CA Unpub Decisions

Defendant was charged with attempting to remove a firearm from a police officer (Pen. Code, 664, 148, subds. (a), (c); count 1), resisting an executive officer by force or violence (Pen. Code, 69; count 2), being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1); count 3), and being a felon carrying a loaded firearm (Pen. Code, 12031, subd. (a)(1); count 4). It was further alleged that defendant had five prior strike convictions. (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
Third, defendant claims the prosecutor committed Griffin/Doyle[2]error in cross-examining him and in closing argument. Fourth, he claims the use of an electronic stun belt on him during a critical part of the trial violated his constitutional rights to counsel, due process, and freedom from cruel and unusual punishment. Fifth, he claims the trial court abused its discretion in refusing to reduce his current felony offenses to misdemeanors and strike his five prior strike convictions for purposes of sentencing. Sixth and finally, he claims his 25 year to life sentences on counts 3 and 4 constituted cruel and/or unusual punishment under the federal and state Constitutions. Court disagree with defendant on each of these claims. Accordingly, Court affirm the judgment.

Defendant Jerome Francis Singleton (defendant) argues on appeal (1) that there was insufficient evidence to support the trial courts finding that he violated the terms of his probation; and (2) that the court abused its discretion by committing him to state prison instead of reinstating his probation. Court affirm.

By information, defendant was charged with the following two counts: count 1, evading a police officer (Veh. Code, 2800.2), a felony, and count 2, leaving the scene of an accident without giving notice of his name and address (Veh. Code, 20002, subd. (a)), a misdemeanor. The judgment is affirmed.

On May 19, 2008, prior to the commencement of the contested jurisdictional hearing, the juvenile court granted the motion of the prosecutor to dismiss counts 1 and 2 of the original petition filed on March 17, 2008, by the District Attorney of San Bernardino County. Thereafter, the juvenile court sustained count 3, a violation of Penal Code section 12101, subdivision (a)(1). As a result, the juvenile court determined that defendant, a 17 year old minor, came within the meaning of Welfare and Institutions Code section 602. At that time, the juvenile court also reduced count 3 from a felony to a misdemeanor pursuant to Welfare & Institutions Code section 702. The judgment is affirmed.

A jury convicted Arturo Renee Romero (appellant) of corporal injury to a cohabitant (Pen. Code, 273.5, subd. (a)),[1]torture ( 206), rape by force or fear ( 261, subd. (a)(2)), oral copulation by force or fear ( 288a, subd. (c)(2)), making threats with the intent to terrorize ( 422), and dissuading a victim of a crime from reporting ( 136.1, subd. (b)(1)). The jury found true that appellant personally inflicted great bodily injury in the commission of corporal injury ( 12022.7, subd. (e)). It acquitted appellant of attempted murder ( 664, 187, subd. (a)), attempted voluntary manslaughter ( 664, 192), and false imprisonment ( 236). In a bifurcated proceeding, the trial court found true the allegation that appellant had served a prior prison term ( 667.5, subd. (b)). The court sentenced appellant to life with the possibility of parole, plus a determinate term of 12 years 4 months. Appellant contends that the trial court abused its discretion when it denied his request to withdraw his Faretta[2]waiver and to appoint an attorney to represent him at trial. Court conclude the trial court did not abuse its discretion and affirm the judgment.

Appellant, Esteban M. Martinez, appeals from an August 7, 2007, order granting respondent, the Fresno Police Department, sanctions for appellants failure to appear at a noticed deposition. However, appellant has neither set forth any argument nor cited to any authority regarding this sanctions award. Rather, appellant requests this court to affirm a February 15, 2007, order that was not appealed from.
Appellant had the burden to demonstrate that the trial court committed reversible error when it imposed sanctions against him. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) Since appellant has failed to meet this burden, the order will be affirmed.

A jury convicted appellant John Aipio Saesee of the murder of Natividad Viscarra with special circumstances. The trial court sentenced Saesee to life without the possibility of parole. He contends the trial court failed to instruct the jury properly. The People concede the errors, but assert they were harmless. Court agree the errors were harmless and affirm the judgment.

A jury convicted Elisondo Madriz Chiprez of three counts of attempted murder (Pen. Code, 664, 187),[1]four counts of assault on a police officer with a semiautomatic firearm ( 245, subd. (d)(2)), one count of evading arrest (Veh. Code, 2800.2, subd. (a)), and one count of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)). Numerous enhancements were found true, including two prior convictions that constituted strikes within the meaning of section 667, subdivisions (b) through (i). The convictions arose out of a high-speed chase after Chiprez fled from a routine traffic stop and the ensuing standoff at a private residence that ended over 10 hours later. He was sentenced to a term well in excess of 100 years to life.
We will remand the matter to the trial court for further proceedings, the nature of those proceedings to be determined after the People decide whether to prosecute Chiprez for the attempted murder in count 2. In any event, the trial court must resentence Chiprez. The parties have raised several asserted errors that occurred at the sentencing hearing. Court address these issues to aid the trial court at the resentencing hearing.

Pursuant to a plea agreement, appellant Monte John Galvan pled no contest to attempted murder (Pen. Code, 187, 664; count 1)[1]and carrying a loaded firearm in a public place ( 12031, subd. (a)(1); count 5), and admitted enhancement allegations that in committing the former offense he personally discharged a firearm (12022.53, subd. (c)) and that in committing both offenses, he acted for the benefit of, at the direction of or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members ( 186.22, subd. (b)(1)(C)). The court imposed a prison term of 35 years, consisting of five years for the attempted murder, 20 years for the discharge-of-a-firearm enhancement and 10 years for the gang enhancement. The court also imposed a concurrent five-year term, consisting of two years on the count 5 offense and three years on the accompanying gang enhancement; ordered that the issue of direct victim restitution remain open; and imposed a restitution fine ( 1202.4, subd. (b)) of $4,000 and a parole revocation fine ( 1202.45) in the same amount. The court suspended the latter fine pending successful completion of parole. On appeal, appellant contends the court violated the plea agreement by imposing the fines.

By information filed October 10, 2007,[1]appellant Demitrieus Garcia was charged with driving under the influence of alcohol, causing injury (Veh. Code, 23153, subd. (a);[2]count 1); driving with a blood alcohol content of .08 percent or higher, causing injury ( 23153, subd. (b); count 2); and driving while his driving privilege was revoked or suspended ( 14601.2, subd. (a); count 3). It was further alleged that within the past 10 years, appellant had suffered two prior convictions of violating section 23152, subdivision (b) ( 23566) and that in committing the offenses charged in counts 1 and 2, he drove with a blood alcohol content of .15 percent or higher ( 23578). Following independent review of the record, Court have concluded that no reasonably arguable legal or factual issues exist.

Appellant T.H. is the mother of two girls, Am. H. and An. H. T.H. contends the juvenile court erred in combining her 12-month review hearing with the fathers dispositional hearing. T.H. further contends the juvenile court abused its discretion when it terminated her reunification services while continuing to provide reunification services to the father. Court affirm the order.

Plaintiff Rosalinda Enriquez refinanced her home, replacing her previous loan with a new loan and home equity line of credit (HELOC) obtained from defendant Greenpoint Mortgage Funding, Inc. (Greenpoint). Incorrectly believing the HELOC proceeds would be used to pay off the outstanding balance on her car loan, Enriquez repeatedly asked Greenpoint and defendant Marin Conveyancing Corporation (Marin), the loan servicing agent, about the use of the HELOC proceeds. Receiving no response, plaintiff eventually stopped making payments on the HELOC, hoping this course of action would cause defendants to answer her questions. Defendants foreclosed on plaintiffs home, and set a date for auction. Although defendants were willing to let plaintiff redeem the property up to the time of the sale, plaintiff presented the redemption money to the auctioneer five minutes after the property had been sold. Nonetheless, Court reverse the judgment to allow plaintiff to amend her complaint. Although defendants had no statutory duty to allow plaintiff to redeem her property at the time of the sale, defendants counsel conceded during oral argument that the parties reached a contract with plaintiff allowing her to do so. Although plaintiff had not specifically alleged this contract in her breach of contract cause of action, defendants concession, along with plaintiffs allegation that defendants agent, the auctioneer, held the foreclosure sale early, provides a basis for us to grant plaintiff leave to amend her complaint. Because Court reverse the judgment, Court also reverse the trial courts attorney fee award for defendants.

Mesa West, Inc., hired Nathan D. LaMoure and his firm, Nathan D. LaMoure, a professional corporation (collectively LaMoure), to serve as its legal counsel. This case concerns an attorney fees dispute arising from an attorney-client contingency fee agreement that the trial court determined failed to comply with the strict provisions of Business and Professions Code section 6147.[1] Unhappy with having to disgorge and reimburse to Mesa West more than $900,000 in fees, LaMoures appeal attacks the judgment from every conceivable angle. Court recognize LaMoure paid a high price by failing to comply with the rules designed to protect clients ( 6147), but we find no reason to disturb the courts judgment awarding LaMoure reasonable fees calculated by multiplying his normal billable rate ($240) for the documented hours he worked. Court affirm the judgment.

A jury convicted Gabino Roman Mendoza of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1))[1], possession of cocaine base for sale (Health & Saf. Code, 11351.5), possession of methamphetamine for sale (Health & Saf. Code, 11378), and street terrorism ( 186.22, subd. (a)). The jury found defendant possessed the gun, cocaine base, and methamphetamine for the benefit of a criminal street gang. ( 186.22, subd. (b)(1).) The jury further found defendant was personally armed while possessing the cocaine base and methamphetamine. ( 12022, subd. (c).) Defendant admitted, and the court found true, he suffered a prior felony conviction described in Health and Safety Code section 11370.2, subdivision (c). The court sentenced defendant to a prison term of 14 years, including three years for the gang enhancement relating to his possession for sale of cocaine base. On appeal defendant contends (1) insufficient evidence supports his convictions for street terrorism and possession of drugs for sale, and the gang enhancements, and (2) the court abused its discretion by admitting allegedly unauthenticated photographs supporting the street terrorism charge and the gang enhancements. Court affirm.