CA Unpub Decisions

Defendant Lance Earl Rose pled no contest to two counts of assault with a deadly weapon and one count of evading a peace officer. He also admitted having a prior serious felony conviction under Penal Code[1] section 667, subdivision (a)(1) and a prior strike within the meaning of section 1170.12, subdivision (a), arising from a kidnapping conviction in 1997. At sentencing, defendant asked the trial court to strike the prior conviction. The court considered the Romero[2] motion but declined to strike the prior conviction because the court found defendant was within the spirit of the three strikes law.
On appeal, defendant contends the trial court abused its discretion in denying his Romero motion. Court disagree and affirm the judgment.

P.A. and Sierra A., parents of dependent minor Nevaeh A., appeal following a special hearing at which the juvenile court established the fact of Nevaeh's birth. The parents contend their due process rights were violated when they did not receive notice of the special hearing, resulting in structural error that requires automatic reversal. The parents further contend the court erred by not complying with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) because there was reason to believe Nevaeh was an Indian child within the meaning of ICWA. court affirm the order establishing the fact of Nevaeh's birth, but remand the case for the limited purpose of ensuring compliance with ICWA inquiry and notice requirements.

Edward A. Gonzalez entered a negotiated guilty plea to one count of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)).[1] Under the plea agreement the People offered the "[l]ow lid" and stated they would argue for a three-year state prison term, and the court indicated it would impose a prison sentence of three years. As part of the plea, Gonzalez waived his right to appeal any stipulated sentence. At the preliminary examination hearing at which the guilty plea was taken, Gonzalez also admitted that he was in violation of probation in San Diego case No. CN264463 and waived his right to an evidentiary hearing. The People made motions to dismiss the balance of the information and two additional cases that had been brought against Gonzalez (case Nos. CN267486 & CN268762). The court granted the People's motions.

Anastasia A., mother of Desmond T., seeks review of a juvenile court order terminating reunification services after 12 months and setting a hearing under Welfare and Institutions Code[1] section 366.26. Anastasia challenges the court's finding that she was provided reasonable reunification services. Anastasia further contends the court erred by not extending services for another six months. She argues there was no showing that returning Desmond to her care posed a substantial risk of detriment and there was a substantial probability he could be returned by the 18-month date. Court deny the petition.

Following a jury trial, defendant and appellant Lawrence Adam Dunn was convicted of violating Vehicle Code section 20001, subdivision (a), a felony, by failing to perform his duty following an accident that caused injury to another person. Additionally, he was convicted of two misdemeanors, namely, resisting arrest (Pen. Code, § 148, subd. (a)(1)) and reckless driving (Veh. Code, § 23103, subd. (a)). In a bifurcated trial, the court found it was true that defendant had been convicted of first degree burglary (Pen. Code, § 459), a serious and violent felony within the meaning of Penal Code sections 667, subdivisions (c), (e)(1), and 1170.12, subdivision (c)(1). The court sentenced defendant to four years in state prison. He appeals.

A jury convicted defendant and appellant Vicky Lynn Benitez of burglary (Pen. Code, § 459),[1] receiving stolen property (§ 496, subd. (a)), and forgery by possession of a completed check with intent to defraud (§ 475, subd. (c)) in case No. INF064289. Because she was convicted, defendant was found in violation of her probation in case No. INF063172. She challenges the imposition of a prior prison term enhancement (§ 667.5, subd. (b)) in case No. INF064289 because the sentence imposed in case No. INF063172 already included an enhancement for the same prison term. The People agree. court affirm and modify the judgment to strike the prison prior enhancement imposed in case No. INF064289.

In the early morning hours on October 21, 2007, Eric Means was in his friend's car with several other friends waiting in the drive-through line at a Del Taco restaurant in Riverside. As Means and his friends proceeded through the drive-through, the car he was in was hit from behind by a car driven by defendant Jude Britton Wiscowiche. When Means got out of his friend's car to take a picture of defendant's license plate, defendant's girlfriend got out of the car and pushed him. Defendant exited the car and punched Means so hard he fell and hit his head on a cement planter. Means died two days later from blunt force trauma.
Defendant was convicted of involuntary manslaughter and assault with force likely to cause great bodily harm. An additional allegation that defendant caused Means to become comatose was found true.
Defendant now contends,

Appellant Rosa Hernandez Tinoco appeals the judgment entered after trial. On March 20, 2007, Tinoco hit a car at an intersection in Corona. Respondent Derrick Rose was a passenger in the vehicle. Rose filed suit against Tinoco claiming he injured his knee in the accident. Tinoco admitted liability for the accident, but denied causation of the injury to Rose's knee. A jury found Tinoco caused Rose's injuries and granted him $208,000 in compensatory damages. The damage award was later reduced by the trial court to $163,526.
Defendant now contends on appeal:
1. The trial court erred in permitting Rose's treating orthopedic surgeon to opine that the accident in question was the cause of Rose's knee injury.
2. The trial court erred in permitting Rose's expert to testify at trial regarding medical bills he had not seen prior to or discussed at his deposition.
Court affirm the judgment in its entirety.

Based on her actions between April and May 2007, defendant and appellant Ellen Amber Duerbeck was charged with unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a), count 1), receiving the same stolen vehicle (Pen. Code, § 496d, subd. (a), count 2), offering a false instrument for filing (Pen. Code, § 115, subd. (a), count 3), and forgery (Pen. Code, § 470, subd. (d), count 4). A jury convicted defendant of all four counts. The jury had been instructed that counts 1 and 2 were alternative offenses. Pronouncement of judgment was withheld and defendant was placed on probation. Defendant contends that only one conviction can stand from the alternative offenses of counts 1 and 2. The People agree and further contend that count 2, the receiving a stolen vehicle conviction, is the conviction that should be reversed. They are correct.

Pursuant to a plea agreement, in November 2009, defendant and appellant Shafiyq Muhammad pleaded nolo contendere to possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1))[1] and possession of cocaine for purposes of sale (Health & Saf. Code, § 11351); in return, the remaining allegations were dismissed, and defendant was immediately sentenced to a term of two years in state prison with 266 days of credit for time served. Defendant's sole contention on appeal is that he is entitled to 90 days of additional presentence conduct credits pursuant to amended Penal Code section 4019 that became effective on January 25, 2010, after he was sentenced. Court reject this contention and affirm the judgment.

Based on an indicated sentence of 25 years to life, defendant and appellant Efrain Garcia Demara pled guilty to possessing a firearm after being convicted of a violent crime (Pen. Code, § 12021.1, subd. (a))[1] and possessing methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1).
Defendant admitted a 2000 conviction for robbery (§ 211) and a 1998 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)). Each admitted conviction constituted a strike (§ 667, subds. (c) & (e)(2)(A)) and a prison prior enhancement (§ 667.5, subd. (b)). Prior to sentencing, defendant filed a Romero[2] motion requesting the trial court dismiss one or both strike priors. Defendant contends the trial court abused its discretion by refusing to strike at least the strike from 1998. Court affirm.

Following a jurisdictional hearing in February 2010, the juvenile court found true that defendant and appellant J.L. (Minor) had committed misdemeanor vandalism (Pen. Code, § 594, subd. (b)(2)(A)) as alleged in a subsequent Welfare and Institutions Code section 602 petition.[1] On April 1, 2010, Minor was continued as a ward of the juvenile court, ordered to serve seven to 14 days in juvenile hall, and committed to the juvenile work program for a period of six to 12 days. Minor's sole contention on appeal is that there was insufficient evidence to support the juvenile court's finding that he had committed vandalism. Court reject this contention and affirm the judgment.

Pursuant to a plea agreement, defendant and appellant Vincent Christopher Lennon pled guilty to evading a police officer (Veh. Code, § 2800.2, subd (a)) and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). In return, defendant was placed on formal probation for a period of three years on various terms and conditions, including serving 180 days in county jail. Defendant's sole contention on appeal is that the trial court violated his plea agreement by modifying his terms and conditions of probation to include gang-related terms. Court reject this contention and affirm the judgment.

Defendant and appellant Billy Earl Jones pleaded guilty to felony possession of a forged California driver's license (Pen. Code, § 470, subd. (b))[1] and felony possession of a forged prescription (Bus. & Prof. Code, § 4324, subd. (a)); in return, the remaining allegations of the complaint were dismissed, and defendant was placed on probation for a period of three years. Subsequently, after defendant admitted he had violated the terms and conditions of his probation, he was sentenced to two years in state prison and awarded a total of 224 days of presentence custody credits. Defendant's sole contention on appeal is whether the trial court erred in not applying the formula provided for in the amended version of section 4019 in effect at the time of his sentencing. Court conclude the trial court erred in applying a two-tiered division of the presentence custody credits.