erred by denying his motion for substitution of counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and improperly imposed a one-year concurrent term for a prior prison term. He also challenges the trial court’s award of conduct credits. We conclude that the trial court did not conduct a deficient Marsden inquiry or erroneously deny the motion for substitution of counsel. We find that the judgment must be modified by striking the sentence for a prior prison term that was not found true by the jury, and increasing defendant’s presentence credits by 14 days served in Napa State Hospital after he was found competent to stand trial. In all other respects we affirm the judgment.

Barbara Kahn appeals from the judgment dissolving her marriage to Melvin Kahn. Barbara argues that the court erroneously: (1) failed to apportion to her interests in Melvin’s separate properties based on community services rendered to those properties; (2) denied her reimbursement for community property payments made for the benefit of his separate properties; and (3) granted him reimbursement for his equity in a separate property that was transmuted to community property during the marriage. Her other principal contention is that the judge should have been disqualified for bias. Her arguments lack merit and we affirm the judgment.

After a court trial, the court convicted defendant Roberto Aponte of inflicting corporal injury on his spouse and further found that he personally inflicted great bodily injury and had a prior serious felony conviction. (Pen. Code, §§ 273.5, subd. (a), 12022.7, subd. (e), 1170.12, subd. (c)(1), 459.)[1] Under the parties’ negotiated agreement, the court sentenced him to four years in prison. It gave him 623 days of presentence custody credit and limited his presentence conduct credit to 15 percent of custody credit, giving him 93 days, for total presentence credit of 716 days. Defendant appealed from the judgment, claiming that counsel rendered ineffective assistance and that the court erred in applying the 15 percent credit limitation (H035701). Defendant reiterated his claim for additional credit in a post-judgment motion for additional credit, which the court denied. Defendant also appealed from the denial of that motion (H036822).[2]
In this petition for a writ of habeas corpus, defendant reiterates the claim of ineffective assistance raised on appeal from the judgment and adds several more claims. In particular, defendant complains that counsel (1) failed to consult a medical expert concerning the combined effect of drugs and alcohol on memory; (2) failed to inform the court that the victim had given false testimony; (3) failed to present the documentation of the victim’s medical history in a coherent way; (4) lost the chance to use the victim’s medical records to impeach her; (5) failed to ask the prosecution’s medical expert factually appropriate questions; and (6) failed to request a limiting instruction concerning the use of hearsay.
We requested an informal response from the Attorney General. (Cal. Rules of Court, rule 8.385(b) &(c); see People v. Romero (1994) 8 Cal.4th 728, 741-742.)
We conclude that defendant fails to make a prima facie showing sufficient to warrant habeas relief due to ineffective assistance and deny the petition.

Defendant Claudio Lorenzo Valdovinos pleaded no contest to two felony offenses, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and removing or taking an officer’s weapon other than a firearm (Pen. Code, § 148, subd. (b)),[1] and misdemeanor resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1)). He admitted the allegations that he had one prior violent or serious felony within the meaning of the “Three Strikes” law (§§ 667, subds. (b) – (i), 1170.12) and had served a prison prior term (§ 667.5, subd. (b)). The trial court sentenced defendant to a total term of four years in the state prison.
On appeal, defendant contends that the trial court erred in (1) denying his motion to suppress evidence under section 1538.5; (2) failing to stay the sentence on the misdemeanor conviction pursuant to section 654; and (3) failing to award conduct credit under the version of section 4019 operative on October 1, 2011.
For reasons that we will explain, we find no merit in defendant’s contentions and we will therefore affirm the judgment.

After a court trial, the court convicted defendant Roberto Aponte of inflicting corporal injury on his spouse and further found that he caused great bodily injury and had a prior serious felony conviction. (Pen. Code, §§ 273.5, subd. (a), 12022.7, subd. (e), 1170.12, subd. (c)(1), 459.)[1] Under the parties’ negotiated agreement, the court sentenced him to four years in prison. It gave him 623 days of presentence custody credit and, under section 2933.1, subdivision (c), limited his presentence conduct credit to 15 percent of custody credit, giving him 93 days, for total presentence credit of 716 days. On appeal from the judgment, defendant claims defense counsel rendered ineffective assistance. He also claims the court erred in applying the 15 percent credit limitation.[2]
We affirm the judgment.

A jury convicted Moses Obregon of conspiracy to commit robbery, robbery, felony false imprisonment and unlawful taking or driving of a vehicle. The court imposed a three-year prison term, consisting of the upper term for robbery plus a concurrent three-year term for false imprisonment. The court stayed sentence on the conspiracy and vehicle theft convictions under Penal Code section 654.[1]
Obregon claims the trial court erred by failing to strike the jury panel after a prospective juror talked to the prosecutor, admitting text messages between the coconspirators, and imposing sentence for false imprisonment. He also challenges his conviction for unlawful driving or taking of a vehicle, arguing the car was just one of the items taken during the robbery. We reject each contention and affirm the judgment.

DNA evidence, vocal recognition, and eyewitness identification all showed appellant Eduardo Rios Figueroa to be one of at least three (maybe four) men who invaded a Laguna Niguel apartment early one morning, threatened its occupants, robbed them of their valuables, and tried to pin the crime on a rival gang by declaring they were from that gang, there for the purpose of “taxing” the occupants. Figueroa was subsequently convicted of four counts of first degree robbery, one count of residential burglary, and one count of street terrorism. He was sentenced to 35 years to life in prison.

After a jury found defendant John David Carlin guilty of one count of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a), the court suspended imposition of sentence and placed him on probation, including 365 days in jail. The basis of defendant’s appeal is prosecutorial misconduct based on four statements made in closing argument. He argues the court erred by failing to admonish the jury and denying motions for mistrial and new trial. We find no error and affirm.

A jury convicted defendant Jorge Pacheco Hernandez of sexual penetration of a child under age 10 (Pen. Code, § 288.7, subd. (b)) and committing a lewd act on a child under age 14 (§ 288, subd. (a)) with substantial sexual contact (§ 1203.066, subd. (a)(8)). Hernandez contends the trial court prejudicially erred by admitting the testifying child victim’s out of court statements to a police officer (Evid. Code, §§ 1235, 1237; all statutory references are to the Evidence Code, unless otherwise noted) and a social worker (§ 1360). For the reasons expressed below, we affirm.

While appellant Jesus Knox was incarcerated in the Substance Abuse and Treatment Facility at the state prison in Corcoran, California, a nurse delivering medications to the inmates kicked appellant’s medication under the cell door. The event occurred on April 22, 2009. Nearly one year later, appellant submitted a letter and proposed tort claim[1] regarding the incident to the Victim Compensation and Government Claims Board (the Board), requesting leave to file a late claim against, among others, respondent California Department of Corrections and Rehabilitation. The Board rejected appellant’s claim as untimely but informed him that he could file a petition for relief in the superior court under Government Code section 946.6.[2] Appellant did so, arguing in his petition that relief from the six-month claim presentation requirement should be granted because during the relevant time period he was ignorant of the law and mentally and physically incapacitated. The trial court found that appellant did not adequately establish the asserted grounds for relief under section 946.6 and the petition was accordingly denied. A subsequent motion for reconsideration was likewise denied. Appellant’s appeal followed. We conclude the trial court did not abuse its discretion in denying relief and we accordingly affirm.

It is ordered that the opinion filed herein on July 5, 2012, be modified as follows:
1. On page 2, the first full paragraph, last two sentences, beginning “Hoffman now raises” are deleted and the following sentences inserted in their place:
Hoffman now raises claims of trial error and insufficiency of the evidence, while both challenge the propriety of their sentences. We affirm the convictions, but vacate both sentences and remand the matters for new hearings under section 190.5 and for resentencing.
2. Section V of the Discussion, beginning on page 41 of the original opinion, is deleted in its entirety and replaced with the following:

Mother argues the court erred in denying her Welfare and Institutions Code section 388 petition.[1] This case involves twin boys, born in August 2008, and a third boy, I.M., born in July 2010. R.M., an older half-sister, has the same father as the three boys but not the same mother. Father and R.M. are not parties to the appeal.
We affirm the order of the juvenile dependency court.