CA Unpub Decisions

Defendant Michael Dixon Flinders appeals from judgments of conviction entered after he pleaded guilty or no contest to several drug-related offenses in four cases. On appeal, he contends: (1) there was insufficient evidence to support an attorneys fee order of $200 in case No. CC643776; (2) Penal Code[1] section 654 bars imposition of sentence on counts one and two and reduction of the restitution and parole revocation fines in case No. CC892844; and (3) this court must conduct Wende[2] review in case Nos. CC762515 and CC647437. Court strike the attorneys fee order in case No. CC643776. We also stay execution of sentence on count two, and reduce the amount of the restitution and parole revocation fines in case No. CC892844. As modified, the judgments are affirmed.

The dispute between Louis DiFrancesco and Exatron, Inc. arising from their technology license agreement was resolved in a contractual arbitration. On May 31, 2007, this court affirmed the judgment confirming the arbitration award in favor of Exatron, which awarded Exatron $55,904 in attorneys fees and $8,346 in costs. (Exatron, Inc. v. DiFrancesco (May 31, 2007, H030262) [nonpub. opn.] (Exatron I).) Approximately nine months later, on February 25, 2008, Exatron filed a motion for supplemental attorneys fees and expenses. The trial court denied as untimely both the request for attorneys fees and expenses incurred post-arbitration through entry of judgment and the request for attorneys fees and expenses incurred on appeal. The court found timely Exatrons request for attorneys fees and expenses incurred in enforcing the judgment and awarded Exatron $42,195 in attorneys fees and $621 in costs.

A jury convicted defendant of first degree murder and found that he discharged a firearm, causing death. (Pen. Code, 187, 12022.53.) He was sentenced to 50 years to life. On appeal, defendant contends that his conviction should be reversed, or reduced to second degree murder, because there was insufficient evidence of premeditation and deliberation. He also argues that the prosecutor committed prejudicial misconduct by misstating the law of manslaughter, and that the trial court committed prejudicial error by refusing to instruct the jury on voluntary intoxication in connection with the subjective component of voluntary manslaughter, and by refusing to allow defense counsel to argue that defendants intoxication could be considered by the jury on the question whether he actually killed in the heat of passion. Court will affirm.

Defendant Carlos R. Harris was convicted by jury trial of attempted murder (Pen. Code, 187, 664), assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), and first degree robbery in concert (Pen. Code, 213, subd. (a)(1)(A)), and the jury found true an allegation that he had been armed with a firearm in the commission of these offenses (Pen. Code, 12022, subd. (a)(1)). Defendant admitted allegations that he had suffered a prior serious felony strike conviction (Pen. Code, 667, subds. (a), (b)-(i), 1170.12). At the original sentencing hearing, the trial court imposed a state prison sentence of 28 years and four months, which included a doubled upper term for the attempted murder count. In his first appeal, defendant contended, among other things, that the trial court had erred in imposing the upper term for the attempted murder count in the absence of jury findings on the aggravating circumstances. This court held that the trial courts error required a remand for resentencing in accordance with People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We reversed the judgment and remanded solely for resentencing.
Upon remand, defendant filed a Code of Civil Procedure section 170.6 peremptory challenge to the trial judge. His challenge was stricken. He also filed a Romero motion and a motion for a new trial. His Romero motion was denied, and the court found that it lacked jurisdiction to consider his new trial motion. The trial court resentenced defendant to precisely the same state prison term as it had originally imposed. Defendant again appeals. He contends: (1) his peremptory challenge was improperly stricken; (2) the trial court misunderstood the scope of its discretion in resentencing; (3) the trial court misunderstood the scope of its discretion and abused its discretion in failing to strike the strike prior; and (4) the trial court erred in denying his new trial motion. Court reject his contentions and affirm the judgment.

Defendant Lawrence Maschino appeals a restitution order pursuant to Penal Code, section 1202.4, on the ground that the amount ordered was not based on the crimes in this case.

Defendant Chester Edward Gutkowski was convicted after jury trial of possession of a controlled substance, possession of paraphernalia, and being under the influence of a controlled substance. On appeal, defendant asserts he was denied effective assistance of counsel, because his attorney failed to object to the prosecutions use of defendants silence as substantive evidence of his guilt. Defendant also argues the trial court erred in admitting evidence of his silence under Evidence Code sections 1221, and 352.

Defendant Jairo Bravopedroza pleaded no contest to attempted first degree burglary. At sentencing, the trial court imposed a $10 local crime prevention fine plus a $166.50 penalty assessment (Pen. Code, 1202.5) and awarded 64 days of presentence good conduct credit (id., 2933.1 [limiting presentence conduct credits for defendants convicted of a violent felony to 15 percent of worktime credit]). On appeal, defendant contends that (1) the crime prevention fine is not applicable to attempted crimes, and (2) he was not convicted of a violent felony and is entitled to full presentence good conduct credits. The People concede the points and Court agree the concession is appropriate. Court therefore modify and affirm the judgment.

J.N. appeals a dispositional order committing him to the Division of Juvenile Justice (DJJ). On appeal, he asserts he received ineffective assistance of counsel, and that the trial court abused its discretion in committing him to the DJJ.

Instead of filing a Wende[1] brief, defendant Carlos Jesus Ramirez argues to this court that the victim of his crime, who was stabbed and hospitalized, is not entitled to $40 in restitution for a sweatshirt and a belt that were not damaged during the crime, but no longer fit the victim because he lost weight while in the hospital. Court find this challenge to be devoid of merit and Court affirm.

Defendant Harold Edward Domingue pleaded no contest to attempted pimping. At sentencing, the trial court imposed a $30 criminal conviction assessment pursuant to Government Code section 70373, subdivision (a) (hereafter section 70373(a)). On appeal, defendant argues that the assessment was improperly imposed because the offense to which it relates was committed in 2008, and the law requiring that the assessment be imposed became effective in 2009. He concludes that the law is an ex post facto law as applied to him. Court disagree and affirm the judgment.

R.A., father of the child, appeals from orders terminating his parental rights and placing the child with maternal relatives. (Welf. & Inst. Code, 366.26, 395.) Appellant, in propria persona, contends the court erred in failing to place the child with paternal relatives and in terminating his parental rights prior to the time he could establish his innocence in his criminal proceedings. Court affirm.

The information in case No. CM027210 charged defendant Raymond Leonard Luper with possession for sale of cocaine base and methamphetamine, and also alleged recidivist enhancements. He entered a plea of no contest to possessing methamphetamine for sale in exchange for a sentence of no more three years in prison, and dismissal of the other count and the enhancements. He failed to appear for sentencing. The amended complaint in case No. CM027718 charged defendant with the felony of failure to appear while on bail and an enhancement for his failure to appear, and also alleged recidivist enhancements. The trial court accepted his plea of no contest to failing to appear while on bail in exchange for a sentence of no more than three years in prison and dismissal of the enhancements. The court allowed defendant personally to request that he wished to withdraw his plea in the earlier case. It denied the request, imposing the upper term for the drug offense and a consecutive term for the failure to appear. Defendant did not request a certificate of probable cause for his appeal. Defendant contends the trial court should have interpreted his request to withdraw his plea as a request to appoint new counsel, and thus erred in failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden). Court dismiss the appeal.

Defendant assaulted his live-in girlfriend, pulling her from a bed and dragging her across the floor, by the hair. Convicted of domestic violence crimes and sentenced to 11 years 8 months as a result of the current crimes, as well as prior prison terms and probation violations, defendant appeals. He asserts (1) the evidence was insufficient to sustain a conviction for assault with force likely to cause great bodily injury, (2) a domestic violence fine must be stricken, and (3) the abstract of judgment contains a clerical error. We conclude that the latter two contentions have merit but the first one does not. Accordingly, Court modify and affirm the judgment.

The complaint alleged that on or about October 5, 2008, defendant Eugene Franklin Carlisle, a convicted felon, possessed a firearm (count one); carried a concealable, unregistered firearm (count two); carried a loaded firearm in public (count three); and resisted a peace officer (count four). (Pen. Code, 12021, subd. (a)(1), 12025, subd. (b)(6), 12031, subd. (a)(2(F), 148, subd. (a)(1).)[1] The complaint alleged a strike. ( 667, subds. (b)-(i), 1170.12.) An amended complaint added seven prison term priors. ( 667.5, subd. (b).) At the preliminary hearing, testimony by two peace officers showed that early on the morning of October 5, 2008, they were on patrol when they saw a vehicle with expired registration tags. They signaled the vehicle to stop, and after a short pursuit the vehicle stopped and the passenger (defendant) fled. As defendant scaled a wall, a handgun fell out of his clothing. Defendant was captured with the aid of a canine officer. The gun was a Ruger nine-millimeter pistol, loaded with four hollow-point bullets, and it was not registered to defendant.