CA Unpub Decisions

A jury convicted James Lamont Bagsby of second degree murder with the use of a firearm and 10 counts of assault with a semiautomatic firearm. He was sentenced to 40 years to life for the second degree murder, consecutive to a determinate sentence of 67 years. Bagsby, who was a mildly retarded 15 year old at the time of the offense, appeals, challenging only the sentences imposed by the trial court. Bagsby contends the cumulative term of 107 years to life, which is equivalent to a life without parole sentence, constitutes cruel and unusual punishment in violation of the federal and state Constitutions. He also contends the trial court erred in selecting the upper term as the principal term for the assault offense and in selecting the upper term for the attendant firearm use enhancements.
This case presents the classic distinction between trial and appellate courts. Trial courts exercise sentencing discretion and appellate courts do not. Thus we are not presented with the question of what sentence would have been the best choice. Rather, we are asked simply to determine if the sentence was properly imposed and, if so, does the sentence violate the prohibitions against cruel and unusual punishment. After careful review of the record, we conclude the trial court properly stated reasons for its sentencing choices as to the determinate terms that it imposed. We also conclude that the cumulative sentence imposed for second degree murder and 10 counts of assault with a firearm and the attached enhancements is harsh, but not unconstitutional. Accordingly, we will affirm the judgment.

Richard Cordova, and his wife, Alba Cordova (together, the Cordovas), appeal from a judgment entered against them on their claims against Jeff Garcia, as Trustee of the JJG Family Trust, to recover $125,000 paid to Garcia related to a series of real estate transactions. The Cordovas argue the trial court erred in finding that the $125,000 payment was a nonrefundable option consideration because the payment was actually a refundable down payment for the purchase of Garcia's house. We disagree with the Cordovas and affirm the judgment.

A jury convicted Robert Bruce Gross of (1) assault by means likely to produce great bodily injury (count 1: Pen. Code, § 245, subd. (a)(1)) (undesignated statutory references will be to the Penal Code); and (2) felony elder abuse (count 2: § 368, subd. (b)(1)). As to each count, the jury found true a sentence enhancement allegation that Gross personally inflicted great bodily injury upon a person 70 years of age or older (§ 12022.7, subd. (c)). In a bifurcated proceeding, the trial court found true enhancement allegations that Gross had (1) suffered two prior convictions that rendered him ineligible for probation (§ 1203, subd. (e)(4)); (2) served a prior prison term (§§ 667.5, subd. (b), 668); (3) served a prior prison term for a violent felony (§ 667.5, subd. (a)); (4) suffered a prior serious felony conviction (§§ 667, subds. (a)(1), 668, 1192.7, subd. (c)); and (5) suffered a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12 ).
The trial court sentenced Gross to an aggregate prison term of nine years under the Three Strikes law and recommended he be housed in a psychiatric facility.
Gross appeals, contending the trial court erred in failing sua sponte to instruct the jury on the elements of simple assault and misdemeanor elder abuse as lesser included offenses of assault with force likely to produce great bodily injury (count 1) and felony elder abuse (count 2). We affirm.

A jury convicted Gaston Leobardo Tapia and his codefendant, Thomas Carr, of burglary (Pen. Code,[1] § 459, count 1) and receiving stolen property (§ 496, subd. (a), count 2). At a bifurcated hearing, Tapia admitted, and the trial court found true, allegations he had served two prior prison terms (§ 667.5, subd. (b)). The court sentenced Tapia to a three-year, eight-month prison term, consisting of the two-year midterm on count 1, a consecutive eight-month term on count 2, one year for the first prison prior and another one-year term, stayed under section 654, for the second prison prior.
On appeal, Tapia contends the trial court prejudicially erred by denying his request for a limiting instruction that a holding cell conversation between Carr and a co-participant be considered only against Carr, and his counsel rendered constitutionally ineffective assistance by failing to exclude that conversation on relevance grounds. He further contends the court prejudicially erred by refusing to instruct the jury with CALCRIM No. 3400 as to alibi. Finally, Tapia contends he is entitled to additional conduct credits under section 4019. Tapia's latter contention has merit, and we modify the judgment to award an additional 76 days of conduct credits under section 4019. As so modified, we affirm the judgment.

On September 24, 2010, at about 12:30 p.m., defendant Charles Anthony Carey was seen repeatedly entering an unlocked truck. He was detained by an Oroville police officer and found possessing a flashlight, a screwdriver, and two packages of cigarettes. The owner of the pickup said the cigarettes were similar to those he kept in the truck, and defendant did not have permission to enter the truck.
Defendant pled no contest to attempted second degree burglary (Pen. Code, §§ 664/459) and admitted one strike and two prior prison term allegations. The trial court sentenced defendant to a five-year prison term, imposed various fines and fees, and awarded 189 days' presentence credit (127 custody and 62 conduct).

In December 2007, some Norteño gang members assaulted a friend of defendant Ulisses Perez Gomez.[1] After defendant discussed the incident with friends, the group decided to â€

On July 17, 2009, petitioner David Bell was sentenced to state prison for an aggregate term of six years eight months based upon convictions for four counts of sale of methamphetamine in case No. 08F05973 and possession of marijuana for sale and possession of a controlled substance with a firearm enhancement in case No. 08F00451. At the time of sentencing, Penal Code section 4019[1] provided that conduct credits could be earned at the rate of two days for every four days served. (§ 4019, former subds. (b), (c).) Petitioner received presentence custody credits totaling 583 days (case No. 08F05973 -- 361 actual plus 180 conduct; case No. 08F00451 -- 28 actual plus 14 conduct). Petitioner did not appeal.

Charged with attempted murder, defendant David Dale Lee was convicted by the jury of the lesser offense of attempted voluntary manslaughter. The jury found firearm use and great bodily injury allegations to be true. The jury also convicted defendant of possession of methamphetamine and possession of a firearm by a convicted felon. In bifurcated proceedings, the court sustained six prior prison term allegations.
The court sentenced defendant to state prison for an aggregate term of 25 years 10 months.
Defendant appeals. He contends that insufficient evidence supports the trial court's reason for imposition of the upper term for attempted voluntary manslaughter and that the court's reason constituted an impermissible dual use of facts. He also contends that to the extent an objection should have been raised to preserve the issue, counsel rendered ineffective assistance. We reject defendant's contentions.

In a trial to the court following his waiver of jury trial, defendant Clyde Jerome Hill was convicted of infliction of corporal injury on a cohabitant (Pen. Code,[1] § 273.5, subd. (a)) and acquitted of making criminal threats (§ 422). The court found true allegations that defendant had suffered two prior domestic violence convictions (§ 273.5, subd. (e)(1)) and had served two prior prison terms (§ 667.5, subd. (b)).
Defendant was sentenced to state prison for the upper term of five years plus two years for the prior convictions. He was awarded 119 days' custody credit and 118 days' conduct credit and was ordered to pay a $1,200 restitution fine (§ 1202.4), a $1,200 restitution fine suspended unless parole is revoked (§ 1202.45), a $30 court security fee (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373).

On June 18, 2010, a trial court sentenced defendant Curtis Lynn Collier for the third time on his 2002 convictions for possessing for sale and manufacturing methamphetamine, maintaining a place for its manufacture, and possession of precursors.[1] At the time of the 2010 sentencing, the court

orally imposed a lifetime narcotic offender registration requirement.[2] The trial court further advised defendant that he would be subject to a five-year term of parole after his release from the 14-year prison sentence.
Defendant contends the lengthy registration requirement is invalid, and the People concede error. He also contends that he is subject to a parole supervision term of three years, rather than five. Again, the People concede error, but argue harmless error.
We agree with the parties and shall affirm the judgment with a modification to correct the registration requirement, as described below.

A jury convicted defendant David Wayne Rosendahl of driving under the influence (DUI) (Veh. Code, § 23152, subd. (a) -- count 1) and driving with a blood-alcohol level of .08 percent or more (Veh. Code, § 23152, subd. (b) -- count 2). The jury also found that as to each count defendant had four prior under-the-influence-related convictions. (Veh. Code, § 23550.5.)
Defendant was sentenced to state prison for the upper term of three years on count 2 and, without imposing sentence, the court purportedly stayed sentence on count 1 pursuant to Penal Code section 654. The court also imposed probation-like conditions and restitution fines of $200 in accordance with Penal Code sections 1202.4 and 1202.45 as well as various fines and fees. The court gave defendant 88 days of credit for time served and 88 days of conduct credit. Defendant appealed.
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Instead of a supplemental brief, defendant filed a letter requesting that a hearing for bail on appeal be set and stating that after he is released on bail he will file a supplemental brief. We decline to set such a hearing. Absent extraordinary circumstances, such as health of the defendant or imposition of excessive bail, which are not present here, an application for bail on appeal following imposition of judgment is to be made in the trial court, not the appellate court. (Pen. Code, § 1272, subd. (3); People v. Oreck (1945) 69 Cal.App.2d 317, 318.)

Defendants Christopher Castro and Henry Lopez appeal, in propria persona, from a final judgment after court trial. For the reasons stated below, we shall affirm. Castro and Lopez have elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.121.) Thus, the appellate record does not include a reporter's transcript of the hearing in this matter. This is referred to as a â€

Defendant Stephen Sherron was part of a group of young men who robbed a man at gunpoint during a power outage at the victim's apartment complex. Convicted by jury of armed robbery and assault with a firearm, defendant was sentenced to a three-year state prison term.
On appeal, defendant contends his trial counsel rendered ineffective assistance at sentencing for failing to object to the trial court's stated reasons for denying him probation. We affirm.

The Fresno County Juvenile Court found that minor J.M., age 16, was described by Welfare and Institutions Code section 602 in that he committed grand theft from a person. (Pen. Code, § 487, subd. (c).) Because the minor was a resident of Sacramento County, the matter was transferred there for disposition. Following preparation of a social study report, the Sacramento County Juvenile Court continued the minor as a ward of the court, continued his placement in a group home, and reinstated his wardship status on terms and conditions including a period of community service.
The minor contends, and the Attorney General concedes, the matter must be remanded to the Sacramento court to determine in its discretion whether the grand theft is a felony or a misdemeanor. We shall remand for further proceedings.