CA Unpub Decisions

Defendant Juan Antonio Flores was convicted of making a criminal threat against his girlfriend. On appeal, he contends (1) the trial court erred in ordering that he be shackled during trial, (2) the trial court erred in denying his motion for a new trial based on prosecutorial misconduct, and (3) the abstract of judgment is incorrect. We will direct the trial court to correct the abstract of judgment, and we will affirm in all other respects.

Following a contested hearing, and pursuant to Welfare and Institutions Code section 707.1, subdivision (b)(1),[1] Daniel C. (appellant) was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for a maximum confinement time of nine years five months. On appeal, he contends the juvenile court both violated its authority and abused its discretion in committing him to the DJF. He also contends that the juvenile court abused its discretion in setting his term of confinement.
We originally disagreed with appellant and affirmed the judgment. Appellant petitioned for review, which the California Supreme Court granted. By order filed February 1, 2012, the Supreme Court transferred the case to this court, with directions to vacate our decision and to reconsider the cause in light of In re C.H. (2011) 53 Cal.4th 94 (C.H.). We have vacated our prior decision and reconsidered the matter. We now reverse the juvenile court's commitment order to the DJF.[2]

A modification decision.

Wendy J. appeals from an order terminating her parental rights to her daughter, Ashley J., under Welfare and Institutions Code section 366.26. (Further statutory references are to the Welfare and Institutions Code.) We affirm.

Jeanie R. appeals a juvenile court judgment removing her minor daughter, Emily O., from her custody following true findings made on a supplemental petition under Welfare and Institutions Code[1] section 387. Jeanie challenges the sufficiency of the evidence to support the court's findings the previous placement with her was ineffective in protecting Emily and removal from parental custody was necessary to prevent substantial danger to her. We affirm the judgment.

A jury convicted Gregory Ford Lymuel, Jr., of one count of first degree murder (Pen. Code,[1] § 187, subd. (a)) and two counts of attempted first degree murder (§§ 187, subd. (a), 664). As to the murder count, the jury found true the special circumstance allegation the murder was intentional and perpetrated by means of discharging a firearm at another person outside the motor vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)). As to all counts, the jury found true allegations Lymuel personally and intentionally discharged a firearm proximately causing great bodily injury or death (§§ 1192.7, subd. (c)(8), 12022.53, subd. (d)).

The appellant in this case was at all material times incarcerated at a state prison. Relying on facts which do not appear in the record on appeal, he argues prison officials unlawfully deprived of him of the ability to appear for trial in the marital separation proceeding which gives rise to his appeal. Accordingly, he contends the judgment of separation, including the trial court's determination of the date of separation, should be reversed.
Because appellant relies on matters outside the record, on appeal we treat his appeal as a petition for a writ of error coram vobis and reverse the trial court's judgment with directions it conduct a new trial at which appellant has an opportunity to appear by telephone.

Rochelle T. Bastien appeals the summary judgment against her in the lawsuit she filed against Denny Kershek, alleging fraud, breach of contract, breach of fiduciary duty and professional malpractice arising from Kershek's participation as a mediator in Bastien's 2002 divorce. We conclude, as did the trial court, that Bastien's fraud cause of action is barred by the statute of limitations, and accordingly we affirm the judgment.

A jury convicted Jeremy Allen Wessels of first degree murder (Pen. Code,[1] § 187, subd. (a)), and found true an enhancement allegation that he was armed with a firearm in the commission of the crime (§ 12022, subd. (a)(1)). The court sentenced Wessels to 25 years to life on the murder conviction, plus one year on the weapons enhancement. It awarded Wessels 670 days credit for actual time served, and zero days of conduct credit.
The murder was committed in 1994, but Wessels was not arrested and charged with the offenses until 2008.[2] Wessels contends (1) the 14-year preaccusation delay denied him his state and federal constitutional rights to due process; (2) the court erroneously refused to admit into evidence a witness's prior statement as past recollection recorded under Evidence Code section 1237; (3) the court refused to permit impeachment of another witness; and (4) the court failed to award him presentence conduct credit. The People correctly concede the latter contention. We remand for the trial court to award Wessels 334 days of presentence custody credits and amend the abstract of judgment accordingly. We otherwise affirm the judgment.

A jury convicted Tyrone Roshawn Austin of robbery (Pen. Code,[1] § 211) and found true allegations that he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). In a bifurcated hearing after Austin waived a jury trial on his prior convictions, the trial court found true allegations that Austin had suffered one prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and five prior strike convictions (§§ 667, subds. (b)-(i), 1170.12). It denied Austin's motion to dismiss his prior strike convictions and sentenced him to a total term of 34 years to life, consisting of an indeterminate term of 25 years to life on the robbery charge and consecutive determinate terms of five years for the prior serious felony and four years for the firearm use allegation.
Austin contends there is insufficient evidence he personally used a firearm in the commission of the robbery. He further contends the trial court abused its discretion by refusing to strike four of his five prior strike convictions under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Austin asks us to reverse the judgment and remand the matter for resentencing so that the court can apply the relevant legal standards for dismissal of a strike conviction. We affirm the judgment.

Defendant Robert Paul Milner pleaded no contest to possession of a controlled substance and admitted a prior strike in exchange for a stipulated sentence of 32 months in state prison that would increase to six years if he failed to appear for sentencing. He failed to appear and the trial court imposed the six-year sentence.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On October 21, 2010, Tina Weldin stopped at a gas station to get gas. She pulled up behind defendant's truck, which was next in line to access the gas pumps. Defendant was not in or near his truck. When the customer in front of defendant finished refueling and drove off, defendant had not returned to his truck. Weldin noticed a tow truck and some police officers and thought that whatever was going on may involve the absent driver of the truck in front of her. Accordingly, she pulled around the truck and got out of her car to begin refueling.

Defendant Ramon Garcia-Cornejo pleaded no contest to second degree robbery in the theft of marijuana plants, admitted he was armed with a firearm, and also admitted being an accessory after the fact to the crime of evading an officer causing injury. Sentenced to six years in state prison, defendant also was ordered to pay, jointly and severally with his codefendant, restitution totaling $171,652 to two people injured in the car crash that followed his codefendant's attempt to evade police.
On appeal, defendant contends his trial counsel provided ineffective assistance at sentencing by (1) failing to urge the court to impose a lesser sentence, and (2) failing to object to the restitution order.
The latter contention has merit. We shall reverse the restitution order and remand for the trial court to conduct a restitution hearing.

A jury found defendant Louis Mayen guilty of one count of lewd and lascivious conduct with a child under the age of 14. (Pen. Code, § 288, subd. (a).) Sentenced to an eight-year state prison term, defendant appeals, contending the trial court abused its discretion in admitting evidence of his prior uncharged sexual offenses under (1) Evidence Code sections 1108 and 352,[1] and (2) section 1101, subdivision (b). We conclude the court did not abuse its discretion in admitting defendant's prior uncharged sexual offenses and, even if the court did err in failing to sanitize those offenses, any error was harmless. We shall affirm.