CA Unpub Decisions

Defendant Israel Rea appeals from judgment entered following a jury conviction for willfully inflicting corporal injury on a cohabitant, resulting in a traumatic condition. (Pen. Code, 273.5, subd. (a).)[1] The trial court granted defendant three years of formal probation and ordered him to serve 180 days in jail.

Defendant contends the trial court committed instructional error by (1) refusing to give instructions on the definitions of traumatic condition and mutual combat; (2) instructing on flight but refusing to instruct on the absence of flight; and (3) instructing the jury that defendants right to self-defense was restricted if he had engaged in mutual combat or was the initial aggressor. Defendant also argues the prosecutor committed misconduct by incorrectly telling the jury that defendant had the burden of proving he acted in self-defense. Court conclude there was no prejudicial error, either individually or cumulatively, and accordingly affirm the judgment.

Defendant Douglas Mark Thurber was charged with making criminal threats (Pen. Code, 422) to two female victims Charla Allen and Michelle Velasquez. Allen had numerous phone calls with defendant while he was incarcerated, including some in which she made statements to the effect that she had not taken his threats seriously and was not actually afraid. Accordingly, the jury found defendant not guilty on the count relating to Allen. Velasquez did not testify at trial; over defendants objection, however, a tape of her 911 call was admitted into evidence. The jury found defendant guilty on the count relating to Velasquez. One 5-year serious felony prior conviction enhancement (Pen. Code, 667, subd. (a)) and one strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12) were found true. Defendant was sentenced to a total of nine years in prison.

Following a jury trial, defendant Jeffery Maxwell Bench was convicted of unlawfully taking or driving a vehicle (Veh. Code, 10851, subd.(a)) and was sentenced to four years in state prison. He appeals the conviction claiming (1) his trial counsel was ineffective for failing to object to prosecutorial misconduct during closing argument; and (2) the trial court erred in instructing the jury it could consider defendants failure to explain or deny evidence against him. Court affirm.

On October 2, 2007, defendant Reginald German Louis Taylor confronted his ex-wife and her neighbor in front of their apartment complex. Defendant pulled out a knife, sliced open the neighbors stomach, and stabbed him two times before the knife could be wrestled away from him. Defendant was convicted of attempted premeditated, deliberate, and willful murder; assault with a deadly weapon; and making criminal threats. Defendant now contends:

Defendant Brad Jason Theobald was a high school teacher and coach who had a sexual relationship with a female student. He pleaded no contest to eight sexual offenses. The court sentenced him to eight concurrent terms of two years in prison. The court spared defendant from being required to register as a sex offender under section 290. On appeal, defendant challenges the prosecutions use of a detectives hearsay testimony at the preliminary hearing and the courts denial of his motion to suppress evidence of an email from the victim to defendant. Defendant also argues his sentence should have been 16 months, not two years. Court reject these contentions and affirm the judgment.

Defendant Charles James Lockhart was convicted of eight counts of lewd and lascivious conduct with a child under 14 (Pen. Code, 288, subd. (a)), following a trial by jury, and was sentenced to a term of 22 years in state prison.

Here unfolds a cautionary tale about the dangers of new friends and the Internet for both victims and perpetrators.

Andrew Paladino first became acquainted on-line with defendant Clinton Jackson, portraying himself as Super-Thugg, on airG.com, a mobile social network provider. When the two men made plans to meet and smoke marijuana, defendant lured Paladino to an apartment parking lot, pulled a gun on him, and relieved him of $60 and his cell phone. Paladino was able to identify defendant, in part because his on-line profile for Super-Thugg included his photograph, and also because Super-Thugg sent Paladino a gloating message immediately after the robbery.
A jury convicted defendant of second degree robbery ( 211) and unlawful possession of a firearm by a felon. ( 12021, subd. (c)(1).) Additionally, the jury found true the allegation concerning the use of a firearm in the commission of the robbery. ( 12022.53, subd. (b).)
The court sentenced defendant to a total prison term of 13 years: three years for robbery; two years concurrently for unlawful firearm possession; and a 10-year enhancement for the firearm use.
On appeal, defendant raises a number of issues involving the firearm enhancement, the pretrial identification, CALCRIM Nos. 220, 222, and 226, Griffin error, and evidence of other crimes. Court reject defendants challenges and affirm the judgment.

A jury convicted defendant William Urciel of unlawful transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)), and made true findings on enhancement allegations that he had previously been convicted of a drug-related crime (Health & Saf. Code, 11370.2, subd. (c)), that he had previously served a prison term for a felony conviction (Pen. Code, 667.5, subd. (b)), and that he had previously been convicted of a serious or violent felony under the Strikes law. (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) He appeals, claiming the trial court abused its discretion (1) when it allowed the prosecution to introduce an uncharged prior crime as a similar act (Evid. Code, 1101, subd. (b)), and (2) when it denied defendants motion to strike the prior serious or violent felony conviction, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Court affirm.

Sheriffs deputies executed a search warrant at a residence and found Patrick James Williams and Ricky Lamar Stubbs, collectively referred to as defendants, along with 74.4 grams of cocaine base, digital scales, and packaging materials. The sum of $2,093 in cash was found in Williamss car. After a jury trial, the defendants were convicted of drug offenses, and Williams was sentenced to an aggregate term of seven years in prison, while defendant Stubbs was granted probation. Both defendants appealed. On appeal, defendant Stubbs seeks review of the sealed transcript of an in camera hearing conducted pursuant to his trial motion for disclosure of the identity of the confidential informant, whose information provided the basis for the search warrant. The People agree we should review the sealed transcript, and we have done so, finding no error. Defendant Williams has filed a brief in accordance with the procedures outlined in People v. Wende (1979) 25 Cal.3d 436.
Court affirm.

Defendant was convicted by jury of first degree residential burglary (Pen. Code, 459; counts 1 and 2);[1]unlawful taking or driving a vehicle, a Honda quad (Veh. Code, 10851, subd. (a); count 3); unlawful taking or driving a vehicle, a Jeep (Veh. Code, 10851, subd. (a); count 4); unlawful taking or driving a vehicle, a boat trailer (Veh. Code, 10851, subd. (a); count 5); grand theft of a Craftsman air compressor ( 487, subd. (a); count 6); and grand theft of a firearm ( 487, subd. (d)(2); count 7). In a bifurcated trial, the court found true a prior prison term allegation. ( 667.5, subd. (b).) The trial court sentenced defendant to an aggregate prison term of nine years four months. Defendant appealed his conviction and this court, in an unpublished opinion entered on May 12, 2008 (case No. E041835), reversed the judgment as follows: Defendants conviction for grand theft of the air compressor (count 6) was reduced to a conviction for petty theft ( 490), with all other convictions affirmed; defendants consecutive sentence on count 5 (unlawful taking or driving the boat trailer) was reversed under section 654, with directions the trial court ordered that defendants sentence on count 5 stayed; and defendants upper term sentences for burglary (counts 1 and 2[2]) were reversed under Cunningham[3]and remanded for resentencing on counts 1 and 2.
This court concluded there was Cunningham error on the ground the trial court imposed the upper term on count 1 based upon factual findings that the evidence showed planning and sophistication, and the takings and attempted takings were of great value.

Defendant and appellant Michael McDiarmid was charged with one count of failing to register as a sex offender at all residences at which he regularly resided (Pen. Code,[1]former 290, subd. (a)(1)(B),[2]count 1)) and one count of failing to register as a sex offender, having been previously convicted of failing to register (former 290, subd. (g)(2), count 2).[3] It was also alleged that defendant had served two prior prison terms ( 667.5, subdivision (b)), and that he had suffered one prior strike conviction for rape ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) Defendant pled guilty to counts 1 and 2 and admitted the two prior prison enhancement allegations and the prior strike. He also pled guilty in two other misdemeanor cases. The court sentenced defendant pursuant to a plea agreement to two years in state prison on count 1, doubled for the strike conviction, plus two years for the prior prison enhancements. The court sentenced defendant to four years on count 2, to run concurrently with the sentence on count 1, and 180 days in custody as to the two misdemeanor cases, also to run concurrently with count 1.
Defendant filed a notice of appeal indicating that he was challenging the validity of the plea and requesting a certificate of probable cause. The court granted his request for a certificate of probable cause. Court affirm.

P.D. (mother), the mother of A.R.1 and A.R.2, and A.R.1 and A.R.2 (individually child, collectively children) by the same presumed father, A.R. (father), appealed from a judgment obtained by respondent Riverside County Department of Public Social Services (respondent) terminating her parental rights to them. (Welf. & Inst. Code, 366.26.)[1] Mother filed an opening brief contending that the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.; 224 et seq.; Cal. Rules of Court, rule 5.480[2]. As to the inquiry and notice requirements, see 224.2, 224.3; rule 5.481(a), (b).) On October 22, 2009, the parties filed a joint application and stipulation for reversal with directions to order respondent to make proper inquiry, to comply with ICWA notice requirements, and to either conduct a new hearing under section 366.26 in conformity with ICWA if a tribe determines that the children are Indian children, or (2) reinstate all previous findings and orders if no response is received under ICWA or the tribes determine that the children are not Indian children. After our own careful review of the entire record, we conclude that the juvenile court did fail to comply with the inquiry and notice requirements of ICWA, and we reverse with the requested directions.

Because the defendant pled guilty prior to the preliminary hearing (Pen. Code, 859a), and waived his right to a presentence probation report, there is no information in the record about the nature of the offense. On May 12, 2009, a complaint was filed charging defendant with one count of corporal injury to a spouse resulting in a traumatic condition. (Pen. Code, 273.5, subd (a)(1).) On May 22, 2009, at a pre-preliminary hearing settlement conference, the trial court gave an indicated sentence of two years in prison. Over the Peoples objection, defendant entered a guilty plea to count 1, to the court, without the benefit of a plea bargain, but with the understanding he would be sentenced to prison for two years. He waived his right to a probation report and was immediately sentenced to a term of two years in prison.

In this matter, we have reviewed the petition and offered respondent and real parties in interest the opportunity to respond; no response has been received. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is, therefore, appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)