CA Unpub Decisions

On July 31, 2008, appellant, Darius Darnell Edwards, was charged in an amended felony complaint with one count of committing robbery of an inhabited dwelling in concert with two or more other persons (Pen. Code, 213, subd. (a)(1)(A), count one),[1]three counts of robbery of an inhabited dwelling ( 212.5, subd. (a), counts two, three & four), and assault with a deadly weapon ( 245, subd. (a)(1), count five). The robbery allegations each alleged that Edwards personally used a firearm in the commission of the offense ( 12022.53, subd. (b)). On August 26, 2008, Edwards entered into a plea agreement in which he would plead no contest to count two and admit the gun use enhancement. Edwards would receive a four-year sentence on count two and a ten-year sentence for the enhancement. Edwards executed an advisement of rights, waiver, and plea form for felonies (plea form) acknowledging the terms of the plea agreement and his constitutional rights pursuant to Boykin/Tahl.[2] Edwards acknowledged the consequences of his plea and waived his constitutional rights in the plea form. Edwardss counsel executed a statement that he had reviewed the plea form with his client, explained each of his clients rights to him, discussed his clients case with him, answered his clients questions, reviewed the consequences of the plea agreement, and acknowledged a factual basis for the plea. At the change of plea hearing on August 26, 2008, the trial court confirmed the terms of the plea agreement with Edwards and counsel. Edwards acknowledged executing the plea form and reviewing his rights with his attorney. The parties stipulated to a factual basis for the plea based on the police reports and video surveillance. Edwards pled no contest to count two and admitted he personally used a gun. The remaining allegations were dismissed. On December 18, 2008, the court sentenced Edwards to a prison term of 14 years pursuant to the terms of the plea agreement. Edwards filed a timely notice of appeal, but did not obtain a certificate of probable cause.

On September 2, 2008, appellant, Pablo Humberto Astorga, was charged in an information with possessing narcotics in jail (Pen. Code, 4573.6).[1] It was further alleged Astorga had a prior serious felony conviction within the meaning of the three strikes law. On October 29, 2008, a jury found Astorga guilty of the allegation. Astorga waived his constitutional rights and admitted the prior serious felony conviction.
Astorga filed a request pursuant to People v. SuperiorCourt (Romero) (1996) 13 Cal.4th 497 (Romero) for the trial court to dismiss the prior serious felony allegation. On January 26, 2009, the court sentenced Astorga to prison for the midterm of three years, which it doubled to six years pursuant to the three strikes law. On appeal, Astorga challenges the trial courts imposition of the midterm sentence.

On September 25, 2008, appellant, Ronald Joseph Wallace, was charged in a first amended information with corporal injury to a spouse occurring within seven years of a prior conviction for the same offense (Pen. Code, 273.5, subd. (e), count one),[1]assault with a deadly weapon ( 245, subd. (a)(1), count two), attempting to dissuade a witness ( 136.1, subd. (a)(2), count three), and three counts of cruelty to a child by endangering the childs health ( 273a, subd. (b), counts four, five & six). The information alleged two prior prison term enhancements, a prior serious felony conviction in 2001 within the meaning of the three strikes law for spousal abuse ( 273.5) resulting in great bodily injury ( 12022.7, subd. (e)), and an enhancement for a prior serious felony conviction ( 667, subd. (a)(1)).

On August 21, 2008, appellant, Delmar Jewell Dixon, Jr., was charged in a felony complaint with three counts of robbery (Pen. Code, 211, counts one, two, & three),[1]three counts of assault with a firearm ( 245, subd. (a)(2), counts four, five & six), and giving false information to a peace officer ( 148.9, subd. (a), count seven). The robbery allegations each alleged that Dixon personally used a firearm in the commission of the offense ( 12022.53, subd. (c)). The assault with a firearm allegations alleged a personal gun use enhancement ( 12022.5, subd. (a)).

On December 10, 2008, Dixon entered into a plea agreement in which he would plead no contest to counts one and two and he would admit the gun use enhancements alleged as to those counts. Dixon would receive a two-year sentence on count one and a sentence of 20 years for the gun use enhancement. His sentences on count two and the enhancement alleged therein would be identical, but Dixon would serve them concurrently. The remaining allegations would be dismissed. Dixon executed an advisement of rights, waiver, and plea form for felonies (plea form) acknowledging the terms of the plea agreement and his constitutional rights pursuant to Boykin/Tahl.[2]

Dixon acknowledged the consequences of his plea and waived his constitutional rights in the plea form. Dixons counsel executed a statement that he had reviewed the plea form with his client, explained each of his clients rights to him, discussed his clients case with him, answered his clients questions, reviewed the consequences of the plea agreement, and discussed with Dixon the elements of the charged offenses and possible defenses.

At the change of plea hearing on December 10, 2008, the trial court confirmed the terms of the plea agreement with Dixon and counsel. Dixon acknowledged executing the plea form and reviewing his rights with his attorney. The court reviewed the consequences of Dixons plea with him and he acknowledged giving up his rights as set forth in the plea form. The parties stipulated to a factual basis for the plea based on the police reports and video surveillance. Dixon pled no contest to counts one and two and admitted he personally used a gun as alleged in each count. The court granted the prosecutors motion to dismiss the remaining allegations. On January 9, 2009, Dixon was sentenced to prison for 22 years on count one and the gun use enhancement pursuant to the terms of the plea agreement. He was given concurrent sentences on count two and the gun use enhancement alleged therein. Dixon filed a timely notice of appeal, obtaining a certificate of probable cause.

On November 27, 2008, Fresno police officers went to a Travelodge motel in Fresno on a report of a suspicious vehicle. The vehicle was covered with a thin coat of light brown mud and had been reported stolen on November 20, 2008. After the motel manager reported there were two people trespassing in a vacant room, the officers went to the room and found appellant, Ricardo Pedro Bojorquez, and his girlfriend, Ronica Padilla, in the room. Both were covered with the same light brown colored mud as the car. Paperwork belonging to Padilla was found in the car.
Bojorquez provided a false name and birth date. As he was being handcuffed and escorted to a patrol car, Bojorquez broke free and attempted to flee. He fell to the ground causing an officer to fall on top of him. Bojorquez moved his head up and struck the officer on the eye causing a large bruise and swelling. On December 2, 2008, the district attorney filed a complaint charging Bojorquez with receiving stolen property (count 1/Pen. Code, 496d, subd. (a)),[1]battery on a police officer (count 2/ 243, subd. (c)(2)), resisting an executive officer (count 3/ 69), providing false information to a police officer ( 148.9, subd. (a)), and five prior prison term enhancements ( 667.5, subd. (b)).

A.M. (Mother) appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her son, A. She challenges the courts finding that it was likely A. would be adopted and its rejection of her claim that termination of her rights would be detrimental to A. due to their parent/child relationship. On review, Court affirm.

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1]as to her daughter, C.A., and sons, R.N. and J.A. Court deny the petition.

Petitioner, in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) from the juvenile courts order setting a Welfare and Institutions Code section 366.26 hearing as to her daughter, A.M. We conclude her petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court will dismiss the petition as facially inadequate.

Defendant Ernest Gerald Benefiel was charged but acquitted of four counts of assaulting a police officer with a firearm.[1] (Pen. Code, 245, subd. (d)(1).)[2] The jury convicted him of four counts of the lesser included offense of assault with a firearm. ( 245, subd. (a)(2).) The jury found true the allegations defendant personally used a firearm during commission of the lesser included assaults in counts one and two. ( 12022.5, subd. (a).) As to the lesser included assaults in counts three and four, the jury found untrue the allegations defendant personally discharged a firearm during commission of the assaults. ( 12022.53, subd. (c).) The judge sentenced defendant to an aggregate term of 17 years and four months in prison. On appeal defendant contends: (1) He acted in self-defense as a matter of law, and the evidence was insufficient to show he did not act in self-defense; (2) The court improperly admitted evidence of other firearms in his possession; (3) The court abused its discretion by sentencing him to consecutive terms on all four counts; and (4) The court abused its discretion by sentencing him to the upper term on the firearm enhancement attached to count one. We hold the evidence was insufficient to prove beyond a reasonable doubt defendant did not act in self-defense. The judgment must therefore be reversed. As a result, Court do not address defendants remaining contentions.

Gustavo Adolfo Piedrasanta appeals from a judgment after a jury convicted him of numerous sexual offenses against his daughter, Jane Doe. He argues insufficient evidence supports one count of aggravated sexual assault of a child and the jurys finding he had substantial sexual conduct with a child as to another count. Court disagree and affirm the judgment.

Ward‑Askew Insurance Partners (Ward‑Askew) and Askew Kabala & Company (Askew‑Kabala) appeal from the judgment in favor of Draney Information Services Corporation (DISC), in this action involving a failed effort at selling a DISC subsidiary to Ward‑Askew. Judgment was entered after DISCs motion for summary adjudication on declaratory relief and breach of contract causes of action contained in Ward Askews cross‑complaint was granted, the trial court denied Ward Askews motion to amend its cross complaint, and the parties stipulated to dismiss remaining causes of action. On appeal, Ward Askew contends there were material issues of fact precluding summary adjudication. Court agree and reverse the judgment.

An armed security guard shot and killed Raymond Cazessus, defendant Benito Reyess fellow gang member, after defendant and Cazessus confronted and threatened the guard. A jury found defendant guilty of attempted murder, murder, and street terrorism, and also returned findings on the attempted murder charge that he personally discharged a firearm and committed it for the benefit of, at the direction of, or in association with a criminal street gang. Based thereon, the superior court sentenced defendant to 52 years to life in prison. Defendant challenges the sufficiency of the evidence on several grounds, attacks the trial courts instruction of the jury in two respects, and claims the court erred by denying his motion for a mistrial. Finding no prejudicial error, Court shall affirm the judgment.

Miguel Preciado Barron appeals from his conviction on one count of sale of a controlled substance and one count of possession of a controlled substance for sale. (Health & Saf. Code, 11351; 11352, subd. (a).) He contends: (1) he was denied effective assistance of counsel because his attorney failed to request a limiting instruction advising the jurors they could only consider evidence of his codefendants guilty plea for the purpose of assessing his codefendants credibility as a witness and not as substantive evidence of Barrons guilt; (2) the jury was improperly instructed with Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 358 because the instruction was applied to his exculpatory oral statements; and (3) there was cumulative error. Court reject his contentions and affirm the judgment.

Juan Pablo Garcia was convicted of unlawful possession of a billy club and sentenced to prison for two years and eight months. Garcia filed a pretrial motion to suppress (Pen. Code, 1538.5)[1] his statements and the physical evidence seized from his car, asserting he was unlawfully detained. The court denied the motion and this appeal followed. Garcia also argues the trial court erred in calculating his presentence custody credits. Court agree with this final contention and direct the trial court to modify the judgment to reflect the correct calculations. In all other respects, the judgment is affirmed as modified.