CA Unpub Decisions

Defendant James Daniel Dean was convicted by jury of committing lewd conduct with a child under age 14 (Pen. Code, 288, subd. (a)), unlawful intercourse by a person 21 years of age or older with a minor under 16 years of age (Pen. Code, 261.5, subd. (d)), child procurement (Pen. Code, 266j), witness dissuasion (Pen. Code, 136.1, subd. (b)(1)), and violation of a court order (Pen. Code, 166, subd. (a)(4); further section references are to the Penal Code). Sentenced to state prison for 12 years, defendant correctly contends his conviction for child procurement must be reversed due to instructional error and for lack of substantial evidence to support it. He also argues his conviction for witness dissuasion must be reversed because the trial court failed to instruct the jury on an element of the offense, and he is entitled to one more day of presentence custody credit. As Court will explain, the trial court erred when instructing the jury on the crimes of child procurement and witness dissuasion; the conviction for child procurement must be reversed due to the instructional error and because the evidence does not satisfy one of the elements of the crime; defendant was not prejudiced by the instructional error regarding witness dissuasion; and, on remand, the trial court can address the issue of sentencing credits.

A jury convicted defendant Diana Granier Latham of driving under the influence (Veh. Code, 23152, subd. (a); undesignated section references are to this code; count one) and driving with a blood alcohol content of 0.08 percent or more ( 23152, subd. (b); count two). In bifurcated proceedings before trial, defendant entered a plea of no contest to driving with a suspended license, a misdemeanor ( 14601.2, subd. (a); count three). After trial, defendant admitted a prior prison term allegation (Pen. Code, 667.5, subd. (b)) and two prior driving under the influence convictions. Sentenced to state prison, defendant appeals. She contends the trial court abused its discretion in imposing sentence by failing to afford her individualized and reasoned consideration. In failing to do so, the trial court, defendant asserts, violated her right to due process. Court affirm the judgment.

A jury convicted defendant Joseph Hathorne Nuccio of first degree murder and found he used a knife to commit the murder, and the trial court found defendant had served a prior prison term. (Pen. Code, 187, 667.5, subd. (b), 12022, subd. (b)(1).) The trial court sentenced defendant to state prison for 27 years to life and defendant timely filed this appeal. Defendant contends the prosecutor improperly failed to assist him in securing the presence at trial of a person defendant blamed for the murder, and the trial court improperly found the prior prison term allegation to be true. Court agree with the latter claim, but otherwise shall affirm the judgment.

After a judge and jury rejected an attempt by plaintiffs Gerald and Robin Toste (collectively, the Tostes) to oust their neighbors from easements on the Tostes property, the Tostes sued the Superior Court of El Dorado County (Superior Court) for inverse condemnation, claiming the Superior Court had effectively taken or damaged their land for a public use without compensation.
The Superior Court demurred; its demurrer was sustained; the Tostes appeal. Court shall affirm the judgment dismissing the Tostes action against the Superior Court.

After numerous grants of probation, defendant Francisco Clyde Tidwells most recent grant of probation was revoked when he failed to complete a two year drug rehabilitation program ordered by the court. The previously imposed sentence of 10 years eight months in state prison was then ordered executed. Defendant appeals that order. Court affirm the judgment.

A jury found defendant Joseph Anthony Singleton guilty of two counts of willful infliction of corporal injury. (Pen. Code, 273.5, subd. (a).)[1] In a bifurcated proceeding, the trial court found a prior prison term allegation true. The court denied probation and sentenced defendant to an aggregate term of five years in state prison.
On appeal, defendant contends (1) the trial court failed to instruct the jury on the reasonable use of force to counter false imprisonment, (2) the trial court violated defendants Sixth Amendment right to assistance of counsel when it sustained an objection to a portion of defendants closing argument, (3) defense counsels consent to withdraw jury instructions related to defense of property constituted ineffective assistance of counsel, (4) the court erred when it forc[ed] counsel to represent to the jury that the lesser included offense instructions were being given solely at [defendants] behest rather than as part of the courts obligation to so charge, and (5) the court committed prejudicial error by instructing the jury on flight pursuant to CALCRIM No. 372 in the absence of evidence to support that instruction. Court affirm the judgment.

Following the denial of his suppression motion (Pen. Code, 1538.5), defendant Jeffrey Eugene Bell pled no contest to receiving stolen property (Pen. Code, 496, subd. (a)) and possession of heroin (Health & Saf. Code, 11350, subd. (a)). The court sentenced him to seven years and four months in prison. On appeal, defendant contends the court erred in denying his suppression motion. Court shall affirm.

Convicted by jury of making a criminal threat and possessing cocaine for sale while armed, and sentenced pursuant to the Three Strikes law to 17 years in state prison, defendant appeals. He asserts that the judgment must be reversed because of instructional, sufficiency of evidence, due process, and sentencing errors. Finding no prejudicial error, Court affirm.

When police executed a search warrant at the home of defendant Robert Louis Field, they found him naked and kneeling on the bathroom floor attempting to flush methamphetamine, cash and other items down the toilet. Among other things seized by police were methamphetamine, digital scales, pay/owe sheets, plastic baggies and other drug paraphernalia, cash, a police scanner, surveillance cameras, and numerous firearms (some loaded). A jury found defendant guilty of possessing methamphetamine for sale (Health & Saf. Code, 11378) while personally armed with a firearm during commission of the offense. (Pen. Code, 12022, subd. (c).) After denying defendants motion to substitute counsel (People v. Marsden (1970) 2 Cal.3d 118), the court sentenced him to the middle term of two years, plus a consecutive three-year term for the weapon enhancement, for an aggregate term of five years in state prison. The court imposed a $1,000 restitution fine (Pen. Code, 1202.4) and a $1,000 parole revocation fine (Pen. Code, 1202.45) stayed pending successful completion of parole, and ordered that the other fees and fines recommended in the probation report would not be imposed.

Defendant Demetrius Leroy Verdun and his wife, D., were married in 2003 and separated in 2005. On July 15, 2005, defendant was supposed to return their son to D.s home after a scheduled visitation. Defendant was late getting to the house and, when he arrived, he came into D.s bedroom and threatened to kill her. He was rambling about other men she had dated. He grabbed her and held her by her face, grabbed her arms, pushed her down, and continued to threaten her. D. also alleged that defendant raped her.
The judgment is affirmed.

Appellants, the father and the relative caretaker of the minors, appeal from the juvenile courts orders removing the minors from the relative pursuant to a supplemental petition and terminating parental rights.[1] (Welf. & Inst. Code, 366.26, 387, 395; further statutory references are to this code.) They contend the juvenile court erred by sustaining the supplemental petition and removing the minors from placement with the relative. Concluding that appellants lack standing to raise the issue, Court dismiss the appeal.

After a mistrial and before a second trial, Adam Almieiro[1]admitted he had previously been convicted of a federal bank robbery that qualified as a prior serious felony conviction (Pen. Code,[2] 667, subd. (a)(1)), a violent prison prior conviction ( 667.5, subd. (a)), and also a strike under the Three Strikes Law ( 667, subd. (b)-(i), 1170.12). A jury subsequently convicted Almieiro of two counts of robbery ( 211) and found true allegations that he personally used a firearm in the commission of each crime ( 12022.53, subd. (b)). After denying motions for a new trial and to dismiss the strike prior, the trial court sentenced Almieiro as a second striker to prison for a total term of 26 years and four months.
Court affirm as modified to strike rather than stay Almieiro's prison prior enhancement and to correct the abstract of judgment to reflect he was sentenced under the two strike provisions of the Three Strikes law.

A jury convicted Theodore Wesley Swain of fraud in the offer of securities (Corp. Code, 25401 and 25540, subd. (b)[1]; counts 2, 3, 5, 6, 8, 9, 11, 13, 14, 16, 17, 18, 20, 22, 27); grand theft (Pen. Code, 487 subd. (a); counts 4, 7, 10, 12, 15, 19, 21, and 26) engaging in fraudulent securities schemes ( 25541 and 25540; counts 28-33); and theft against elders (Pen. Code, 368, subd. (d); counts 10, 15, and 19.) The jury found true allegations that his takings exceeded respectively $100,000 (Pen. Code, 1203.044 subd. (d); 1203.45; counts 4, 7, 12, 21); $500,000 (Pen. Code, 186.11, subd. (a)(2); counts 2-22; 26-33) and $2,500,000 (Pen. Code, 12022.6, subd. (a)(4); counts 2-22; 26-33.) The court sentenced Swain to 24 years in prison as follows: three years on count 3; eight consecutive one-year terms on counts 5, 8, 11, 13, 16, 20, 22, and 27; six consecutive one-year terms on counts 28 through 33; three consecutive years for the section 186.11, subd. (a)(2) enhancement and four consecutive years for the section 12022.6 subd. (a)(4) enhancement. Swain contends: (1) the trial court prejudicially erred in failing to sua sponte instruct regarding unanimity; (2) insufficient evidence supported the count 33 conviction and (3) under section 654, the trial court erred in imposing consecutive sentences on counts 2, 5, 8, 11, 13, 16, 20 and 22 and, separately, on counts 28 through 33. Court affirm the judgment.

A modification decision.