CA Unpub Decisions

A jury convicted Jason Edward Green of (1) assault by means likely to produce great bodily injury (count 1: Pen. Code,[1] 245, subd. (a)(1)); (2) battery with serious bodily injury (count 2: 243, subd. (d)); and (3) failure to appear while released on bail (count 4: 1320.5) in Superior Court of San Diego County case No. SCD189008.[2] The jury found true the count 1 allegation that Green personally inflicted great bodily injury upon the victim in violation of section 12022.7, subdivision (a)). Green admitted allegations that he had suffered two prior serious felony convictions ( 667, subd. (a)(1), 1192.7, subd. (c)), and a prior strike ( 667, subd. (b), 1170.12). In this case, the court sentenced Green to a total prison term of 15 years four months. During the sentencing hearing, the court also sentenced Green in case No. SCD204073 to a consecutive prison term of three years four months, resulting in an aggregate term of 18 years eight months.

Sophia Ortiz entered a negotiated guilty plea to assault with force likely to produce great bodily injury (Pen. Code,[1] 245, subd. (a)(1)) and admitted she had a prior serious/violent or strike conviction within the meaning of section 667, subdivisions (b) through (i). As part of the plea bargain, the prosecutor agreed to dismiss an allegation that Ortiz personally had used a deadly weapon, to wit, a knife, during the assault ( 1192. 7, subd. (c)(3)), which would have made the current offense a strike. The plea bargain also called for the sentence to run concurrent with the sentence she received for a parole violation.
The trial court denied Ortiz's motion to withdraw her guilty plea. At sentencing, the court denied Ortiz's Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion to dismiss the prior strike allegation, and sentenced her to six years in prisonthe mid-term of three years for the assault count doubled under the Three Strikes law. ( 667, subd. (e)(1).)

Appellant Fernando F. Velarde contends he received ineffective assistance of counsel that led to his plea of guilty and sentence of probation. Velarde appeals the trial court's order denying his motion to withdraw his plea, and separately petitions for a writ of habeas corpus. The direct appeal and the writ are consolidated for disposition.
As we explain, we conclude his trial counsel's performance was not deficient and, in any event, Velarde was not prejudiced even assuming his counsel's performance fell below an objective standard of reasonableness. We therefore affirm the trial court's order denying his motion to withdraw his plea and deny his writ petition.

At an adjudication hearing, the juvenile court found true the allegations that appellant Luis D., a minor, aided and abetted in the commission of misdemeanor commercial burglary in violation of Penal Code section 459 and petty theft in violation of Penal Code section 484. The court made Luis a ward of the court, under Welfare and Institutions Code section 602, and placed him on probation.

Defendant Robert A. Smykowski, an attorney, prepared an inter vivos trust agreement for Lucy Hoffman (the decedent). The trust agreement granted plaintiff Diana Dean a life estate in specified real property (the property). Dean sued Smykowski, alleging in her first amended complaint that Smykowski failed to exercise reasonable care in performing legal services for the decedent by (1) failing to draft the trust agreement in a manner consistent with the decedent's testamentary intentions, and (2) failing to advise the decedent that the trust agreement was inconsistent with those intentions. The gravamen of Dean's pleading is that decedent intended to give her the property in fee simple, not a life estate with the remainder going to other beneficiaries.

A jury found Juan Padilla to be a sexually violent predator (SVP). He was recommitted to an indeterminate civil commitment term under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, 6600-6604.)
Padilla contends insufficient evidence supported the finding he is an SVP; specifically, the evidence did not "properly take into account his age and change in circumstances and the use of questionable actuarial tables resulted in an erroneous decision that he poses 'a substantial and well founded risk' of reoffending." He further contends that the use of "underground regulations" to make the initial determination that he is an SVP undermined the proceedings and therefore his commitment was illegal. Court affirm the judgment.

In September 2007 Michael Joseph Hudon was arrested after he evaded the police during a late-night car chase and then attacked one of the officers, breaking his nose, after the officers executed a traffic stop. At trial, Hudon's defense was that he must be completely relieved from criminal liability because when he committed the allegedly criminal acts, he was unconscious due to involuntary intoxication. Specifically, he claimed that as a result of ingesting the prescribed sleep-aid medication Ambien before he went to bed on the night of the incident, he was unconscious both when he drank an excessive amount of alcohol and when he drove his car and punched the police officer.

A jury convicted Salvador Zamudio of rape by a foreign object (count 1), forcible oral copulation (count 2), burglary (counts 3 & 6), robbery (count 4), and kidnapping (count 5). It also found true all the special allegations set forth in the information, including allegations that the sex offenses in counts 1 and 2 were committed with the use of a dangerous or deadly weapon, during the commission of a burglary, and that Zamudio kidnapped the victim. (Pen. Code, 667.61, subds. (a), (c) & (e)(1), (2) & (4); undesignated statutory references are to the Penal Code.) The court sentenced Zamudio to a term of 25 years to life plus 14 years 8 months.

On appeal, Zamudio challenges the sufficiency of the evidence to support the kidnapping conviction in count 5, the true finding of kidnapping under section 667.61, subdivision (e)(1) in counts 1 and 2, and the robbery conviction in count 4. In addition, Zamudio contends that the court erred in instructing the jury on kidnapping and by failing to stay the robbery sentence in count 4. The Attorney General agrees with Zamudio that he is entitled to one additional day of presentence custody credit.

As we explain, the court erred in instructing the jury on kidnapping and in failing to stay the robbery sentence. Accordingly, we reverse the conviction of count 5, strike the true finding of kidnapping in counts 1 and 2, strike the deadly weapon enhancement, and direct the court on remand to stay either the sentence for burglary in count 3 or robbery in count 4, and correct the abstract of judgment to add one day of presentence custody credit. Court affirm the judgment in all other respects.

In April 2007 Vicente Liboon Foster pleaded guilty to assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1).[1] The remaining charges were dismissed, and the court sentenced Foster to three years in state prison. In September 2008 Foster was released by the California Department of Corrections and Rehabilitation and detained by the U.S. Department of Homeland Security, Bureau of Immigration and Customs Enforcement, on an immigration detainer. Deportation proceedings commenced as a result of Foster's assault with a deadly weapon conviction. In January 2009 Foster filed a motion to vacate the judgment on the ground the trial court failed to properly advise him under section 1016.5 of the possible immigration consequences. The court denied the motion.

Michael Acron entered negotiated guilty pleas to three counts of aggravated sexual assault of a child (Pen. Code, 269). Under the plea agreement, the prosecution agreed to dismiss four other counts of aggravated sexual assault of child, four counts of having committed a lewd act upon a child under the age of 14 and two counts of sodomy with a child under the age of 10, along with various allegations. The parties stipulated to a prison term of 45 years to life. The trial court sentenced Acron in accordance with the plea bargain stipulation.

Nicole T. appeals the findings and orders entered at the permanency planning selection and implementation hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error. In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny her requests to review the record for error and to address her Anders issue. (Anders v. California (1967) 386 U.S. 738.) Nicole's counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied.

Robert and Judy Baxter appeal a judgment of dismissal as to defendant Residencial Perla Sociedad Annima de Capital Variable,[1]dba Vista Playa de Oro, for failure to prosecute, pursuant to Code of Civil Procedure sections 583.210 and 583.250.
Court conclude that the record shows that service of the summons and complaint and filing of the proof of service were accomplished within the statutory period provided in section 583.210. Consequently, we reverse the judgment and order the complaint reinstated as to this defendant.[3]

A jury convicted defendant, Ernesto Perez, of three counts of home invasion robbery in concert (Pen. Code, 211 & 213, subd. (a)(1)),[1]and one count each of attempted home invasion robbery in concert ( 664, 211 & 213, subd. (a)(1)) and assault by means of force likely to cause great bodily injury ( 245, subd. (a)(1)). In connection with each of the offenses, the jury found true an allegation that the crime had been committed to benefit a criminal street gang ( 186.22, subd. (b)(4)(c)) and the assault had resulted in the infliction of serious bodily injury ( 12022.7, subd. (a)). Almost five years after the verdict, the trial court granted a new trial. The People here appeal that order. We agree with the People that the granting of the new trial was an abuse of discretion and we reverse the order.

A jury convicted defendant, Cresencio Solano, of robbery (count 1Pen. Code, 211);[1]spousal abuse (count 3 273.5); spousal battery, the lesser included offense of count 3 (count 3 243, subd. (e)(1); and battery (count 4 242). On appeal, defendant makes four contentions: (1) the courts instruction of the jury with CALCRIM No. 318 (prior inconsistent statements) impermissibly allowed the jury to consider the victims prior statements for the truth of the matters asserted without explicitly requiring that it find the statements were inconsistent with her testimony at trial; (2) defendants constitutional due process rights were violated when he was shackled during trial; (3) the cumulative effect of the two aforementioned alleged errors resulted in the denial of defendants due process rights; and (4) the conviction for the lesser included offense on count 3 must be stricken because the jury convicted defendant of the greater offense. The People concede the last issue. Court agree. Therefore, we shall direct the superior court to strike defendants conviction for spousal battery. In all other aspects the judgment is affirmed.