CA Unpub Decisions

Defendant and appellant Christina Acuna appeals from the judgment entered following a jury trial in which she was convicted of gross vehicular manslaughter while intoxicated, vehicular manslaughter without gross negligence, driving under the influence, and driving with a blood alcohol level over 0.08 percent. Acuna was sentenced to a term of 15 years to life in prison. Acunas sole contention on appeal is that vehicular manslaughter without gross negligence is a lesser included offense of gross vehicular manslaughter while intoxicated, and therefore she should not have been convicted of both offenses. As the People concede, this contention has merit. Accordingly, we order the conviction for the lesser offense stricken. In all other respects, Court affirm.

The trial court properly granted summary judgment to a county hospital in a wrongful death action where the plaintiffs failed to comply with the claims presentation requirements of the Government Claims Act.

Victoria F. (mother) appeals from a juvenile court order adjudicating three of her children, G.B., V.B., and Baby Boy F., dependents of the juvenile court.[1] Mother contends that the juvenile court must be reversed because the juvenile court and the Department of Children and Family Services (DCFS) failed to comply with the provisions of the Indian Child Welfare Act (ICWA).
DCFS concedes that numerous mistakes were made in the preparation of the ICWA notices. However, any mistakes made were harmless error as to G.B. and V.B. They were never removed from the custody of their father and, immediately upon finding the children to be dependents, the juvenile court entered a family law order granting the childrens father custody; the juvenile court then terminated jurisdiction over G.B. and V.B. Accordingly, Court affirm.

Defendant and appellant Jerry Mullens appeals from the judgment entered following a jury trial that resulted in his convictions for attempted willful, deliberate, and premeditated murder and shooting at an occupied motor vehicle. The trial court sentenced Mullens to life in prison, plus 20 years. Mullens contends the evidence was insufficient to prove premeditation and deliberation, and to support the jurys finding the crimes were committed for the benefit of a criminal street gang. The People contend the judgment should be modified to impose two, rather than one, court security fees. Court order the judgment modified as requested by the People, and in all other respects affirm.

Confused by highway construction, plaintiff Lynn Grimshaw slowed her car down as she looked for a freeway entrance. Defendant John Rego promptly rear-ended her. Grimshaw filed a complaint alleging personal injuries. Following judicial arbitration and Regos request for a trial de novo, Grimshaws counsel filed a petition for substitution of attorney. From that point on, Grimshaw proceeded in propria persona. Court shall dismiss the appeal as untimely.

After an incident where defendant admittedly molested a young girl who lived in his apartment complex, a jury convicted defendant of forcefully committing three lewd and lascivious acts with a child under the age of 14 (Counts 1-3, Pen. Code, 288, subd. (b)(1)[1]); making a criminal threat (Count 4, 422)); and simple kidnapping (Count 5, 270, subd. (a)). The jury found true allegations that, as to Counts 1 through 3, defendant used a deadly weapon and kidnapped the victim, who was under 14 years of age. ( 667.61, subd. (e)(1), (e)(4); 667.8, subd. (b); 12022.3, subd. (a).) The trial court denied defendants subsequent motion for a new trial and sentenced defendant to an aggregate term of 45 years to life. The judgment is affirmed.

A fight broke out at a bar in Stockton, followed by shooting in the parking lot that killed two people. Thereafter defendant shot and seriously wounded Dewayne Jackson; he aimed and fired a gun at Ronnie Franklin, but the gun did not discharge. In the first trial, a jury convicted defendant of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)), and defendant admitted he had a prior serious felony conviction (Pen. Code, 667, subds. (a) & (b); 1170.12, subd. (b)), and had served a prison term (Pen. Code, 667.5, subd. (b)). In the third trial, after two mistrials for hung juries, the jury convicted defendant of two counts of attempted murder. (Pen. Code, 664, 187.) As to count one, the jury found true allegations that defendant personally and intentionally fired a firearm and inflicted great bodily injury. (Pen. Code, 12022.53, subds. (b), (c), & (d); 12022.7, subd. (b).) As to count two, the jury found true that defendant personally used a firearm. (Pen. Code, 12022.53, subd. (b).) The trial court found true allegations defendant had a prior conviction. Defendant was sentenced to 30 years to life plus life in prison with the possibility of parole. On appeal, defendant contends the trial court erred in admitting evidence he was a gang member and abused its discretion in limiting the cross-examination of victim Franklin. He contends there was insufficient evidence of attempted murder of Franklin. He further contends it was error to allow the jury to use a magnifying glass and not to allow the jury to view the crime scene. Court find no prejudicial error and affirm.

Pursuant to People v. West (1970) 3 Cal.3d 595, defendant entered a negotiated plea of no contest to assault with a firearm (Pen. Code, 245, subd. (a)(2)), admitted personally using a gun in committing the offense (Pen. Code, 12022.5, subd. (a)), and stipulated that he would be sentenced to an aggregate term of 14 years in state prison, in exchange for the dismissal of charges of attempted murder (Pen. Code, 664/187, subd. (a)), being a convicted felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), and various firearm enhancements (Pen. Code, 12022.53, subds. (b), (c), and (d)). He was sentenced in accordance with the plea agreement.
Defendant appeals and has obtained a certificate of probable cause. (Pen. Code, 1237.5.) He contends that he was denied the effective assistance of counsel in his attempt to withdraw his plea. Court disagree and shall affirm the judgment.

A jury convicted defendant Luis Alonso Vega of second degree murder and of possessing a firearm as a felon. (Pen. Code, 187, 12021, subd. (a).)[1] The jury acquitted defendant of first degree murder and found he did not intentionally and personally discharge a handgun during the murder. ( 12022.53, subd. (d).) According to defendant, the jury acquitted codefendant Zackarie Beck of the murder. On appeal defendant contends there is insufficient evidence that he killed the victim or aided and abetted her killing. Court disagree and affirm the judgment.

Wilma H. (appellant), the mother of Richard W. (the minor), appeals from a juvenile court order continuing the minor as a dependent child of the court. (Welf. & Inst. Code, .366.21, subd. (e), 395.) Appellant contends: (1) there was insufficient evidence to support the courts finding at the six-month review hearing that the Department of Health and Human Services (the Department) provided her with reasonable reunification services; (2) the courts finding that reasonable services were provided prejudiced appellant because her progress in the case plan was hindered due to delay in referral of individual counseling services; (3) the evidence was insufficient to support a finding that the minors return to appellants home would create a substantial risk of detriment to his well-being; and (4) the court improperly denied appellants request for rehearing. Court disagree with each of appellants contentions and shall affirm the order.

A jury convicted defendant Fermin Coronado Galvez of two counts of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, 288, subd. (a)), two counts of committing digital penetration of a child under the age of 14 (Pen. Code, 289, subd. (j)), and single counts of battery (Pen. Code, 242), displaying harmful matter to a minor with intent to seduce (Pen. Code, 288.2, subd. (a)), and indecent exposure (Pen. Code, 314, subd. 1). He was sentenced defendant to 10 years and eight months in state prison. On appeal, defendant contends the trial court erred in allowing the redaction of portions of a letter written by defendant that was introduced in evidence against him, and claims he should have been provided with an interpreter during trial. Court shall affirm the judgment.

Following the denial of his motion to suppress evidence (Pen. Code, 1538.5),[1]defendant Ivan Jay Dixon entered a negotiated plea of nolo contendere to possessing a controlled substance (Health & Saf. Code, 11377, subd. (a)). He was sentenced to three years in state prison and ordered to pay a $200 restitution fine ( 1202.4, subd. (b)); a $200 restitution fine suspended unless parole is revoked ( 1202.45); a $50 criminal laboratory analysis fee (Health & Saf. Code, 11372.5), plus a $140 penalty assessment; and a $150 drug program fee (Health & Saf. Code, 11372.7), plus a $420 penalty assessment. He appeals, contending the trial court erred in denying his motion to suppress and in failing to breakdown the $140 and $420 penalty assessments it imposed. Finding defendant waived his right to appeal the denial of his motion to suppress as part of his negotiated plea agreement, Court shall dismiss that portion of the appeal, affirm the judgment, and remand the matter to the trial court for a breakdown of the $140 and $420 penalty assessments it imposed.

Defendant John Douglas Murdock took copper wire from California Department of Transportation (Caltrans) junction boxes on two separate occasions in July 2007. A jury found him guilty of grand theft by severance from real property (Pen. Code, 487b; further section references are to the Penal Code unless otherwise specified) and receiving stolen property ( 496). The trial court sentenced him to a term of two years in state prison for grand theft and a concurrent term of six months for receiving stolen property, and imposed other orders. On appeal, defendant contends the trial court erred in denying his motion for acquittal and committed instructional error. Court affirm the judgment.

Defendant Grant Charleston Owens entered negotiated pleas of no contest to rape by use of an intoxicating or controlled substance (case No. CM027121) and first degree burglary (case No. CM027286). In a bench trial on the other allegations in case No. CM027286, the trial court found defendant had a prior serious felony conviction and had served two prior separate prison terms. At sentencing, the court dismissed the prior prison term enhancements, committed defendant to the maximum term allowed under the plea agreement, 21 years in state prison, and imposed various fines and fees. On appeal, defendant contends that a fine imposed pursuant to Penal Code section 290.3 violated the prohibition against ex post facto application of laws. Court agree and shall modify the judgment.