CA Unpub Decisions

A jury convicted appellant Theodore Blackmon, Jr. of murder (Pen. Code, 187, subd. (a); count 1),[1]attempted murder ( 664, 187, subd. (a); count 2), and being a convicted felon in possession of a firearm ( 12021, subd. (a)(1); count 3). The jury found true a gang-murder special circumstance allegation attached to count 1 ( 190.2, subd. (a)(22)), allegations attached to counts 1 and 2 that the crimes were committed with deliberation and premeditation ( 189) and by personal use of a firearm ( 12022.53, subd. (d); count 1, 12022.53, subd. (c); count 2), and an allegation attached to all counts that the crimes were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). On appeal, Blackmon contends his convictions must be reversed because there was insufficient evidence he was the person who committed the crimes and the trial court erred when it denied his motion for a new trial. Blackmon also contends the trial court committed the following sentencing errors: (1) imposing section 667, subdivision (a) and 667.5, subdivision (b) status enhancements on count 1; (2) the clerks minutes and abstract of judgment reflect imposition of three section 667.5, subdivision (b) enhancements based on his 2004 prison commitment that the court imposed and then struck; and (3) miscalculating his net prison commitment on count 3. As we shall explain, we find there is substantial evidence to support his conviction and the trial court did not err in denying his new trial motion. Court also find no merit to his claims of sentencing error. Court did find, however, an error in the clerks minutes with respect to sentencing and will order correction of the minutes to correspond with the trial courts oral pronouncement of sentence.

A jury convicted appellant Edward Mathew James of petty theft with a prior conviction (Pen. Code, 666)[1]and misdemeanor battery ( 243, subd. (a)), but found him not guilty of burglary ( 460, subd. (b)). In a bifurcated trial, the court found true allegations that James had suffered a prior strike conviction within the meaning of section 667, subdivisions (c)-(j), and served a prior prison term within the meaning of section 667.5, subdivision (b). James was sentenced to state prison for a total term of 44 months, comprised of the lower term of 32 months (16 months doubled) for the petty theft conviction plus one year for the prior prison term. James also was sentenced to a concurrent six month term in county jail for the misdemeanor battery conviction. Court disagree with all of these contentions and affirm the judgment.

Appellant Nicholas Dane Campbell stands convicted, in Madera County case No. MCR022274 (case 2274), of receiving stolen property (Pen. Code, 496, subd. (a))[1], a felony, and trespass ( 602), a misdemeanor, and, in Madera County case No. MCR025737 (case 5737), of fraudulent use of an access card ( 484g), a felony. Initially, the court imposed a three-year term in each case and suspended execution of sentence. In January 2008, the court ordered execution of the previously suspended prison terms. The instant appeal followed.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d. 436.) Appellant has not responded to this courts invitation to submit additional briefing. Court affirm.

Ro. H. appeals from an order by the juvenile court that temporarily suspended his rights to make educational decisions for his son, R.H. The juvenile court first gained jurisdiction over R.H. in 1999. By Ro. H.s admission, this is at least his sixth appeal from various orders issued in the dependency proceedings. As with the previous five appeals, Court affirm the juvenile courts order.

Tamara Kay Bohler appeals from a judgment after a jury convicted her of attempted murder and murder by means of lying in wait, and found true she inflicted great bodily injury on one of the victims and she personally used a dangerous and deadly weapon, a knife. She argues there was instructional error, evidentiary error, cumulative error, and sentencing error. None of her contentions have merit, and Court affirm the judgment.

A modification decision.

Appellant Rigoberto Salinas was convicted of carjacking, unlawfully taking a vehicle, and possessing cocaine and drug paraphernalia. He contends the court erred in giving the standard flight instruction, there is insufficient evidence to support his cocaine conviction and the jury was coerced into reaching its verdict. Court reject these contentions and affirm the judgment.

Appellant was convicted of possessing for sale various drugs that were found at his home during a search pursuant to warrant. He contends reversal is required because the search warrant materials were not timely filed with the court, and the police failed to read him his Miranda rights before questioning him at the scene. (See Miranda v. Arizona (1966) 384 U.S. 436.) Finding no basis to disturb the judgment, Court affirm.

Defendant was convicted of two counts of grand theft and three counts of passing nonsufficient funds checks. She argues that due to improper foundations and hearsay, some of the evidence against her at trial should not have been admitted. Court disagree and affirm.

a cause of action for interference with prospective economic advantage in Robert Proctors cross complaint. It argues the claim was based on conduct protected by the litigation privilege. Court agree and reverse with directions to enter an order striking the cause of action.

Defendant James Herbert Speights, Jr., was convicted of the first degree murder of his wife, with a special circumstance that the killing was intentional and involved the infliction of torture. Defendant raises two challenges to his conviction on appeal. Court reject both, and therefore affirm.

Attorney Albert M. Graham, Jr., represented Sheryl L. Bechara in a marital dissolution action. After being substituted out as counsel, Graham filed a motion under In re Marriage of Borson (1974) 37 Cal.App.3d 632 (Borson), asking the superior court to order Sheryl Becharas former husband, Sergio D. Bechara, to pay Grahams attorney fees. The court granted the motion, but reserved the issue of the amount of fees for a later hearing. Although neither of the documents from which Graham purports to appeal is an appealable order, Court exercise our discretion to treat the appeal as a petition for a writ of mandate, and grant the petition.

A jury found defendant Cesar Joel Baires guilty of possessing methamphetamine and selling, offering to sell, transporting, or attempting to transport methamphetamine. Defendant pled guilty to driving without a license. The trial court found defendant was ineligible for Proposition 36, concluded he was not suitable for probation, and sentenced him to two years in prison. Court have examined the entire record and counsels Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) Court therefore affirm.

A jury convicted defendant Lenoardo Adrian Lozano of auto theft (Veh. Code, 10851(a)), having previously been convicted of theft of a motor vehicle (Pen. Code, 666.5, subd. (a); all further statutory references are to this code unless otherwise specified), and three misdemeanors, possession of drug paraphernalia (Health & Saf. Code, 11364), unauthorized possession of a syringe (Bus. & Prof. Code, 4140), and resisting, delaying, or obstructing a police officer ( 148, subd. (a)(1)). Defendant admitted five prior prison terms and that he had not remained out of prison for five years ( 667.5, subd. (b). Defendant was given 30 days to file written argument on his own behalf. That period has passed and we received no communication from him. We examined the entire record to determine if any arguable issues were present, including those suggested by counsel, and found none. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.)