CA Unpub Decisions

The trial court granted defendant Robert Nathaniel Carrs motion for self-representation. (Faretta v. California (1975) 422 U.S. 806 (Faretta)). Thereafter, a jury found him guilty of conspiring to sell and distribute a controlled substance (Pen. Code, 182, subd. (a)(1)[1] -- count 1); transporting cocaine (Health & Saf. Code, 11352, subd. (a) -- count 2); and transporting cocaine base (id. -- count 3). The jury found not true an allegation defendant was armed with a firearm during the commission of count 1 within the meaning of section 12022, subdivision (a)(1). In a bifurcated proceeding, the jury found true allegations defendant had three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). Defendant was sentenced to an aggregate term of 13 years in state prison, consisting of: four years (the middle term) on count 2; a concurrent four years (the middle term) on count 3; four years (the middle term) on count 1, stayed pursuant to section 654; plus three years for each of his three prior convictions. Defendant appeals. Defendant contends the trial court prejudicially erred in allowing him to represent himself and in striking his testimony after he refused to answer questions on cross-examination. He also claims that his conspiracy conviction is not supported by substantial evidence, his sentence on count 3 should have been stayed under section 654, and the jury instructions precluded the jury from considering the lack of evidence in determining whether he was guilty of the charged offenses beyond a reasonable doubt. Court shall conclude that none of defendants contentions has merit, and therefore, affirm the judgment.

Either codefendant Carline Balbuena, whose self-chosen rummy name was Queen of the Damned, or defendant James Morris, aka Ultimate Evil, delivered the fatal blows to Balbuenas three-year-old son, Keith Carl Balbuena (KC). The jury convicted them both of murder, but we cannot ascertain from the verdicts who perpetrated and who aided and abetted the murder, particularly in light of overwhelming evidence that either or both abused the child over a long period of time, and either or both of them could have caused his tragic death.

Defendant was sentenced to 26 years to life in prison following his conviction for burglary and petty theft with a prior, and the finding of two strike priors and one prior prison term. He appealed, contending the trial court erred in failing to appoint counsel to represent him when the court declared a doubt as to defendants competency. In People v. Robinson (2007) 151 Cal.App.4th 606 (Robinson I), this court agreed defendant was entitled to counsel at the competency hearing. We reversed and remanded for a retrospective competency hearing, at which counsel was to be appointed for defendant. If defendant was found to have been competent to stand trial, the judgment would be reinstated. (Robinson I, at p. 619.)On remand the trial court held a retrospective competency hearing, at which defendant was represented by counsel. The court found defendant had been competent at trial and reinstated the judgment. Defendant appeals, contending the denial of his right of self-representation at the retrospective competency hearing was reversible per se and that the trial court erred in excluding defendants lay opinion that he became mentally ill before trial. In a supplemental brief, defendant contends the trial court erred in placing the burden of proof as to his incompetency on defendant. Court affirm. The trial court properly appointed counsel to correct the earlier error, regardless of whether defendant was subsequently competent to waive counsel. Any error in excluding defendants lay opinion was harmless. The trial court did not err in placing the burden of proof of incompetence on defendant.

Following a bench trial, the trial court convicted defendant Daniel Louis Snowden of two counts of forcible rape (Pen. Code, 261, subd. (a)(2)),[1]kidnapping to commit rape ( 209, subd. (b)(1)), false imprisonment ( 236), and assault with a deadly weapon ( 245, subd. (a)(1)), while sustaining firearm and one one-strike allegations ( 667.61, subds. (d)(2), (e)(4), (e)(5), 12022.5, subd. (a), 12022.53, subd. (b)). Defendant was sentenced to a prison term of 50 years to life plus 13 years. On appeal, defendant contends: (1) his jury trial waiver was invalid; (2) insufficient evidence supports his false imprisonment conviction; (3) the false imprisonment conviction must be reversed as a lesser included offense of forcible rape; (4) the court did not understand its discretion to impose concurrent life terms; and (5) his life term for kidnapping to commit rape was unauthorized. Court shall order a correction to the abstract and affirm.

A jury convicted defendant Jesse Mendoza Olivares of forcible rape (Pen. Code, 261, subd. (a)(2)), and the court sentenced him to six years in prison. On appeal, defendant contends the exclusion of a prior sexual assault allegation by the victim violated his rights to due process and confrontation, and there is insufficient evidence to support his rape conviction. Court shall affirm.

A jury found defendant William Swanigan guilty of murder (Pen. Code, 187, subd. (a))[1]and attempted robbery ( 211/664), and further found he personally discharged a firearm causing great bodily injury during the commission of both offenses ( 12022.53, subd. (d)), and that the murder was committed during the commission of the attempted robbery ( 190.2, subd. (a)(17)). The court sentenced defendant to life in prison without the possibility of parole, plus 25 years to life, and imposed various fees and fines.
On appeal, defendant contends (1) there was insufficient evidence to support the attempted robbery conviction, (2) the courts admission of evidence of defendants prior uncharged conduct prejudiced defendant and violated his right to due process, (3) the life sentence without the possibility of parole based on the attempted robbery-murder special circumstance violated defendants rights under the Eighth and Fourteenth Amendments of the United States Constitution, (4) the $200 parole revocation fine ( 1202.45) was improper given the life sentence without the possibility of parole, and (5) the $10 local crime prevention program fee ( 1202.5) is not applicable for attempted crimes and is therefore improper. Court shall strike the parole revocation fine and the local crime prevention fine and otherwise affirm the judgment.

A jury convicted defendant Taurus Eugene Green of forcible rape (Pen. Code, 261, subd. (a)(2)) and two counts of sexual penetration with a foreign object (Pen. Code, 289, subd. (a)(1)). The court sentenced defendant to 12 years in prison.
On appeal, defendant contends he received consecutive sentences in violation of his rights to due process and jury trial, and the trial court undercounted the pretrial custody credits. Agreeing that the court miscalculated the custody credits, Court modify the judgment and affirm the judgment as modified.

The trial court found defendant Francs Eugene Hansen, also known as Thomas Hansen, to be a Sexually Violent Predator (SVP). (Welf. & Inst. Code, 6600 et seq.)[1] The trial court committed him to the Department of Mental Health (Department), and he timely appealed. On appeal, defendant contends no substantial evidence supports the SVP finding, and the SVP statutes are infirm for several reasons. Court affirm.

A jury found that the prosecution had not proved beyond a reasonable doubt that defendant Vadim Moshkovskiy possessed methamphetamine for sale; thus, the jury convicted him of the lesser included offense of simple possession of methamphetamine. At sentencing, the trial court, applying the lesser standard of proof by a preponderance of the evidence, found that defendants crime was more than simple possession. Therefore, the court concluded defendant was ineligible for Proposition 36 probation. Instead, the court suspended imposition of sentence and placed him on formal probation with terms that required him to serve 180 days in county jail and participate in a drug rehabilitation program.
On appeal, defendant contends the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution, by denying him Proposition 36 probation based on a fact not proved to a jury beyond a reasonable doubt. He also claims the evidence does not support the courts finding that he possessed methamphetamine for sale. Court shall affirm the judgment (order of probation).

After hearing evidence that defendant Lawrence Richard Gibson pushed and kicked his 76-year-old mother, and that her wrist was broken during the fight, a jury convicted him of elder abuse under conditions likely to produce great bodily injury (Pen. Code, 368, subd. (b)(1))[1] and assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)). It also found true allegations that the victim actually suffered great bodily injury ( 368, subd. (b)(2)), and that defendant personally inflicted the injury ( 12022.7, subd. (c)). The court sentenced defendant to a prison term of eight years.
On appeal, defendant contends the courts order that he pay $2,440 in public defender fees must be reversed because the trial court failed to follow the statutory procedures required before such an order may be imposed. The People correctly concede the error.

Following a contested jurisdiction hearing, the Sacramento County Juvenile Court found that minor J. S. came within the provisions of Welfare and Institutions Code section 602 in that he unlawfully drove upon a highway in willful and wanton disregard for the safety of persons and property, and that he proximately caused bodily injury to A. D. and Andrea Thomas. The court granted the minors motion to dismiss two related counts. He was adjudged a ward of the court, placed on probation, and released to his own care and custody because he had just turned 18 years of age.[1] The court found the maximum confinement time to be one year four months. The minor was ordered to pay a $50 restitution fine, and the court retained jurisdiction on the issue of victim restitution. Following a contested hearing, the court ordered the minor to make restitution to Thomas in the amount of $35,232.84. The minor contends, and the People concede, the maximum term of confinement set forth in the minute order must be stricken. The minor further contends the victim restitution award must be reduced to exclude certain medical expenses and costs of selling personal property. Court shall modify the judgment by striking the maximum term of confinement.

Defendant Stephen Michael Crane pled no contest to three counts and admitted an on-bail enhancement as to one of them in three consolidated cases in return for a stipulated state prison sentence of seven years four months. He then moved to withdraw his plea, claiming he had entered it under duress because his counsel was unready to defend the last filed case. After holding a Marsden hearing at which defendant and counsel testified, the court denied the motion and imposed the previously agreed sentence. Court affirm.

Defendant Elvis Perez entered a negotiated plea of no contest to an assault charge after he hit the victim in the head with a Maglite flashlight (Pen. Code, 245, subd. (a)(1)). In exchange, a misdemeanor vandalism charge for his alleged damaging of the window of the victims van was dismissed. Defendant was sentenced to three years in state prison. At a postjudgment hearing, the court ordered defendant to pay victim restitution of $167.85, of which $80 represented damage to the window. The court made this order notwithstanding defendants objection that he had neither been convicted of vandalizing the victims van window, nor had he entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, permitting the court to consider dismissed charges.

Defendant faces charges of 11 felonies and 3 misdemeanors in 3 pending cases. In each case, his 1998 conviction for making criminal threats (Pen. Code,[1] 422) is alleged as a prior serious or violent felony (a strike) under sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d). Defendant brought a motion to strike this allegation or alternatively to withdraw his plea in the 1998 case. He argued that he entered a plea of guilty to section 422 based on the understanding that it was not a serious or violent felony. The subsequent passage of Proposition 21 made that understanding incorrect. The trial court denied the motion and defendant appeals. He contends the trial court abused its discretion because he was misinformed as to the consequence of his 1998 plea. Court find defendant has failed to show he is entitled to withdraw his plea and affirm.