CA Unpub Decisions

Sentenced to 300 years to life plus 20 years in state prison for kidnapping and committing a series of forcible sex acts on his 15-year-old victim, defendant contends the trial court abused its discretion by allowing two prior victims to testify he raped them under similar circumstances and by disallowing evidence his victim had been molested and had lied about it, and evidence of medication she failed to take. Defendant concedes the propensity evidence was admissible under Evidence Code section 1108, and we find no abuse of discretion pursuant to Evidence Code section 352. Court can find no manifest injustice in the manner in which the trial court exercised its discretion, and even if the trial court abused its discretion, any error was harmless beyond a reasonable doubt. Nor did the trial court abuse its discretion by refusing to strike defendants prior convictions. Court affirm.

Defendant Faustino Anthony Perez was charged with and convicted by a jury of two counts of attempted murder, shooting at an occupied vehicle, five counts of assault with a semiautomatic firearm, and various enhancements. Despite substantial evidence the shooting constituted attempted voluntary manslaughter on either a heat of passion or imperfect self-defense theory, defendant did not request, and the trial court did not give, an instruction on the lesser included offense. We conclude the trial courts failure to instruct the jury sua sponte on attempted voluntary manslaughter constitutes reversible error as to the two counts of attempted murder. As to the remaining counts and enhancements, the judgment is affirmed. Because we also conclude there is substantial evidence to support the jury verdicts finding defendant guilty of two counts of attempted murder, defendant may be retried on the two attempted murder counts.

Juan Gutierrez (father) appeals from (1) an order requiring him to pay $444 per month in child support for two of his children based on imputed income, and (2) a subsequent order reducing his obligation to $160 per month based on his actual income. He raises various challenges to the courts jurisdiction, its use of the child support guidelines, and its imputation of income; and he claims the court erred in failing to make the new order sufficiently retroactive. Court shall affirm in part and reverse in part.

A jury convicted defendant Rudy Arocha of possession of a weapon in a penal institution. (Pen. Code, 4502, subd. (a).) The trial court found defendant had three prior strikes: two robbery convictions and a murder conviction. (Id., 667, subds. (b)-(i), 1170.12.) Defendant was sentenced to state prison for 25 years to life consecutive to the term he was then serving. On appeal, defendant contends the trial court abused its discretion and violated due process when it ordered that he would be restrained by leg braces during the jury trial. Court shall affirm the judgment.

After a final judgment of partition of real property and accounting was entered, the trial court ordered defendant Efren R. Sandoval to pay plaintiff Charco Ventures $95,267.41 in attorney fees and costs pursuant to Code of Civil Procedure section 874.010. Section 874.010 authorizes an award of costs in a partition action to include reasonable attorney fees that have been incurred or paid by a party for the common benefit. (Code Civ. Proc., 874.010, subd. (a).) On appeal, Sandoval argues the trial court made a number of errors in awarding, calculating, and apportioning the fees incurred by plaintiff for the common benefit. Court shall affirm the judgment.

Defendant Jonathan Michael Rodriquez pled no contest to second degree burglary (count three) and attempted first degree burglary (count one). He was sentenced in accordance to an aggregate term of two years,[1] comprised of a two-year term for the attempted first degree burglary and a concurrent two-year term on the second degree burglary. Defendants sole contention in his opening brief was that the sentence imposed on count three for attempted second-degree burglary was incorrect. In his reply brief, defendant acknowledges this argument was made in error. The error apparently occurred because of an error in the abstract of judgment. That is, the abstract of judgment shows that count three was a conviction and sentence for attempted residential burglary. Accordingly, Court direct the trial court to correct the abstract of judgment.

Christina G., mother of the minors (Brianna, Jacob and Sarah), appeals from orders of the juvenile court denying her petition for modification of prior orders, terminating her parental rights, and adopting a permanent plan with the goal of adoption for the minors. (Welf. & Inst. Code, 366.26, 388, 395.) Mother abused methamphetamine for many years. She relapsed several times while receiving over 18 months of reunification services. Well after those services were terminated, on the day of the scheduled permanency plan hearing, she petitioned to modify prior orders to provide for further reunification services, alleging she had completed drug rehabilitation and had been reunified with a child in another county. The juvenile court denied the petition after an evidentiary hearing.

Hugo Sanchez entered a negotiated guilty plea to forcibly committing a lewd act on a child under 14 with substantial sexual conduct (Pen. Code[1] 288, subd. (b)(1), 1203.066, subd. (a)(8)) and to committing a lewd act on a child under 14 ( 288, subd. (a)). Consistent with the terms of the plea agreement, the court sentenced Sanchez to nine years in prison: the six-year middle term for the forcible lewd act and a consecutive three year lower term for the separate lewd act. Sanchez appeals, contending the imposition of a full strength consecutive term for the lewd act was unauthorized. Court agree and reverse and remand for resentencing.

The juvenile court sustained a Welfare and Institutions Code section 602 petition alleging Richard B. committed misdemeanor battery against his mother. (Pen. Code, 242.) Richard contends there was insufficient evidence to support the court's findings because his mother was the sole prosecution witness and his mother's testimony was not reliable or credible. Court reject this contention and affirm.

Krouner contends: (1) the Department erroneously found he was in default because he did not attend the administrative hearing, and improperly denied his application without taking into account evidence of his rehabilitation; (2) the trial court erroneously excluded his extra-record evidence and declined to relieve him of default due to mistake, inadvertence and excusable neglect under Government Code section 11520; and (3) Department failed to serve its administrative decision by registered mail under Government Code section 11518. Court affirm the judgment.

A jury convicted defendant, Jose Serrano, of forced oral copulation of a minor at least 10 years his junior (Pen. Code, 288a, subd. (c)(1))[1]and committing a lewd and lascivious act on a minor ( 288, subd. (a)), during which he engaged in substantial sexual conduct ( 1203.066, subd. (a)(8)) He was sentenced to prison for eight years. His appellate attorney submitted a Wende brief to this court, stating that he found no arguable issues. However, after review of the record, we asked the parties to address defense counsels failure to object to numerous pieces of evidence. In his response to our request, defendant contends that his trial attorneys failure to object to some of this evidence constitutes incompetency of counsel, requiring reversal of his convictions. Court conclude that the evidence of defendants guilt is such that reversal of defendants convictions is not appropriate based on the errors in admission of evidence defendant, in his appeal, calls to our attention.

Defendant Miguel Angel Morales appeals from judgment entered following jury convictions for robbery (Pen. Code, 211; count 1)[1]and possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury also found true the allegation that defendant personally used a firearm as to count 1 ( 12022.53, subd. (b), 1192.7, subd. (c)(8)). The parties stipulated that, as to count 2, defendant had previously been convicted of a felony, and the trial court found true the prior strike allegation ( 667, subds. (c) and (e)(1), 1170.12, subd. (c)(1)). In a bifurcated trial, the jury also found true the gang enhancement on the robbery count ( 186.22, subd. (b)).
The trial court sentenced defendant to a prison term of 26 years. Defendant contends the trial court abused its discretion in denying his motion for mistrial. Defendant also argues in his opening brief and in a supplemental brief that there was insufficient evidence supporting the gang enhancement. Court conclude there was no prejudicial error and affirm the judgment.

A jury found defendant, Obbie McCray, guilty of first degree burglary. (Pen. Code, 459, 460.)[1] The jury found true an allegation that a person who was not defendants accomplice was present in the residence during the burglary. ( 667.5, subd. (c)(21).) The trial court sentenced defendant to state prison for a term of four years. Defendant contends that his conviction and associated enhancement must be reversed due to a variety of alleged misconduct on the part of the prosecutor. Alternatively, if defendant waived any of his arguments concerning prosecutorial misconduct, by failing to object at the trial court, then defendant contends he was denied effective assistance of counsel. Court affirm the judgment.

Defendant and appellant Anthony Dwayne Chambers appeals his jury conviction for second degree murder. (Pen. Code, 187, subd. (a).) He claims there was insufficient evidence to support the jurys true findings on the gun enhancements. ( 12022.53, subds. (c) & (d).) He also contends the trial court abused its discretion by denying his motion to strike a prior conviction.