CA Unpub Decisions

This appeal constitutes this court's second time addressing this matter.[1] In defendant Juan Miguel Romero's first appeal, this court reversed a total of four enhancements in counts 2 and 3; modified defendant's sentence in count 1; directed the trial court to strike a prior conviction (Pen. Code, § 667.5, subd. (b));[2] directed the trial court to strike or impose sentences for defendant's two other prison prior enhancements (§ 667.5, subd. (b)); and modified defendant's custody credits.
Defendant makes the following contentions related to his resentencing hearing: (1) the trial court erred by resentencing defendant when defendant was not present; (2) the trial court erred by imposing a full consecutive sentence on count 1, because it was a subordinate term; (3) the trial court erred by imposing a full consecutive sentence on the enhancement in count 1, because it was a subordinate term; (4) the trial court erred when it stayed one of the prison prior enhancements (§ 667.5, subd. (b)); (5) the abstract of judgment contains errors; and (6) defendant's trial counsel was ineffective for allowing the foregoing alleged errors to occur. Court affirm the judgment with directions.

A jury found appellant Daniel Cardona guilty of kidnapping to commit robbery (aggravated kidnapping) (Pen. Code,[1] § 209, subd. (b)(1); count 1), robbery (§ 211; count 2), and attempted robbery (§§ 664, 211; count 3). In a bifurcated proceeding, the trial court found appellant suffered three prior convictions, which qualified as prior strikes (§ 667, subds. (b)-(i)) and serious felony enhancements (§ 667, subd. (a)(1)). Appellant was sentenced as a third strike offender to prison for a total of 40 years to life: 25 years to life on each count, plus 15 years for the serious felony conviction enhancements; the court ordered the sentences on each count to run concurrently.
On appeal, appellant contends: (1) the trial court erred by denying his request for a trial continuance to admit proposed expert testimony on posttraumatic stress disorder; (2) the evidence was insufficient to support his conviction of aggravated kidnapping; (3) the trial court erred in imposing three five-year serious felony enhancements and should have imposed only two of the enhancements; and (4) the imposition of concurrent terms for the aggravated kidnapping and the robbery violated section 654. Court agree with appellant's third contention, which respondent concedes, and will direct the trial court to amend the abstract of judgment accordingly. In all other respects, the judgment will be affirmed.

Defendant Enrique Estrada appeals from a final judgment of conviction following a jury trial. Defendant claims his trial counsel had a conflict of interest in concurrently representing defendant in this trial and his sister in a different action. Defendant contends he was denied his right to counsel under the United States and California Constitutions because trial counsel actively precluded one of defendant's sisters from testifying regarding exculpatory evidence. Court affirm.

Husband purports to appeal from the July 24, 2009 denial of his second motion to set aside the judgment. That motion, however, raised the same issue as his first motion to set aside the judgment and offered the same evidence in support thereof. In his opening brief he complains that the trial court erred in denying his first motion to set aside the judgment in August 2008. Specifically he claims the court erred when it refused to allow the introduction of relevant evidence, found his investigator was not a qualified expert, and denied his request for an evidentiary hearing. We deem his second motion to set aside the judgment to be an invalid motion for reconsideration. A motion for reconsideration is not appealable and an invalid motion for reconsideration does not extend the time to appeal the denial of husband's 2008 motion to set aside the judgment. We therefore dismiss his appeal as untimely.[1] â€

Defendant Michael Sean Daugherty pleaded guilty to all four counts alleged against him, including one count of possession of materials with the intent to unlawfully make a destructive device. (Pen. Code, § 12312.)[1] In accordance with defendant's expectations, the court first imposed a sentence of six years, four months in prison, then suspended execution of the sentence and granted formal probation (including 365 days in county jail). The People appeal the allegedly illegal sentence. We dismiss the appeal because the People are not entitled to appeal the court's grant of probation. (§ 1238, subd. (d).)[2]

M.M. (mother) appeals from the juvenile court's restraining order prohibiting unauthorized contact with her two sons, G. and H., now ages 11 and seven, respectively. (Welf. & Inst. Code, § 213.5; all further statutory references are to this code unless noted.) She contends the juvenile court issued a no-contact restraining order based on an incorrect legal standard and without evidentiary support. For the reasons stated below, Court affirm the order.

Defendant Richard Armand Archibeque was convicted after a 2009 jury trial of the first degree murder of Mary Quigley in 1977. (Pen. Code, § 187.)[1] The jury found not true a special circumstance allegation that the murder was committed during the commission or attempted commission of a rape. (§ 190.2, subd. (c)(3)(iii).) The trial court sentenced defendant to prison for seven years to life, granted him presentence custody credits of 822 days, and ordered him to pay a criminal conviction assessment of $30 pursuant to Government Code section 70373.
On appeal, defendant contends that (1) there is insufficient evidence to support his conviction, (2) the court prejudicially erred in admitting evidence of his conviction for a rape that occurred in 1979, (3) he is entitled to presentence conduct credits, and (4) the Government Code section 70373 assessment must be stricken. As Court disagree with defendant's contentions, Court will affirm the judgment.

A jury found defendant Jasper Bailey guilty of one count of aggravated sexual assault of a child under the age of 14 years (Pen. Code, § 269, count 1)[1] and two counts of rape by force, violence, duress, menace, or fear (§ 261, subd. (a)(2), counts 2 & 3). The victim of the crimes was defendant's daughter (daughter). On appeal, defendant challenges the trial court's exclusion of testimony from daughter's support person, the use of CALCRIM No. 207, and the admission of an uncharged sexual offense under Evidence Code section 1108. Court find no error and affirm.

Defendant Ruben Rios Rivera pleaded no contest to one count of cultivating marijuana (Health & Saf. Code, § 11358) and one count of possessing marijuana for sale (id., § 11359), both felonies. He admitted having suffered one prior strike conviction within the meaning of Penal Code section 667, subdivisions (b) through (i). The trial court granted defendant's Romero motion,[1] striking the strike in the interests of justice. (Pen. Code, § 1385.) The court suspended imposition of sentence, placed defendant on three years formal probation on the condition he serve eight months in jail, and imposed fines and fees. This appeal followed.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and Court have received no written argument from defendant.

Bradford Henschel appeals from the award of attorney's fees to the State Bar of California and the individual defendants who obtained a dismissal of his claims against them. Although he asserts the trial court both erred as a matter of law and abused its discretion in making the award, he has failed to show either. Court affirm.

Defendant Aaron Luan Tran was convicted by negotiated no contest plea of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).[1] He further admitted that he personally used a dangerous and deadly weapon, a glass bottle, in the commission of one of the offenses. (§§ 667, 1192.7.) After denying defendant's motion to withdraw his pleas, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. Two of the conditions of probation are that defendant is â€

A modification decision.

Defendant Michael James Richerson appeals a judgment entered upon a jury verdict finding him guilty of transportation of a control`ed substance (Health & Saf. Code, § 11379, subd. (a)) (count 1) and possession of a device for injecting a controlled substance (§ 11364) (count 2). He contends on appeal that the trial court erred in denying his motion to suppress and his request for an evidentiary hearing, and that the jury was incorrectly instructed. court affirm.

Jon Peter Montonen appeals from a judgment upon a jury verdict finding him guilty of transportation of methamphetamine (Health & Saf. Code, § 11379) and possession of methamphetamine (id., § 11377, subd. (a)). The jury acquitted defendant of possession of a hypodermic needle and was unable to reach a verdict on a count alleging possession of methamphetamine for sale. In a bifurcated proceeding, defendant admitted that he suffered two prior prison terms (Pen. Code, § 667.5, subd. (b)). He contends: (1) the evidence is insufficient to support the verdict on the transportation count, (2) the court erred in instructing the jury pursuant to CALCRIM No. 2300, and (3) the court's admission of his extrajudicial statement violated his Miranda rights. In a supplemental brief, defendant contends that he is entitled to additional presentence credits under recent amendments to Penal Code section 4019. Court remand the matter for a recalculation of defendant's presentence credits and otherwise affirm.