CA Unpub Decisions

Julio Mixco was convicted of attempted robbery (Pen. Code,[1] 664/211) with the personal use of a knife in the commission of the offense ( 12022, subd. (b)(1)). On appeal, Mixco claims that his conviction should be overturned because it was based on insufficient evidence and because his counsel rendered ineffective assistance. By petition for habeas corpus, Mixco reasserts his ineffectiveness claims. Court affirm the judgment and deny the petition.

Miguel Angel Sanchez Morales appeals from the judgment entered following his conviction by a jury of the second degree robbery of Rudy Cortez (count 1) and the second degree robbery of Javier Aguilar (count 2). (Pen. Code, 211, 212.5.)[1] As to count 2, appellant admitted an allegation that he had personally used a firearm. ( 12022.5, subd. (a).) Appellant was sentenced to prison for seven years.
As to both counts, appellant contends that the evidence is insufficient to show the asportation element of robbery. As to the robbery of Aguilar (count 2), appellant contends that the evidence is insufficient to show the force or fear element. Appellant's remaining contentions are: (1) the trial court committed several errors in its instructions to the jury, and (2) he is entitled to additional presentence custody and conduct credits. Only the last contention has merit. We modify the judgment to reflect the correct number of days of presentence custody and conduct credits. Court affirm the judgment in all other respects.

Angel Cortez appeals the judgment entered after a jury convicted him of possession of a firearm by a felon (Pen. Code,[1] 12021, subd. (a)(1)), possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)), possession of a smoking device (Health & Saf. Code, 11364, subd. (a)), three counts of making criminal threats ( 422), assault by means likely to produce great bodily injury ( 245, subd. (a)(1)), and false imprisonment by violence ( 236). The jury also found true allegations that appellant was armed with a rifle during the commission of two of the charged counts of criminal threats ( 12022, subd. (a)(1)).[2]In a bifurcated proceeding, the trial court found true the allegation that appellant had served a prior prison term ( 667.5, subd. (b)). The court sentenced him to a total term of 10 years in state prison. He contends (1) the court abused its discretion in denying his motion for a mistrial; (2) the court erred in failing to give CALCRIM No. 3500, the unanimity instruction; (3) the court violated its sua sponte duty to instruct on voluntary intoxication pursuant to CALCRIM No. 3426, or trial counsel provided ineffective assistance by failing to request the instruction; and (4) the gun use enhancement imposed on one of the criminal threat counts should be reduced from one year to four months. The People concede the last point, and we shall order the abstract of judgment amended accordingly. Otherwise, Court affirm.

A petition filed under Welfare and Institutions Code section 602, on December 4, 2007, alleged that the minor and appellant Xavier H. committed one count of grand theft of personal property (Pen. Code, 487, subd. (a)). The allegation arose out of the minors theft of cigarettes, having a value greater than $400, from a Los Angeles Police Department bait cara car that is being surveilled by police. On June 6, 2008, minor pleaded no contest to grand theft and the juvenile court ordered him placed home on probation. The court, however, failed to declare whether the grand theft is a misdemeanor or a felony.
Welfare and Institutions Code section 702 states in part that if the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. Where such a wobbler offense is at issue, the provision requires an explicit declaration by the juvenile court. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) Grand theft is a wobbler offense. Under Penal Code section 489, subdivision (b), grand theft is punishable by imprisonment in a county jail not exceeding one year or in the state prison. The juvenile court was therefore required to declare the grand theft a misdemeanor or a felony.

In People v. Brown (June 25, 2004, B166415), a nonpublished opinion, we affirmed the judgment convicting appellant Carl Stanley Brown of second degree robbery and petty theft with a prior. Following our opinion and a denial of review by the California Supreme Court, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Central District of California. That petition was successful and led to a second trial for appellant. The error we address in this opinion occurred during the second trial.

Defendant Veronica Rodriguez appeals her conviction of one count of first degree murder (Pen. Code[1], 187), seven counts of attempted murder ( 187, 664), and one count of shooting at an unoccupied vehicle ( 246). She contends the trial court erred in permitting the prosecution to make a legally erroneous closing argument on the standard for voluntary manslaughter and that her defense counsel was ineffective in failing to object to the prosecutions argument; and the trial court erred in failing to stay the sentence on her conviction for shooting at an unoccupied vehicle. We affirm, but remand for resentencing.

The sole question on appeal is whether the trial court improperly denied appellants motion to compel arbitration based on its conclusion that appellant waived its contractual right to arbitration. Court affirm.

A jury convicted defendant and appellant Jeffrey Martin of first degree murder and found true, among others, a gang enhancement allegation. At his trial, the People introduced, over objection, rap lyrics written by defendant. Those lyrics included references to gangs and homicide. Defendant contends on appeal that the trial court prejudicially erred by admitting the lyrics. He also contends that his sentence custody credits were miscalculated. We hold that the trial court did not err by admitting the lyrics, although defendant is entitled to an additional day of presentence custody credit. We therefore modify the judgment, and affirm it as modified.

Jeffrey Owen Black and Dana Lynn Potter (sometimes appellants) appeal from the superior courts judgment denying their petition for writ of mandate to overturn a decision of respondent California Department of Real Estate (DRE) to revoke Blacks real estate brokers license for two years, to grant him a restricted license and to publicly reprove Potter. The superior court ruled the discipline to be justified. Appellants contend the courts decision is unfounded and wrong as a matter of law. Court affirm.

Sandra Kay Hill appeals an order granting formal probation following her conviction of two counts of inflicting corporal injury on a cohabitant and one count of misdemeanor child abuse. (Pen. Code, 273.5, subd. (a), 273a, subd. (b).) Court affirm.

Plaintiff Ralph Prather, Jr. appeals the judgment of dismissal entered after a demurrer to his first amended complaint was sustained without leave to amend. We conclude that plaintiff has not demonstrated how he can amend his pleading to state a cause of action, and Court affirm the judgment.

Following an hours-long attack on two high school-aged victims, a jury found Miguel S. Garcia guilty of four counts of forcible rape, one count of sodomy by force, two counts of forcible oral copulation, two counts of sexual penetration by foreign object, two counts of robbery, one count of false imprisonment by violence, and one count of criminal threats, with findings that he personally used a firearm on all 13 counts. The trial court sentenced Garcia to an indeterminate term of 25 years to life on one rape count, plus consecutive upper terms on the remaining sex crimes, plus consecutive one-third the middle base terms on the four nonsex crimes, resulting in an aggregate determinate term of 168 years 8 months. We affirm all of Garcias convictions, but find a violation of Penal Code section 654 in imposing consecutive sentences on counts 12 and 13, and that his indeterminate term must be 15 years to life, rather than 25 years to life. Court remand the cause to the trial court with directions to modify Garcias sentence to reflect the noted sentencing adjustments, and, as modified, affirm the judgment.

Enrique Avila appeals from judgment after conviction by jury of voluntary manslaughter. (Pen. Code, 192, subd. (a).)[1] The jury acquitted appellant of murder. ( 187, subd. (a).) The trial court sentenced appellant to the upper term of 11 years in state prison. Appellant contends that his conviction should be reversed because the trial court did not instruct on the law of mutual combat. Court affirm.

Ronald Edward Hollis appeals from the judgment entered after a jury convicted him on two counts of inflicting corporal injury on a spouse (Pen. Code, 273.5, subd. (a) counts 1 and 5);[1] one count of making criminal threats ( 422 count 2); one count of assault with a deadly weapon ( 245, subd. (a)(1) count 3); one count of battery with serious bodily injury ( 243, subd. (d) count 4); one count of false imprisonment by violence or menace ( 236, 237, subd. (a) count 6); and five counts of misdemeanor battery on a spouse ( 243, subd. (e)(1) counts 7 through 11). As to count 1 (corporal injury on a spouse), the jury found true an allegation that appellant had inflicted great bodily injury. ( 12022.7, subd. (e).) Except for count 4 (battery with serious bodily injury), the trial court imposed consecutive sentences on all counts. The sentence on count 4 was stayed pursuant to section 654. The aggregate sentence was 17 years, 4 months (12 years, 4 months for the felonies plus 5 years for the misdemeanors). Appellant contends: (1) count 10 (battery on a spouse) must be reversed because it is a lesser included offense of count 1 (corporal injury on a spouse); (2) the sentences on counts 2 (making criminal threats), 6 (false imprisonment by violence or menace), and 10 (battery on a spouse) must be stayed pursuant to section 654; and (3) the federal double jeopardy clause precludes his conviction on count 4 (battery with serious bodily injury). Court modify the judgment to stay the sentence on count 6 for false imprisonment by violence or menace. In all other respects, Court affirm.