CA Unpub Decisions

Accepting a case disposition calling for dismissal of one count and no action on four prior convictions alleged under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)(d)),[1] defendant and appellant Randall Roosevelt McCullon entered a plea of no contest to a charge of failing to register after an address change, a violation of section 290, subdivision (b).[2] Defendant was sentenced to the agreed upon term of two years in state prison.

Appellant appeals from the judgment entered following his court trial and conviction of battery causing injury on a peace officer (Pen. Code, § 243, subd. (c)(2));[1] sale or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); possession of methamphetamine for sale (Health & Saf. Code, § 11378); driving while under the influence of a drug (Veh. Code, § 23152, subd. (a)); being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)); and two counts of resisting arrest (§ 69). The court also found true section 12022.7, subdivision (a) allegations that he personally inflicted great bodily injury on the victim in committing battery and resisting arrest. Appellant admitted allegations that he had a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c), and served four prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced him to serve 12 years 4 months in state prison.[2] Appellant contends that the trial court committed prejudicial error and violated his constitutional rights by denying his request to revoke his previously invoked Faretta v. California (1975) 422 U.S. 806 (Faretta) right to represent himself; by denying his request to continue the trial date; and by failing to make timely disclosure of the court's acquaintance with a witness. He also requests that we examine the record of his hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. We conditionally reverse for the administration of the oath to the custodian of sheriff's records. (People v. White (2011) 191 Cal.App.4th 1333.) Should no records be found, as described in our dispositional order below, the judgment will be affirmed.

Appellant Emiliano Lopez appeals from the order dated December 13, 2010,[1] denying his request to modify child custody and visitation orders. Lopez argues the trial court erred in denying modification orders because he is incarcerated in state prison and was denied access to a telephone which would have allowed him to appear at the hearing. Lopez also contends he has been deprived of a relationship with his daughter for seven years without due process of law, in violation of the Fourteenth Amendment. We affirm.

Richard Alvarez appeals from the judgment entered after a jury convicted him of first degree murder and second degree robbery and found true a criminal street gang special circumstance related to the murder and firearm use and criminal street gang allegations as to both offenses. Alvarez does not challenge his second degree robbery conviction or the special allegations related to that offense. He, however, contends the judgment with respect to his first degree murder conviction should be reversed because the trial court prejudicially erred in limiting the testimony of his psychologist's expert testimony regarding his history with attention deficit hyperactivity disorder (ADHD). We agree and thus reverse the judgment with respect to the first degree murder conviction and attendant special circumstance and allegations.

Defendant and appellant Theopolis Pollard, Jr., was convicted by jury of robbery (Pen. Code, § 211),[1] second degree commercial burglary (§ 459), forgery (§ 476), and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)). The trial court found defendant had suffered two prior convictions under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), had two prior serious felony convictions (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)).
Defendant was sentenced to 25 years to life for the robbery, enhanced by 10 years for the section 667, subdivision (a) prior convictions, for a total of 35 years to life. Identical 35 years to life sentences were imposed for the second degree commercial burglary and the forgery, but those terms were stayed (§ 654). A concurrent term of 35 years to life was imposed for the dissuading a witness conviction.
In his timely appeal from the judgment, defendant argues his Sixth and Fourteenth Amendment rights to confront witnesses were violated when the trial court relied on a certificate of competence from the medical director of Patton State Hospital (Patton) in finding that defendant had regained his competency to stand trial. Defendant further argues he satisfied his burden of proving continuing incompetence at the section 1368 hearing after being returned from Patton. Finally, defendant contends the evidence is insufficient to support his forgery conviction.
We hold that competency proceedings are not criminal trials for purpose of the Sixth and Fourteenth Amendments. Substantial evidence supports the trial court's finding that defendant had regained competency to stand trial. The forgery conviction is also supported by substantial evidence. We affirm.

Joshua Haver, Christopher Haver, Kyle Haver, and Jennifer Morris appeal from the judgment entered in favor of respondent BNSF Railway Company, after BNSF's demurrer to their complaint was sustained without leave to amend. We reverse.

A jury convicted defendant Wesley Randle of assault with a deadly weapon (§ 245, subd. (a)(1))[1] and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) based upon a single act: he intentionally threw a hatchet at Taphanita Robinson. Defendant contends, and the Attorney General concedes, that he cannot be properly convicted of both offenses. We therefore reverse his conviction of assault by means of force likely to produce great bodily injury. Defendant also contends that the trial court abused its discretion in denying his Romero[2] motion to strike his two prior convictions, and that his â€

The jury found defendant Guillermo Miranda guilty of assault with a semi-automatic firearm of Miguel Navarro (Pen. Code, § 245, subd. (b)),[1] making a criminal threat to Navarro (§ 422), and carrying a loaded and unregistered firearm (§ 12031, subd. (a)(1)). The jury also found all three crimes were committed for the benefit of a criminal street gang, and defendant personally used a firearm as to the assault and criminal threats charges (§ 12022.5). Defendant was sentenced to 16 years in state prison.[2]
In this timely appeal, defendant contends the trial court made reversible evidentiary errors. Respondent contends defendant forfeited the claims of error by failing to object to the evidence in the trial court, and the contentions are frivolous. (Evid. Code, § 353.) We affirm. The contentions were forfeited, and in any event, admission of the evidence was not an abuse of discretion.

In this action for contractual fraud, on September 24, 2010, the trial court denied defendants and appellants Paul Ottosi's and Johanna Ramos's special motions to strike the complaint of plaintiff and respondent Joseph Felix McNulty under the anti-SLAPP[1] statute, Code of Civil Procedure section 425.16.[2] Defendants contend the trial court erred in denying the motions. We affirm.

Tyrone Eleby appeals his conviction for second degree burglary of a vehicle. (Pen. Code, § 459.)[1] In a bifurcated trial, he admitted two prior felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had served six prior prison terms (§ 667.5, subd. (b)). He was sentenced to 12 years in prison, consisting of the three-year upper term for the burglary doubled to six years for one prior strike (with the other strike being stricken for purposes of sentencing) plus one year for each of the six prior prison terms.
Eleby claims insufficient evidence to support his conviction, and that the trial court erred by admitting fingerprint evidence and limiting cross-examination of the

This case concerns a 99-year lease executed in 1948 (the lease) encumbering a commercial property at 4918 E. Second Street, Long Beach, California (the property).
Blairmont LLC (Blairmont); Fourth Church of Christ, Scientist (Fourth Church); Frank C. Blair and Ruth C. Blair (the Blairs, and collectively referred to as the Blairmont parties) appeal from a final judgment entered after a bench trial on their claims of declaratory relief concerning the lease. David Horowitz (Horowitz) and Arlene Horowitz, Trustees of the Horowitz Trust (the Horowitzes), and Bernard R. Kaufman (Kaufman) and Judith L. Kaufman, Trustees of the Bernard and Judith Kaufman Trust (the Kaufmans, and collectively referred to as the trustees) cross-appeal from the trial court's rulings disposing of the trustees' cross-complaint against the Blairmont parties.

T.S. was determined to be a dependent child and was removed from the care of both parents. Only the child's father (Father) appeals, contesting both the jurisdictional findings and the order removing T.S. from his care. Since jurisdiction is supported by uncontested findings of the court as to the child's mother, Father's challenge to dependency jurisdiction necessarily fails. We conclude the removal order as to Father is supported by substantial evidence and affirm.

Defendant James Shakuell Celestin-Willis timely appealed from a judgment entered on his plea. His sole argument on appeal is that the trial court erred when it imposed a criminal justice administration fee pursuant to Government Code section 29550, subdivision (c).[1] Respondent concedes that the fee was not authorized, and asks this court to strike it. We accept respondent's concession, and order that the fee be stricken, and that the abstract of judgment be corrected accordingly. We otherwise affirm.

A jury convicted defendants Sergio Garcia Delacruz and Marisela Andrade of first degree murder and kidnapping. It also found true special-circumstance allegations for purposes of life-without-parole sentences (murder while engaged in a kidnapping) and a firearm-use-causing-death allegation as to Delacruz for purposes of a consecutive 25-year-to-life sentence enhancement. The trial court sentenced defendants to life without parole for the murder convictions, stayed eight-year concurrent sentences for the kidnapping convictions, stayed Delacruz's 25-year enhancement, and imposed $10,000 restitution fines (Pen. Code, § 1202.4)[1] and corresponding, suspended parole-revocation fines (§ 1202.45). On appeal: Delacruz contends that (1) the trial court erred by overruling his objection to the admission of his confession that was grounded on an involuntary waiver of his Miranda[2] rights, and (2) the suspended parole-revocation fine is improper because his sentence does not allow for parole; Andrade contends that the trial court erred by (1) inadequately instructing the jury on the natural and probable consequences doctrine, (2) failing to instruct the jury sua sponte on the lesser included offense of manslaughter, and (3) inadequately instructing the jury on second degree murder. As a fallback position, she claims that she received ineffective assistance of counsel because her trial counsel failed to request an adequate instruction on the natural and probable consequences doctrine. We affirm the judgments.