CA Unpub Decisions

A jury found Deborah Jean Joshua guilty of possession of cocaine base for sale. After finding four sentence enhancement allegations true, the trial court imposed a 13-year sentence. On appeal, she argues an evidentiary issue and a sentencing issue. Court affirm the judgment.

Following the denial of his motion to suppress evidence, defendant Fernando Gonzalez Ramirez was convicted by jury trial of possession of methamphetamine and transportation of methamphetamine. On appeal, he contends the trial court should have granted the motion to suppress because (1) exigent circumstances did not justify the officers warrantless, nonconsensual patdown search of defendant because the officer had no duty to impound the vehicle and no duty to transport its occupants, (2) the officer failed to inform defendant he had the right to refuse a ride in the patrol vehicle and (3) even if the patdown search was permissible, the officer exceeded the permissible scope by lifting defendants pant leg and looking inside his boot. Court affirm.

In return for a sentence limited to two years, Joshua Ray White pleaded no contest to a charge of being a felon in possession of a firearm. The court included a penal fine of $720 in the sentence. White now argues that this fine must be stricken because it exceeded the terms of the plea agreement. In the plea agreement form he signed, however, White was informed and acknowledged that a penal fine of up to $10,000 and a restitution fine of up to $10,000 were possible consequences of his plea. Court affirm.

A jury convicted appellant, Frank Dale Hunter, of assault by means of force likely to cause great bodily injury in violation of Penal Code[1]section 245, subdivision (a)(1), and felony child endangerment in violation of section 273, subdivision (e). Appellant had thrown and kicked his 11-year-old nephew following an argument. Thereafter, in a bifurcated bench trial, the court found true the allegation that appellant had served four prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced appellant to the upper term of six years for child abuse, the upper term of four years for assault, which was stayed pursuant to section 654, and imposed four one year prior prison term enhancements for a total term of ten years. Appellant is correct. Accordingly, three of the four one year prior prison term enhancements will be ordered stricken.

Appellant S.M., the mother of now seven-year-old twins, a son P. and a daughter M., appeals from an order of the juvenile court following the 18-month review hearing terminating her reunification services and placing the children in their fathers custody with family maintenance services. (Welf. & Inst. Code, 366.22, 395.) Mother contends there is insufficient evidence to support the courts finding that returning the minors to her physical custody would create a substantial risk of detriment to the[ir] safety, protection, or physical or emotional well being. ( 366.22, subd. (a).) Court affirm the order.

Pursuant to this courts orders of September 9, 2008 and November 5, 2008, and the informal responses filed by the Attorney General, this court concludes the Attorney General agrees that petitioner is entitled to appeal the order filed on May 2, 2008, and relief should issue without further proceedings. (People v. Romero (1994) 8 Cal.4th 728; 22B Cal.Jur.3d (2000) Criminal Law: Post-Trial Proceedings, 639, pp. 300-301; 22C Cal.Jur.3d (2000) Criminal Law: Post-Trial Proceedings, 939, pp. 216-218.)
Let a writ of habeas corpus issue directing the Superior Court Clerk of Merced County to deem the notice of appeal filed in Merced County Superior Court action No. 29028 on or about June 24, 2008, to be timely filed and operative from the order filed on May 2, 2008, and to cause a normal record on appeal to be prepared and served on the parties and filed in this court in accordance with the applicable rules of the California Rules of Court on or before 75 days from the date of this opinion.

Eric M. appeals for the second time from a judgment terminating dependency jurisdiction over his daughter, Elizabeth M., and returning her to the custody of her mother, Stacy A. In the first appeal, we agreed with Erics contention the court had erred by issuing an exit order which significantly reduced his visitation, based solely upon a stipulation of questionable validity. As a consequence, we reversed the termination order, and remanded the case to the juvenile court for the limited purpose of modifying the judgment to reflect that Erics visitation schedule remains unchanged from what it was prior to the termination. The judgment is affirmed.

Defendant Paul Zapata was convicted of first degree murder and sentenced to imprisonment for 50 years to life. On appeal he contends that numerous errors were made in the admission of evidence and other matters. Court find no error in the murder conviction, but direct certain modifications in the judgment with respect to a simultaneous conviction for battery.

Under Welfare and Institutions Code section 3052, a defendant who has been convicted of a violent felony (Pen. Code, 667.5, subd. (c)(21)) is not eligible to be committed to a state rehabilitative facility for drug treatment. In this case, Court hold that a court lacks discretion under Penal Code section 1385 to dismiss a violent felony allegation in order to commit a defendant to the California Rehabilitation Center (CRC).

Defendant Roberto Lares Acuna appeals from a judgment of conviction entered after he pleaded no contest to one count of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, 288, subd. (a)).[1] The trial court sentenced defendant to 8 years in state prison, suspended execution of sentence, and imposed probation for five years with conditions that he serve one year in county jail. Defendant was also required to pay various fines, fees, and penalty assessments. Court conclude that the imposition of certain fines and penalty assessments violated state and federal constitutional prohibitions against ex post facto laws, and that the payment of probation costs could not be ordered as a condition of probation. Accordingly, Court reverse.

A jury convicted Afredo Vierra Abanico and his codefendant Vincent Lopez of five counts of kidnapping for purposes of robbery, five counts of kidnapping to facilitate a carjacking, and street terrorism, and it further found that they personally used firearms and committed the crimes for the benefit of a criminal street gang. After a court trial, the court found that both had served prior prison terms and that Lopez had a prior strike conviction. (Pen. Code, 209, subd. (b)(1), 209.5, subd. (a), 186.22, subds. (a) & (b)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b) & 12022.5, subd. (a)(1), 667.5, subd. (b), & 1170.12, subd. (c)(1).) On appeal from the judgment, defendant claims the court violated his right to a jury trial by imposing the upper term for street terrorism based on factors that the jury did not find and he did not admit.

Appellant (H) has attempted to appeal from a bevy of orders concerning resolution of disputes about liens for attorney fees that encumber her underlying settlement package. Court have already partially dismissed her appeal based on two untimely notices of appeal and the denial of a separate motion to augment to include numerous amended orders of appeal. With this decision Court dismiss the appeal in its entirety.

A modification decision.

Defendant Edwin Gail Donahue, Sr., appeals an order denying his motion for pretrial credits in case Nos. CR004276 and CR005439 (People v. Donahue (Super. Ct. Humboldt Co., 2002)). He contends his waiver of pretrial credits was not knowing, intelligent and voluntary. Court disagree and affirm.