CA Unpub Decisions

In 2002, defendant Barry Marlon Summers was found guilty on three counts of committing a lewd or lascivious act on a child under 14 years. (Pen. Code, § 288, subd. (a).)
On count 1, pursuant to the “one strike” law (Pen. Code, § 667.61), defendant was sentenced to an indeterminate term of 15 years to life. On count 3, he was sentenced to eight years (the upper term). On count 2, he was sentenced to two years (one-third the midterm). Thus, the total sentence was 25 years to life. In calculating defendant’s presentence conduct credits, the trial court applied the 15 percent limitation of Penal Code section 2933.1.
Defendant appealed. In 2004, we affirmed the judgment. (People v. Summers (Feb. 4, 2004, E032940) [nonpub. opn.].)
In January 2011, the prosecution and defendant stipulated to reduce the sentence on count 3 to six years (the midterm), based on Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856]. Thus, the total sentence became 23 years to life.
In March 2011, defendant filed a motion to “correct” the sentence. In it, he argued, among other things, that the trial court had violated ex post facto principles by applying Penal Code section 2933.1 to offenses committed before its enactment. The trial court denied the motion without a hearing. Defendant appealed.
Defendant’s sole appellate contention is that the trial court erred by applying Penal Code section 2933.1 to all three counts, because two of the counts were committed before Penal Code section 2933.1 went into effect. We disagree. Hence, we will affirm.

During an argument with a neighbor, defendant Anthony Allen Vargas shot the neighbor in the forehead. The victim survived but suffered brain damage. A jury found defendant guilty of:
Count 1: Unpremeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), with an enhancement for personally and intentionally discharging a firearm and causing great bodily injury (Pen. Code, § 12022.53, subd. (d)).
Count 2: Assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with enhancements for personally using a firearm (Pen. Code, § 12022.5, subd. (a)) and for personally inflicting great bodily injury (Pen. Code, § 12022.7, subd. (a)).
Count 3: Unlawful possession of a firearm (Pen. Code, § 12021, subd. (a)(1)).
As a result, defendant was sentenced to a total of 34 years to life in prison (a determinate term of 9 years, plus an indeterminate term of 25 years to life), along with the usual fines and fees.

April W. is the mother of three children, Daniel D., age 8 years, Dylan D., age five years, and C.W., age two years. April's husband, Gary W., is the father of Dylan and C.W. Daniel's alleged father was not involved in Daniel's life.
In 2004, Daniel was adjudged a dependent of the juvenile court due to April's methamphetamine use and her practice of leaving him in the care of others for long periods of time. April completed a substance abuse treatment program and reunified with Daniel in 2005.
In June 2011, the San Diego County Health and Human Services Agency (Agency) received a referral alleging April and Gary were using methamphetamine, and had left the children for two weeks in the care of the children's maternal grandmother (Grandmother). Grandmother was disabled, living on a fixed income and renting one room in a home. The owner of the home, V.B., would not allow the children to reside in her home.
Grandmother believed that April and Gary were using methamphetamine. Grandmother had not observed any drug use by the parents but April's behaviors indicated she was using drugs. April started using methamphetamine 10 years earlier. Grandmother reported that Gary was a violent person who would do anything to hurt April. He slashed April's tires and refused to let her access her cellular telephone.

Minors M.P. and C.T. (together, the minors) appeal juvenile court orders terminating dependency jurisdiction of them under Welfare and Institutions Code[1] section 364, subdivision (c), and placing them with their parents, Ron T. and S.P. (together, the parents). The minors contend the parents failed to participate in their court-ordered treatment programs, and thus, the conditions that led to the initial assumption of jurisdiction are likely to exist without court supervision. Although we conclude substantial evidence supports the court's order terminating jurisdiction of C.T., we further conclude the court erred by terminating its jurisdiction of M.P.

A judge denied defendant Anthony Hurtado's motion to reduce a prior felony conviction to a misdemeanor after 10 years and successful completion of probation. Hurtado appeals, contending that the trial court failed to properly exercise its discretion when considering his motion. We agree with Hurtado, reverse the order, and remand the decision to another judge for consideration.

Robert Judd (Robert) appeals from the trial court's order of December 23, 2010 reducing monthly permanent spousal support to Jean Judd (Jean)[1] from $800 to $500 retroactive to July 1, 2010. He contends the trial court erred by failing to terminate spousal support when he reached the customary retirement age of 65. Alternatively, he contends the trial court erred by failing to terminate or further reduce spousal support, as Jean was younger, healthier, and no longer needed spousal support.[2] We conclude these contentions lack merit and affirm the order.

Following the denial of his suppression motion, the minor A.C. (minor) pled no contest to possession of a loaded firearm by a prohibited person.[1] (Former Pen. Code, § 12031, subd. (a)(1)(2)(D)).[2] The juvenile court declared minor a ward of the court and placed him on probation, subject to various conditions.
On appeal, minor contends the juvenile court erred in denying his suppression motion. We disagree and shall affirm.

Appointed counsel for defendant Fausto Robleto Arzate has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no errors and no concerns regarding presentence credits. We shall affirm the judgment.

Defendant Albert Glen Hammons entered negotiated pleas of guilty to felony possession of methamphetamine and misdemeanor resisting a peace officer in exchange for a stipulated
three-year prison term and the dismissal of an allegation of a prior prison term. Defendant also entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey).
In March 2011, the trial court sentenced defendant to the stipulated term. It awarded 34 days of conduct credit for defendant’s 69 days of presentence custody, based on defendant’s unspecified prior “serious or violent felony conviction.”
Defendant contends the trial court erred in restricting his conduct credit on the basis of a prior felony conviction that the prosecutor did not plead or prove. As we explain post, we agree that the restriction of conduct credit was error. We shall modify the judgment.

Following a contested jurisdictional hearing, the juvenile court sustained a charge that the minor J.T. (minor) possessed a short-barreled rifle, a felony (Pen. Code, § 12020, subd. (a)(1)). Having previously found minor unsuitable for deferred entry of judgment (DEJ), the juvenile court denied minor’s request to reduce the offense to a misdemeanor and adjudged him a ward of the court. The juvenile court removed minor from his parents’ custody, committed him to the Juvenile Hall for 60 days with 28 days of credit, declared the maximum term to be three years, and placed him on probation, subject to various conditions.
On appeal, minor contends the juvenile court’s decision to deny his request for deferred entry of judgment was an abuse of discretion; minor further contends that the fines listed in the minute order but not pronounced at disposition should be stricken. We disagree with the first contention, but agree with the second, and shall affirm the judgment but order the disposition order corrected accordingly.

Mishell W., mother of minor A.M., appeals from orders of the juvenile court denying her petition for modification to reinstate reunification services. (Welf. & Inst. Code,[1] §§ 388, 395.) Mother contends the juvenile court abused its discretion in finding that it lacked authority to reinstate services after the statutory period for reunification services had expired. We agree and shall reverse.

Following a jury trial, defendant Algerey McKinley was convicted of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and possession of methamphetamine for sale (Health & Saf. Code, § 11378). The trial court sustained prior narcotics conviction (Health & Saf. Code, § 11370.2) and prior prison term (Pen. Code, § 667.5) enhancements, and sentenced defendant to nine years eight months in prison.
On appeal, defendant contends the trial court erred in admitting text messages, and a witness improperly disclosed his criminal history. We shall affirm.

Defendant Omar Carrasco drove a car that collided with another car carrying driver Gregory Valenzuela and his three passengers. The collision killed Valenzuela and two of his passengers; the third suffered serious, permanent injuries. Defendant left the scene without rendering aid or even reporting the accident; he later pled guilty to leaving the scene of an accident involving death or serious injury. The trial court denied probation and sentenced Carrasco to the upper term of four years in state prison.
On appeal, Carrasco contends the trial court abused its discretion in sentencing him to an upper term and denying probation. We disagree and shall affirm.

A modification decision.