CA Unpub Decisions

Appellant appeals an order revoking his probation in two separate cases and imposing a state prison term of six years and eight months.
On July 11, 2007, appellant pleaded no contest to obstructing a telephone line. He had damaged a phone when his girlfriend tried to make a 911 call. (Pen. Code, 591.)[1] The court suspended imposition of sentence and granted appellant five years probation (case No. 1275494). The court indicated that, if appellant successfully completed a batterer's program and did not commit a new offense or violate probation, it would reduce the conviction to a misdemeanor. ( 17, subd. (b).) The court prohibited appellant from contacting the victim (his girlfriend) or their children. The judgment (order revoking probation) is affirmed.

Petitioner, Christopher Nickolopoulos, appeals from a judgment denying his petition to probate a lost will. The probate court found petitioner had entered into a settlement agreement and release with respect to any and all claims against the estate and therefore could not seek to probate a lost will. Court agree and affirm the judgment.

Michael Eugene Rizzo appeals from the judgment following his entry of a guilty plea to possession of heroin and his admission that he had a prior strike conviction and had served a prior prison term. (Health & Saf., 11350, subd. (a); Pen. Code, 667, subds. (c) & (e); 1170.12, subds. (a) & (e); 667.5, subd. (b).) The trial court struck the prior felony strike conviction and prior prison term allegations. It denied probation, sentenced appellant to the mid-term of 2 years in state prison and awarded him 309 days of presentence custody credits. The judgment is affirmed.

We affirm an order of the juvenile court, finding no abuse of discretion in the trial courts decision not to reduce I.L.s felony adjudication of possession of a razor with an unguarded blade on school grounds to a misdemeanor.

Following a court trial, appellant Wrochell Williams was convicted of the first degree robbery of a Metropolitan Transportation Authority bus passenger. The court found true allegations of three prior prison terms (Pen. Code, 667.5, subd. (b)) and one prior robbery conviction that qualified as a strike and as a prior serious felony conviction under Penal Code section 667, subdivision (a)(1). Appellant was sentenced to prison for the low term of three years, doubled for one strike, plus five years pursuant to Penal Code section 667, subdivision (a)(1). The court struck the allegations of the prison priors. Appellant appealed. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Appellant was notified that he could file his own brief and has not done so. The judgment is affirmed.

Following a jury trial, defendant Lamel Adams was convicted of first degree residential burglary (Pen. Code, 459),[1]and two counts of forcible oral copulation during a residential burglary ( 288a, subd. (c)(2), 667.61, subds. (d)(4) & (e)(2)). As to one of the oral copulation counts, it was also found true he had personally used a knife during the commission of the offense. ( 667.61, subd. (e)(4), 12022.3, subd. (a)). In bifurcated proceedings, it was also found true defendant had previously been convicted of five serious felonies ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant appeals his current convictions, contending the trial court: (1) prejudicially erred in denying his motion to suppress the DNA results of biological samples taken from him in 1994 as a convicted offender and in 2006 when he was in custody; (2) abused its discretion in refusing his request for a Kelly[2]hearing on the admissibility of the frequency of match statistics in a cold hit; (3) abused its discretion in refusing his request for a Kelly hearing on the matter of whether the scientific community accepts the determination of DNA matches from mixed source DNA samples via the process of subtracting out the victims known profile and calling the remaining profile the suspects and the process of validating the 15 markers by a comparison of the ratios of peak heights between the markers; and, (4) denied defendants due process rights in denying his Kelly Prong Three challenges to the manner in which the DNA mixture was interpreted and the frequency of match statistic was calculated. Court shall affirm.

A jury convicted defendant Anthony Lanil McCants of two counts of assault with a firearm, one count of shooting at an inhabited dwelling, and one count of illegally possessing a firearm; it also sustained various firearm and gang enhancements. The court sustained recidivist allegations and sentenced defendant to state prison for a determinate term followed by a consecutive indeterminate life sentence of at least 25 years. On appeal, defendant contends that the trial court erred in refusing to force acceptance of his stipulations to various elements of the gang allegations; in admitting evidence of his gang nickname and a spontaneous utterance identifying him as the shooter; and in failing to instruct that shooting at an inhabited dwelling requires the specific intent to hit the dwelling. He also contends the evidence is insufficient to support his conviction for shooting at an inhabited dwelling. Court shall affirm.

Defendant Johanis Calhoun was convicted by a jury of two counts of second degree robbery (Pen. Code, 211) and one count of burglary (id. 459) in connection with the armed robbery of a convenience store. (Further undesignated section references are to the Penal Code.) The jury also found defendant personally used a firearm in connection with each of the offenses ( 12022.5, subd. (a)(1), 12022.53, subd. (b)). He was sentenced to an aggregate, unstayed term of 15 years in state prison. Defendant appeals contending: (1) the trial court erred in denying his motion for mistrial based on jury tampering; (2) the jury was improperly instructed on misleading statements and flight by defendant; (3) the prosecution committed misconduct in closing argument regarding the definition of reasonable doubt; (4) defense counsel provided ineffective assistance during his closing argument; and (5) the abstract of judgment misstates the offenses on which he was convicted. Court agree the abstract must be corrected but otherwise affirm the judgment.

Plaintiff Dana Dvorakova Dees was riding her bicycle on the sidewalk of N Street in Sacramento when she was struck by a motor vehicle pulling onto N Street from an alley on property owned by defendant 520 Capitol Mall Inc. After settling her lawsuit against the motorist, plaintiff seeks to impose liability on defendant for negligence and premises liability. Plaintiff appeals from summary judgment entered in favor of defendant and the denial of plaintiffs motion for new trial. Plaintiff contends triable issues exist as to whether bushes and a building obstructed the view and contributed to the accident. Court shall conclude the dispute about the alleged obstructions is immaterial, because undisputed evidence showed plaintiff and the motorist saw each other in time to avoid the accident, and plaintiff admitted she kept going because she assumed the motorist would stop. Court shall therefore affirm the judgment.

Defendant Leonard Johnson entered into a negotiated settlement whereby he pleaded no contest to possession of methamphetamine for sale in exchange for a promise of a maximum sentence of two years and the dismissal of an additional count. The court imposed a two-year prison sentence, restitution fines of $400 in accordance with Penal Code sections 1202.4 and 1202.45, a $160 drug lab fee (the court found that defendant lacked the ability to pay the drug lab fee) and a $20 court security fee.

A jury convicted Israel Flores of first degree murder (Pen. Code,[1] 187, subd. (a)) and found the allegations of personal use of a firearm ( 12022.53, subds. (d) & (e)(1)) and that the crime was committed for the benefit of a gang ( 186.22, subd. (b)(1)), to be true. Flores was sentenced to an indeterminate term of 50 years to life.
The crime in this case arose from a gang-related shooting in which the victim was shot five times while standing outside a house where a party was in progress. Flores was in a car with three fellow gang members when he shot the victim. Although the conviction followed a lengthy trial in which numerous issues were raised, Flores raises only a single legal issue on appeal. Flores contends the trial court erred by instructing the jury on two theories of first degree murder: premeditation and deliberation as well as liability based on an uncharged conspiracy to commit murder. Court reject the challenge to the trial court's instructions and affirm.

A jury found Robert McIntosh guilty of first degree murder based on a premeditated murder theory (Pen. Code,[1] 187, subd. (a)), and also found he committed the offense to benefit a criminal street gang and by personally discharging a firearm ( 186.22, subd. (b)(1), 12022.53, subd. (d)). The court sentenced McIntosh to prison for 50 years to life, consisting of 25 years to life for murder with consecutive 25 years to life for the gun enhancement. On appeal McIntosh contends the court erred in permitting a gang expert to respond to certain hypothetical questions pertaining to gang behavior during a shooting. Court reject this contention and affirm the judgment.

Jocelyn A. and A.T. appeal the judgment terminating their parental rights over their daughter Leilani T. They contend the juvenile court erred by finding Leilani was adoptable and Jocelyn contends the court erred by declining to apply the beneficial relationship exception to termination (Welf. & Inst. Code, 366.26, subd. (c)(1)(B)(i)). Jocelyn and A.T. join in each other's arguments. Court affirm.

T.J. and Christian S. appeal the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, they ask this court to exercise its discretion to review the record for error. The appeals are dismissed.