CA Unpub Decisions

On July 14, 2003, defendant Ronald Williams, Sr., was convicted in the Sacramento County Superior Court of possessing a controlled substance (case No. 03F00411). He was granted probation on terms that included a two-year suspended prison sentence, participation in drug treatment, and abstention from using or possessing illegal narcotics. The trial court also imposed fees and fines, including a $200 restitution fine, a $35 administrative fee, $4,970 in other fees and fines, and a $100 Proposition 36 fee.

Defendant Michael Dean Bispo appeals from his sentence after a violation of probation hearing. He was sentenced to seven years in state prison for three felony convictions, execution of sentence was stayed, and he was placed on probation. When defendant was subsequently found in violation of his probation, the trial court formally revoked probation, lifted the stay, and ordered defendant committed to serve the previously imposed prison sentence. On appeal, defendant claims the trial court erred in using three of his violations of probation at sentencing. He also claims the court should have considered the fact that there was no room for defendant in prison. Court shall affirm the judgment.

Convicted of numerous crimes arising out of two armed home invasion robberies, defendant Vadim Zakharchenko appeals, contending the case must be remanded for resentencing because: (1) the trial court was mistaken about its sentencing discretion; and (2) the trial court used an improper reason to justify imposition of consecutive sentences in one of the incidents. In the event we deem his second argument forfeited because he did not object in the trial court, defendant contends he received ineffective assistance of counsel. Finding no merit in defendants arguments, Court affirm the judgment.

On May 4, 2008, defendant Freddie Lee Moore, Jr., robbed an employee of Hot Dog on a Stick, while the employee was depositing the businesss daily earnings at an ATM. He pointed a handgun at her stomach and told her to give him the bag of money. She did and defendant ran away with the money. The bag contained over $1,000. A few days later, defendant went into a market, apparently to buy a drink. He placed the drink on the counter, shot the clerk in the face with a BB gun, and told the clerk to open the register and give him the money. The clerk did and defendant ran away with the money. On May 25, 2008, defendant entered a store, pointed a stun gun toward the victim, discharged it, and told her to, [G]ive me what you got. The clerk walked to the register with defendant following her and gave him $100 from the register drawer. Defendant took the money, stunned the clerk and ran. Later that day, defendant and a codefendant approached Frank Silva at the Boys & Girls Club, placed a hard object in the back of his neck and the codefendant said, Dont make a scene. Give me everything you got. Silva dropped his keys and defendants grabbed the keys and ran.

This case arises out of eight bank robberies committed in 2006-2007. A jury found Vincent Wayne Harper guilty of committing those robberies (Pen. Code,[1] 211) and found true an allegation that he suffered a prior serious felony conviction ( 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior strike conviction ( 667, subds. (b)-(i), 1170.12). The court sentenced him to an aggregate prison term of 27 years.
Harper appeals his convictions, contending (1) the June 26, 2007[2] hearing on his pretrial motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to replace his court-appointed counsel[3] (hereafter the June 26 Marsden hearing) was insufficient because the court[4] failed to conduct an adequate inquiry into his dissatisfaction with his trial counsel, and thus the court abused its discretion in denying his Marsden motion; and (2) the court[5] erred in failing to hold a second pretrial Marsden hearing on September 12 or September 17. Court reject these contentions and affirm the judgment.

A jury convicted Armando Ruiz, Sr., of evading an officer while driving recklessly (Veh. Code,[1] 2800.2, subd. (a), hereafter 2800.2(a).) Ruiz admitted a prior serious felony conviction, and the trial court sentenced Ruiz to 32 months in prison.
Ruiz raises three issues on appeal. First, he contends that because the crime of evading a officer with reckless driving is a specific intent crime, the trial court erred in giving an instruction on the union of act and intent that applies to general intent crimes. Second, he contends that the prosecutor engaged in misconduct during closing argument. Third, he contends that the trial court's minutes and the abstract of judgment improperly reflect a restitution fine and a parole revocation restitution fine, when the trial court did not impose those fines at sentencing.

A jury convicted James Richard Wood of (1) misdemeanor sexual battery (count 1: Pen. Code,[1] 243.4, subd. (e)(1), hereafter referred to as section 243.4(e)(1)), and (2) attempting to dissuade a victim and witness (here, Christina H.) from reporting a crime (count 2: 136.1, subd. (b)(1), hereafter referred to as section 136.1(b)(1)), which the court reduced to a misdemeanor. Count 1 was based on evidence that Wood, a photographer Christina hired to take more than 4,000 photographs of her in sexually suggestive and often nude poses for a calendar for her boyfriend, orally copulated her without her consent. Count 2 was based on evidence that, after Christina reported the incident to the police, Wood sent an e-mail to her warning her it was a crime to file a false police report, she would face a costly civil lawsuit if she continued her criminal complaint against him, and she should instruct a certain police detective to "back off" if she wanted to keep her graphic photographs private. The court suspended imposition of sentence, granted Wood summary probation, and committed him to the custody of the sheriff for 120 days.

A jury convicted Gilbert Sosa, Jr., of six drug related charges and two counts of felony child endangerment. He appeals, contending substantial evidence does not support his convictions. He also contends that the conviction on one of the drug counts should be reversed because the trial court failed to give a unanimity instruction. Finally, he asserts that the trial court should have stayed the sentences on three of the drug counts because they arose from an indivisible course of conduct. As Court shall explain, we agree that substantial evidence does not support Sosa's convictions for child endangerment; accordingly, Court reverse the judgment on those counts. Court reject Sosa's claim that the trial court erred by failing to give a unanimity instruction because the prosecution made a valid election during closing argument. Finally, the People concede the sentencing error, but assert that the appropriate remedy is to remand the matter for resentencing. Court agree. Otherwise, Court affirm the judgment.

A jury convicted Thomas John Filippone of assault with intent to commit rape (count 1, Pen. Code, 220, subd. (a)[1]); rape by a foreign object (count 2, 289, subd. (a)(1)); forcible oral copulation (count 3, 288a, subd. (c)(2)); and corporal injury to a spouse (count 4, 273.5, subd. (a)). The trial court sentenced him to six years in prison. Filippone contends the trial court erred and also violated his state and federal constitutional due process rights by (1) admitting evidence regarding his prior domestic violence; (2) instructing regarding propensity evidence; (3) admitting into evidence his text messages and voice mails; and (4) permitting a detective to testify as an expert regarding domestic violence. Court affirm the judgment.

April V. and Jorge T. appeal a judgment terminating their parental rights to their minor children, N.T. and Delilah T. (together, the minors), under Welfare and Institutions Code section 366.26. April contends: (1) because she was a minor, the court committed reversible error when it did not appoint her a guardian ad litem; (2) the court erred when it denied April reunification services for N.T.; (3) the court abused its discretion when it did not place the minors with their paternal grandmother; and (4) the court erred by summarily denying her section 388 petition for modification seeking to have the minors returned to her custody, or alternatively, further reunification services. April further contends, in a separate "Application for Constructive Filing of Notice of Appeal" (Application), that the court did not inform her of her right to seek appellate review after the court terminated services at a July 21, 2008, disposition hearing. Jorge argues that the court erred by denying his section 388 petition for modification seeking placement of the minors with their paternal grandmother. Jorge further joins in April's arguments. Court affirm the judgment and deny the Application.

In March 2008 Raymond Charles Jefferson entered a negotiated guilty plea to possessing cocaine base (Health & Saf. Code, 11350, subd. (a)) and admitted a strike (Pen. Code, 667, subds. (b)-(i)). The court placed him on three years' Proposition 36 drug treatment probation (Pen. Code, 1210.1). During 2008 Jefferson admitted two separate drug-related probation violations. Each time the court revoked and reinstated probation. In 2009 Jefferson admitted a third drug-related violation and waived his right to an evidentiary hearing. The court denied his motion to dismiss the strike and sentenced him to prison for two years eight months (twice the lower term). Jefferson appeals. Court affirm.

A jury convicted Ralph Luis Espinoza of two counts of assault with a semiautomatic firearm (Pen. Code,[1] 245, subd. (b); counts 1 & 2), of robbery ( 211; count 3), of four counts of being an ex-felon in possession of a firearm ( 12021, subd.(a); counts 4, 5, 6 & 7), and of being an ex-felon in possession of ammunition ( 12316, subd. (b)(1); count 8). The jury also found true allegations as to all counts, except count 7, that Espinoza committed each offense for the benefit of a criminal street gang ( 186.22, subd. (b)). As to counts 1, 2 and 3, the jury additionally found that Espinoza had personally inflicted great bodily injury ( 12022.7, subd. (a)) and had personally and intentionally discharged a firearm (within the meaning of 12022.5, subd. (a) regarding counts 1 & 2 and 12022.53, subd. (c) regarding count 3).
The trial court subsequently found true that Espinoza had suffered a prior serious felony conviction ( 667, subd.(a)), a prior strike conviction ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and two prior prison terms ( 667.5, subd. (b)). After denying a new trial motion, the court sentenced Espinoza to a total prison term of 60 years,[2]which was comprised of, among other things, consecutive terms for the counts 5 and 6 ex-felon in possession of a firearm convictions and a stayed one-year term for one of the prior prison terms.

A jury found Lonell Lee Williams guilty of being a felon in possession of a firearm. (Pen. Code, 12021, subd. (a)(1); all statutory references are to the Penal Code.) The jury was unable to reach a verdict on one count each of being a felon in possession of ammunition ( 12316, subd. (b)(1)) and possessing a firearm without the manufacturer's number ( 12094). The court declared a mistrial on those two counts. Williams waived his right to a jury trial on two prior prison term allegations ( 667.5, subd. (b)) and a strike ( 667, subds. (b)-(i)) and admitted the allegations. The court dismissed the prison priors and sentenced him to four years in prison: the two year middle term, doubled. Williams appeals. Court affirm.

W.E., mother of dependent minor Cody E., appeals a juvenile court order summarily denying her Welfare and Institutions Code[1] section 388 petition for modification in which she sought reunification services previously denied to her under section 361.5, subdivision (b)(13). W.E. contends she made a prima facie showing her circumstances had changed and the proposed modification was in Cody's best interests. Court affirm the order.