CA Unpub Decisions

At about 6: 00 a.m. on April 6, 2007, Rex Williams went to the Globe Motel with appellant, Manuel Zubiate, Jr., where he met a woman named Christi Collins. After arriving at the motel, Williams went to an ATM to get money to give Collins $20 for oral sex. When he returned, Zubiate told him Collins wanted him to take a shower to freshen up. As Williams was showering, Zubiate entered the bathroom and struck Williams several times with a roofers hatchet. Williams was struggling with Zubiate when someone struck Williams in the mouth with a hammer, breaking his dentures. Eventually Zubiate and Collinss son told Williams to empty his pockets. Williams tossed his keys, wallet, and $40 on the floor. After Williams was told to get out of the room, he picked up his keys, went outside, and got in his car. Williams followed Collins and her son in his car when they left the motel walking and yelled at them to return his wallet. Collins and her son thumbed through Williamss wallet and her son then threw it in Williamss car through an open window. Williams suffered a concussion, bled profusely from his head, and was hospitalized for three weeks as a result of the assault.

Appellant, Erik Levi Jarquin was an inmate at Corcoran State Prison. On August 12, 2008, a correctional officer conducting random patsearches stopped Jarquin and searched him. The officer felt a lump on one of Jarquin socks and retrieved a razor with a plastic handle and an inmate kite. On October 1, 2008, the district attorney filed a complaint charging Jarquin with possession of a sharp instrument by a prison inmate (Pen. Code, 4502, subd. (a), count 1) and manufacturing a sharp instrument while a prison inmate (Pen. Code, 4502, subd. (b), count 2). The complaint also alleged that Jarquin had a prior conviction within the meaning of the three strikes law. (Pen. Code, 667, subds. (b)-(i).)

F.N. (mother) appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her daughters, one-year-old M. and five-year-old K.[1] She contends the court erred by effectively vacating a previous order it made for a bonding study and by rejecting her claim that termination would be detrimental. On review, Court affirm.

Defendant Lee Albert Samprath was convicted by a jury of one count of second degree burglary (Pen. Code, 459, 460, subd. (b)) and one count of attempted petty theft after having served a term in a penal institution for a previous conviction of petty theft (id., 664, 666). In a bifurcated proceeding, the trial court found true the allegations that Samprath had suffered three prior prison convictions within the meaning of Penal Code section 667.5, subdivision (b), specifically: (1) forgery (id., 470, subd. (d)); (2) petty theft with a prior theft conviction (id., 666); and (3) grand theft of property (id., 484, former 487.1 [now 487]). Samprath was sentenced to three years in prison for the second degree burglary and two consecutive terms of one year in prison for the two most recent prior prison convictions, for a total term of five years. The trial court stayed Sampraths sentence on the attempted petty theft conviction and stayed execution or struck the punishment for his oldest prison prior conviction. Samprath timely appealed.

Defendant M.S. appeals from the juvenile courts order of $300 in restitution to the Gilroy Unified School District. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case but raises no specific issues. Court notified defendant of his right to submit written argument in his own behalf within 30 days. He has not done so. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, court will affirm.

Carlton Paul Clay (Clay) appeals from an order executing sentence after the trial court found he had violated a probation condition precluding him from contact with minors. Clay contends: (1) the court violated his due process rights in relying upon the court probation officers statements, after the close of evidence, concerning the probation condition; (2) the notice of probation violation did not provide adequate notice of the manner in which he was ultimately held to have violated his probation; (3) there was insufficient evidence of the probation condition he violated; (4) the probation condition was unconstitutionally overbroad; (5) the court erred in executing the prison sentence, because the evidence did not support the finding that he was a danger to the community; and (6) defense counsel provided ineffective assistance of counsel. Court will affirm the order.

The minor, Gerardo M., appeals from a juvenile wardship proceeding under Welfare and Institutions Code section 602,[1] based on his participation with others in smashing the windows of a parked car while a two-year-old child was strapped in his car seat inside. Gerardo was found to have violated Penal Code sections 273a, subdivision (a) (child endangerment), and 594, subdivision (b)(1) (vandalism), and he was placed on two years supervised probation. He appeals the finding on child endangerment only, as well as requesting a remand because the juvenile court failed to recite that it knew the underlying offenses were wobblers when it chose to treat them as felonies. Because we find the evidence was sufficient to show that Gerardo aided and abetted both crimes, and the courts decision to treat the offenses as felonies reflected a conscious exercise of its statutory discretion, Court affirm the disposition and deny the request for remand.

Ashton Ivan Hurst appeals from the judgment entered following a jury trial that resulted in his conviction of first degree murder (Pen. Code, 187, subd. (a)). He was sentenced to prison for 25 years to life. Appellant does not challenge the sufficiency of the evidence to support the judgment. He claims he was denied a fair trial and his rights to counsel and to present a defense. (U.S. Const., 6th & 14th Amends.) He assigns as prejudicial error the trial courts refusal to give his pinpoint instruction on imperfect self-defense based on evidence of his delusional thinking and its exclusion of expert testimony regarding motive and evidence tending to show the assault upon appellant was in conformance with the victims character trait. He contends admission of his attorney-client communications deprived him of a fair trial and his right to counsel. He also contends the trial court abused its discretion in refusing to allow his choice of counsel to make objections to the prosecutors argument. Appellant lastly contends the cumulative effect of these multiple errors resulted in a fundamentally unfair trial.

Respondent Jinni Joy ONeill Hernandez and appellant Victor Hugo Hernandez were married in 1992, had one child (Liam Andres) in 1999, separated in 2003 and divorced per a judgment entered on August 23, 2005. Victor[1]was required under the judgment to pay $7,500/month spousal support and $3,000/month child support for Liam. In November 2007, Victor moved to terminate spousal support. He appeals from the order denying his motion. Court affirm.

A jury convicted Larry Johnson of corporal injury to a cohabitant (Pen. Code, 273.5, subd. (a)),[1]and the trial court found that Johnson had suffered a prior strike conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served three prior prison terms ( 667.5, subd. (b)). Johnson contends the prosecutor committed prejudicial misconduct in his opening statement and that the trial court erred in admitting evidence of prior incidents of domestic violence. Court disagree and affirm the judgment.

Kenneth Brown appeals the judgment entered after he was convicted by jury on two counts each of attempted willful, deliberate, premeditated murder (Pen. Code, 664/187, subd. (a));[1] assault with a firearm ( 245, subd. (a)(2)); and shooting from a motor vehicle ( 12034, subd. (c)); and one count each of possession of a firearm by a felon ( 12021, subd. (a)(1)) and possession of an assault weapon ( 12280, subd. (b)). On the counts for attempted murder, assault with a firearm, and shooting from a motor vehicle, the jury found true allegations that appellant (1) committed the crimes for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)); (2) was armed with a firearm in committing the offenses ( 12022, subd. (a)(1)); and (3) personally used a firearm ( 12022.53, subds. (b)-(e)). Also found true were allegations that appellant personally inflicted great bodily injury in committing the assaults ( 12022.7, subd. (a)).[2] The trial court sentenced him to a total state prison term of life with the possibility of parole plus concurrent terms of 25 years to life on each of the attempted murder counts. He contends (1) he received ineffective assistance of counsel; (2) the court erred in admitting a videotaped interview he gave shortly before the crimes were committed; (3) the court erred in allowing an expert to offer an opinion as to the meaning of his tattoos; and (4) the evidence is insufficient to support his convictions. He also alleges cumulative error. Court affirm.

Floyd Tutt appeals from the judgment entered upon his convictions by no contest pleas to two counts of second degree robbery (Pen. Code, 211, counts 2 & 4).[1] Appellant admitted that he used a firearm within the meaning of section 12022.53, subdivision (b) in connection with each count. Pursuant to a plea agreement, the trial court sentenced him to an aggregate state prison term of 16 years four months. Appellant obtained a certificate of probable cause and filed this appeal in which he contends that the trial court abused its discretion in accepting his admission of the firearm allegation when there was an insufficient factual basis for the admission.
Court affirm.

In 1999, Knolts Hutchinson was convicted by jury of simple assault (Pen. Code, 240, count 3)[1]as a lesser included offense of assault with a deadly weapon, and assault with a deadly weapon ( 245, subd. (a)(1), count 4).[2] The trial court found to be true the allegation that appellant had suffered two prior felony strikes within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). In January 2000, it denied appellants Romero[3]motion which sought to dismiss a strike in furtherance of justice pursuant to section 1385. The trial court sentenced appellant to state prison for 25 years to life on count 4, staying pursuant to section 654 imposition of sentence on count 3 and the prior prison term enhancements within the meaning of section 667.5, subdivision (b).

A jury convicted Cedric Johnson of first degree murder and attempted premeditated murder, both with attached findings that a principal discharged a handgun causing death, discharged a handgun, and used a handgun, and that the offense was committed for the benefit of a criminal street gang. The trial court sentenced Johnson to a total term of 50 years to life in the state prison. Court affirm the judgment.