CA Unpub Decisions

Based on a shooting spree, a jury convicted defendant Don Lee Carskaddon of the first degree murder of his eldest brother at their mothers home, premeditated attempted murder of another brother and a lodger in the home, and shooting at that inhabited dwelling. It also convicted him of shooting at the inhabited dwelling of his former parents in law, and their premeditated attempted murders. It sustained various gun enhancements as well. The trial court sentenced defendant to prison for an 80 year determinate term and a consecutive minimum indeterminate life term of 78 years. On appeal, defendant argues the evidence is insufficient with respect to the first degree murder conviction to establish either premeditation or that he was still on his motorcycle when he fired the gun at his eldest brother (which were the alternate theories in the jurys verdict). He further contends that the evidence is insufficient to prove that he shot at his other brother and the lodger with the intent to kill them. Court shall affirm.

M. W. (the minor) was continued as a ward of the juvenile court after the court sustained an allegation of battery (Pen. Code, 242) following a contested jurisdictional hearing. The court committed the minor to the Sacramento County Boys Ranch, advised him that his maximum term of confinement was two years eight months, and stated that he was entitled to 51 days of custody credits. On appeal, the minor contends the juvenile court erroneously failed to award him custody credit for time he spent in custody on prior petitions, which were aggregated to arrive at his maximum confinement time. The People concede the error, and Court accept their concession.

Defendant Stuart Forrest Dent pled no contest to attempted first degree murder (Pen. Code, 187, subd. (a), 664, subd. (a))[1] and admitted he personally used a firearm ( 12022.53, subd. (b)) and personally inflicted great bodily injury ( 12022.7, subd. (a)). According to the factual basis set forth by the People at the time of defendants plea, the offense stemmed from an incident in which defendant, using a .22-caliber handgun, shot the victim in the face, resulting in extraction of the victims right eye and total blindness. Prior to sentencing, defendant filed a motion to withdraw his plea, which was denied. The trial court sentenced defendant to an indeterminate life term plus a determinate term of 13 years in state prison. Defendant appealed.

Father, H.S., appeals the termination of his parental rights to the minor, M.S. He contends there is insufficient evidence to support the finding that M.S. was adoptable. Court affirm.

A jury convicted Garrett G. Marker of assault by means likely to produce great bodily injury (Pen. Code,[1] 245, subd. (a)(1)) and battery with serious bodily injury ( 243, subd. (d)). In connection with the assault count the jury also found Marker personally inflicted great bodily injury within the meaning of sections 1192.7, subdivision (c)(8) and 12022.7, subdivision (a). In a subsequent proceeding the trial court found Marker had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)) and a prior serious felony conviction ( 667, subd. (a)(1)). The court sentenced Marker to 14 years in prison, consisting of the middle term of three years on the assault count doubled under the "Three Strikes" law, plus a consecutive three-year enhancement for personally inflicting great bodily injury and a consecutive five-year term for the prior serious conviction. The court imposed and stayed a concurrent six-year term for battery with serious bodily injury pursuant to section 654. Marker appeals, contending the court should have vacated his battery conviction rather than impose a stayed sentence.

A jury found defendant Candie Lee Pettie guilty as charged of two counts of indirect misdemeanor child endangerment (Pen. Code, 273a, subd. (b);[1]counts 1 and 2), based on an incident in which she left her two youngest children L. and J., ages three and five, in the care of her older daughter T., age 12. The jury found defendant not guilty of an additional charge of willfully resisting, delaying, or obstructing a peace officer in the discharge of his or her duties, a misdemeanor. ( 148, subd. (a)(1); count 3.) Defendant was placed on four years summary probation and appeals. Defendant claims the trial court prejudicially erred in failing to instruct the jury sua sponte on a material element, namely, the mental state or criminal negligence element, of the indirect misdemeanor child endangerment charges in counts 1 and 2. She claims the jury had to find she acted with criminal negligence, not merely general criminal intent, in order to find her guilty of indirect misdemeanor child endangerment. The trial court redacted the language concerning criminal negligence from CALJIC No. 16.170, the instruction it gave defining misdemeanor child endangerment, and instead instructed the jury it had to find defendant acted with general criminal intent. The People concede the instructional error but argue it was harmless beyond a reasonable doubt.

We agree with defendant that the trial court had a duty to instruct sua sponte on criminal negligence in counts 1 and 2. We further conclude the error was not harmless beyond a reasonable doubt in view of the entire record, including the evidence, the erroneous instruction, and the not guilty verdict on count 3. Although substantial evidence showed defendant acted with criminal negligence, the jury could have found her guilty in counts 1 and 2 based on evidence she acted only with general criminal intent, a less stringent mens rea standard. Accordingly, Court reverse the judgment.

alleged two counts of identity theft under Penal Code[1]section 530.5, subdivision (a) (counts 1 & 5); theft under section 484e, subdivision (d) (counts 2 & 6); second degree burglary under section 459 (counts 3 & 7); and forgery under section 484f, subdivision (a) (counts 4 & 8). On March 13, 2008, a jury convicted defendant on all counts. On April 15, 2008, the trial court sentenced defendant to the midterm of two years on count 1, and a consecutive term of eight months on count 7. The court imposed a section 654 stay as to the remaining convictions. The court then stayed the execution of the aggregate sentence of two years eight months, and placed defendant on probation on the condition that she serve one year in jail. Defendant appeals.

Defendant and appellant Luis Renato Bustos appeals from a jury verdict for vehicle theft (Veh. Code, 10851, subd. (a)) and resisting an executive officer (Pen. Code, 69). Court affirm.

R.J. (Father) appeals from the January 12, 2009, juvenile court orders denying his request to continue the Welfare and Institutions Code section 366.26[1]hearing for his son, J.M., born in February 2007 and currently age two, terminating parental rights to J.M., and placing him for adoption. Father contends only that the juvenile court abused its discretion in denying his request to continue the hearing. Court find no abuse of discretion and affirm the orders.

On March 10, 2008, a jury convicted appellant, Gary Dale Myers, Jr., of voluntary manslaughter (Pen. Code, 192, subd. (a)),[1]a lesser included offense of the first degree murder he was charged with, and found true allegations that Myers used a deadly weapon ( 12022, subd. (b)(1)). On April 8, 2008, the court sentenced Myers to an aggregate 12-year term, the aggravated term of 11 years on the substantive offense and a one year arming enhancement. On appeal, Myers contends: 1) the court abused its discretion when it imposed the upper term; and 2) the court violated the constitutional prohibition against ex post facto laws when it sentenced him pursuant to section 1170, subdivision (b) as amended in 2007. Court find merit in Myerss first contention and remand the matter to the trial court for resentencing. In all other respects, Court affirm.

On June 12, 2007, the Kern County District Attorney filed an amended felony information in the superior court charging appellant as follows:

Counts 1, 3, and 5 burglary (Pen. Code,[1] 460, subd. (b)) with four prior prison terms ( 667.5, subd. (b)); and Counts 2, 4, and 6 petty theft with a prior ( 666) with four prior prison terms ( 667.5, subd. (b)). On March 14, 2008, after a number of continuances, appellant declined a plea offer of four years imprisonment. On March 27, 2008, after the court ruled on numerous defense motions in limine, jury trial commenced.
On April 2, 2008, the jury returned verdicts finding appellant not guilty of count 4, and guilty as charged of the remaining five substantive counts. Appellant waived a jury trial of the special allegations and the court found the special allegations relating to the five remaining substantive counts to be true.

On June 9, 2008, appellant filed a statement in mitigation.

This is an appeal from judgment entered after the court sustained general and special demurrers to plaintiffs amended complaint, without further leave to amend. Court will affirm the judgment.

Petitioner was convicted of discharge of a firearm on June 24, 2008. After sentencing, according to petitioner, he instructed his trial counsel to file a notice of appeal on his behalf. When petitioner realized that counsel had failed to do so, whether by inadvertence or misunderstanding, on August 18, 2008, petitioner deposited a notice of appeal in the Wasco State Prison mailbox.

The juvenile court sustained the district attorneys petition against 16-year-old J.M. (see Welf. & Inst. Code, 602), finding to be true allegations he committed aggravated assault on two victims (Pen. Code, 245, subd. (a)(1))[1] and actively participated in a criminal street gang ( 186.22, subd. (a)), and further that he committed the assaults for the benefit of a criminal street gang ( 186.22, subd. (b)). Defendant challenges the sufficiency of the evidence to support the gang enhancement, arguing the prosecution failed to show his gangs primary activities qualified it as a criminal street gang. ( 186.22, subd. (f).) Defendant also disputes the sufficiency of a victims eyewitness testimony to establish he committed the substantive offenses. As we explain below, defendants arguments are without merit, and Court therefore affirm the juvenile courts order sustaining the petition against defendant.