CA Unpub Decisions

Saul Silva appeals a judgment of conviction entered after he expressly waived his constitutional rights and pleaded guilty to two counts of assault with a firearm, and admitted that he personally used a firearm in committing the crimes and that he served a prior prison term. (Pen. Code, 245, subd. (a)(2), 12022.5, subd. (a), 667.5, subd. (b).) The trial court sentenced Lewis to seven years four months, and imposed a $1,400 restitution fine and a $1,400 parole revocation restitution fine. The trial court struck the prior prison term allegations and dismissed the charged count of possession of a firearm by a felon. ( 667.5, subd. (b), 12021, subd. (a)(1).) The trial court awarded Silva 57 days of presentence custody credits. The judgment is affirmed.

We hold that, in this unique situation, where a party acts immediately upon service of notice of the assignment of the case to a master calendar, to file and serve a peremptory challenge pursuant to Code of Civil Procedure section 170.6, the challenge to the judge was timely filed.

A modification decision.

In a bench trial, defendant Thomas Martin Von Lahr II was convicted of possession of concentrated cannabis. (Health & Saf. Code, 11357, subd. (a).)[1] Imposition of sentence was suspended and defendant was placed on formal probation for three years on conditions including incarceration for 32 days with credit for 32 days served. On appeal, defendant contends the trial court erred by concluding that the Compassionate Use Act of 1996 ( 11362.5 et seq. [hereafter CUA]) does not apply to concentrated cannabis. The Attorney General concedes that the trial court erred in concluding that the Medical Marijuana Program Act ( 11362.7 et seq. [hereafter MMPA]), enacted in 2003, limit[s] the type of marijuana that a patient is permitted to possess under the CUA, but claims the error is harmless beyond a reasonable doubt. Disagreeing only with this last contention, Court shall reverse the judgment.

A jury found defendant Jonathan Marzette Hanks guilty of bringing a controlled substance into a prison. (Pen. Code, 4573.)[1] In a bifurcated trial, the jury sustained a prior prison term enhancement. ( 667.5, subd. (b).) Defendant appeals, contending that the trial court erred by not instructing the jury on all the elements of this enhancement. The People concede the error, but maintain it was harmless. Court agree with the People and find the trial court committed harmless error and affirm.

Defendant Steven Foy pleaded no contest to one count of second degree robbery (Pen. Code, 211),[1]admitted a strike enhancement for a prior conviction of first degree burglary ( 459, 667, subds. (b)-(i), 1170.12), and admitted he had violated his probation in the first degree burglary case. The robbery charge stemmed from an incident in which defendant hit the victim and took her cell phone as she was walking in a park.
In exchange for his plea, it was agreed that defendant would receive a state prison sentence of four years (the low term doubled) for the robbery offense and a consecutive term of one year four months for the probation case (No. 04F04477). In addition, two other counts of second degree robbery, alleged to have occurred on the same date against different victims, were dismissed with a Harvey waiver. Defendant was sentenced in accord with this agreement. The judgment is affirmed.

A jury convicted defendant of carjacking (Pen. Code, 215, subd. (a)) with personal use of a firearm (Pen. Code, 12022.53, subd. (b)) and being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)). The trial court found true allegations that defendant had a prior serious felony under Penal Code sections 1170.12 and 667, subdivision (a) and had served a prison term (Pen. Code, 667.5, subd. (b)). Sentenced to 26 years in prison, defendant appeals. He contends it was error (1) to instruct with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 376; (2) to impose five-year and one-year enhancements based on the same prior felony conviction; and (3) to record his sentence on the abstract as the upper term on count 1 when the court imposed the middle term. The Attorney General concedes the second and third errors. Court follow other courts in finding no defect in CALCRIM No. 376.
Court modify the judgment to strike the one-year prison term enhancement, direct the court to amend its minute order of December 18, 2007, to show imposition of the middle term, order the abstract corrected, and otherwise affirm.

On February 19, 2008, defendant Terrell Alexander Rice entered a Mervyns department store, selected several items of merchandise, and left the store without paying for the items. Defendant then punched a loss prevention officer, who confronted him outside the store, before being subdued with the help of officers from the Marysville Police Department. Defendant was charged with second degree robbery (Pen. Code, 211) and second degree burglary ( 459). The judgment is affirmed.

A jury convicted defendants and appellants James Davis and Freddie L. Tyson of the following nine offenses, as charged in the amended information:[1] count 1, conspiracy to commit a residential robbery (Pen. Code,[2] 182, subd. (a)(1)); count 2, residential burglary ( 459, 460); count 3, first degree robbery in an inhabited home ( 211, 212.5, subd. (a)); count 5, assault with a firearm ( 245, subd. (a)(2)); count 6, assault with a firearm ( 245, subd. (a)(2)); count 7, assault with a firearm ( 245, subd. (a)(2)); count 8, false imprisonment by force or violence ( 236, 237, subd. (a)); count 9, false imprisonment by force or violence ( 236, 237, subd. (a)); and count 10, making a criminal threat ( 422).
A jury convicted defendants and appellants James Davis and Freddie L. Tyson of the following nine offenses, as charged in the amended information:[1] count 1, conspiracy to commit a residential robbery (Pen. Code,[2] 182, subd. (a)(1)); count 2, residential burglary ( 459, 460); count 3, first degree robbery in an inhabited home ( 211, 212.5, subd. (a)); count 5, assault with a firearm ( 245, subd. (a)(2)); count 6, assault with a firearm ( 245, subd. (a)(2)); count 7, assault with a firearm ( 245, subd. (a)(2)); count 8, false imprisonment by force or violence ( 236, 237, subd. (a)); count 9, false imprisonment by force or violence ( 236, 237, subd. (a)); and count 10, making a criminal threat ( 422).On appeal, Davis contends his conviction for making a criminal threat is not supported by substantial evidence. Tyson also appeals, contending he cannot be guilty of aiding and abetting a criminal threat because he lacked the same specific intent required to convict Davis. We disagree with both contentions and therefore affirm the judgments.

The record in this case shows that in the course of robbing a drug dealer, appellant Odilon Albarran killed the drug dealer by stabbing him 14 times. The jury convicted appellant of first degree murder and found he personally used a deadly weapon. Court affirm.

Howard Armstrong was sentenced in 1988 to a prison term of 17 years to life after a jury found him guilty of second degree murder with a firearm. Armstrong, now 53 years old, has remained in prison for more than 20 years. After several parole hearings at which parole was denied, the Board of Parole Hearings (BPH) found him suitable for parole at his 2006 suitability hearing, at which it concluded Armstrong did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger (the Governor) reversed the BPH's decision, finding Armstrong posed an unreasonable risk of danger to society if released. Armstrong successfully petitioned the trial court for a writ of habeas corpus. Ben Curry, acting warden of the Correctional Training Facility (Curry), appealed the trial court's order granting Armstrong's petition for a writ of habeas corpus and his release from prison on parole, arguing Governor Schwarzenegger's decision was supported by some evidence and therefore must be upheld.
In an unpublished opinion filed June 2, 2008, this court affirmed the trial court's order and ordered Armstrong released under the conditions set forth in the 2006 decision of the BPH. (In re Armstrong (Jun. 2, 2008, D051629) [nonpub. opn.].) However, the California Supreme Court granted review and deferred further action in this matter pending order of the court, and subsequently transferred the matter to this court with directions to vacate our prior decision and reconsider the matter in response to In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis). The parties have filed supplemental briefs following transfer to this court. (Cal. Rules of Court, rules 8.200(b) & 8.528(f).) After further consideration, we again conclude the Governor's decision was not supported by some evidence, and therefore affirm the trial court.

Appellant Enrique G., a juvenile, was the subject of a petition filed under the Welfare and Institutions Code section 602. The petition alleged appellant stabbed William Brown in the chest after Brown made a sexual proposition and fled Brown's apartment with Brown's keys, cash and cell phone. Appellant admitted he committed robbery and assault with a deadly weapon and inflicted great bodily injury and personally used a deadly weapon.
On appeal appellant contends the trial court's minute order did not accurately reflect the trial court's oral disposition, the condition limiting contact with Brown should be subject to a knowledge qualifier and the gang limitation was ambiguous. Court agree the trial court's minute order does not reflect the oral disposition and remand with directions that it conduct further proceedings by which it may express its apparent intent that appellant be subject to the conditions set forth in its minute order. Court reject appellant's contention that an express knowledge qualifier is needed for the condition limiting contact with Brown; however, on remand we direct that the trial court define the gang limitation by reference to criminal street gangs as defined in Penal Code section 186.22, subdivisions (e) and (f).

The juvenile court declared 15-year-old A.C. a ward of the court (Welf. & Inst. Code, 602) after sustaining allegations that she committed one count of attempted robbery (Pen. Code, 664/211) and one count of misdemeanor battery (Pen. Code, 242). The court placed A.C. on probation, conditioned on various things, including being on home supervision for 30 days.
The judgment is affirmed.

A jury found defendant guilty of two counts of robbery (Pen. Code, 211;[1]counts 3 & 4) and one count of being a felon in possession of a firearm ( 12021, subd. (a)(1); count 5), and found he personally used a firearm in the commission of the robberies ( 12022.53, subd. (b)). The evidence supporting counts 3, 4, and 5 was based on an incident that occurred on November 21, 2005. After defendant was sentenced on counts 3, 4, and 5, he pled guilty to counts 1 and 2 and admitted a personal use allegation in count 1. On all five counts, defendant was sentenced to an aggregate term of 15 years in prison. This appeal followed.