CA Unpub Decisions

On January 4, 2007, the Kern County District Attorney filed an information in superior court charging appellant as follows: Count Iinfliction of corporal injury upon a spouse (Pen. Code, 273.5, subd. (a))[1]with two instances of personal use of a deadly weapon ( 12022, subd. (b)(1)), infliction of great bodily injury ( 12022.7, subd. (e)), and two strike priors ( 667, subds. (c)-(j), 1170.12, subds. (a)-(e));
On May 10, 2007, appellant filed a timely notice of appeal.

On January 18, 2007, respondent, Alfred Whitehurst, as successor trustee of Joel A. Whitehurst and Cecilia Whitehurst Living Trust Agreement dated May 30, 1991 (hereinafter "the Trust"), filed a "Petition for Order Passing Upon Trustee's Proposed Non Pro Rata Distribution of Trust Assets" pursuant to Probate Code section 17200, subdivision (b)(5).
On June 11, 2007, appellant filed a notice of appeal from the court's denial of the three motions, as well as from "all other orders and judgments entered or decided in the proceedings in this litigation adverse to Appellant." In her opening brief, however, the only other order appellant identifies as being the subject of her appeal is the probate court's order approving the trustee's plan for non-prorata distribution of the trust assets. The appeal insofar as it purports to appeal from the probate court's May 18, 2007 order denying appellant's three motions is dismissed.

Appellant Dwight Tamplin, Jr., was convicted after jury trial of being a felon in possession of a handgun and a street gang enhancement was found true. (Pen. Code, 12021, subd. (a)(1) & 186.22, subd. (b)(1).) In a subsequent bifurcated proceeding, four prior strikes were found true. ( 667, subds. (b)-(i), 1170.12 & subds. (a)-(d).) Appellant was sentenced to an aggregate term of 45 years to life imprisonment. On May 10, 2007, we issued an opinion in appellants first appeal, case No. F050103, affirming the judgment of conviction but vacating the sentence and remanding the matter for resentencing.
On August 28, 2007, the trial court denied appellants request to dismiss one or more of his prior serious felony convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court sentenced appellant to prison for a term of 25 years to life plus an additional three years for the gang enhancement. Appellant contends the trial court abused its discretion in denying his request pursuant to Romero. Court disagree and will affirm.

On May 3, 2007, the Fresno County District Attorney filed an information in superior court. As subsequently amended by interlineation, the information charged appellant as follows:
Count 1carjacking (Pen. Code, 215, subd. (a));
Count 2kidnapping ( 207, subd. (a)), with personal use of a firearm ( 12022.53, subd. (b), 12022.5, subd. (a)); Counts 3 and 4possession of a firearm by a felon ( 12021, subd. (a)); Counts 5 and 6possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)); Count 7dissuading a witness from prosecuting a crime ( 136.1, subd. (b)(1)); and Count 8resisting a peace officer ( 148, subd. (a)(1)). The district attorney specially alleged appellant had sustained three strike priors ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). On May 7, 2007, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations. On August 23, 2007, jury trial commenced. Appellant contends on appeal (1) that the conviction on count 1, for carjacking, is not supported by substantial evidence, and (2) that his sentence is cruel and unusual punishment. Court disagree with both contentions and will affirm.

Petitioner (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested 12-month review hearing terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter, M. Court grant the petition.

In a court trial, defendant was found guilty of two counts of lewd acts on a child under the age of 14 pursuant to Penal Code section 288, subdivision (a) with a further finding that in committing the lewd acts, defendant did not use force or violence within the meaning of section 1203.066, subdivision (a)(1), (2).) He was also found guilty of misdemeanor child abuse.
On appeal defendant challenges the imposition of his probation condition he not be in the presence of any person under the age of 18 whether with or without supervision. He contends the probation condition is unconstitutionally vague, and overbroad. Since his contentions have merit, Court shall modify the condition, and otherwise affirm the judgment.

Eddie Giuseppe Mendiola appeals from the order denying his motion to vacate the judgment and to withdraw his guilty plea (which he also refers to as a petition for writ of error coram nobis).[1] He contends that when he pleaded guilty in 1996 to charges of assault with a deadly weapon, possession of a controlled substance, and unauthorized possession of a syringe, he was not adequately advised of the immigration consequences of his plea as required by Penal Code section 1016.5. Mendiola acknowledges he signed and initialed a change of plea form properly advising him of the immigration consequences of his plea. He argues, however, the additional oral advisement given by the prosecutor when he entered his plea contradicted the plea form by only warning him the guilty plea could lead to denial of citizenship. Alternatively, Mendiola argues his trial counsel was ineffective by failing to warn him his guilty plea could lead to deportation or exclusion from admission to the United States. Court conclude Mendiola was adequately and properly advised of the immigration consequences of his plea because the change of plea form he signed and initialed contained the advisement required by Penal Code section 1016.5. The oral advisement did not contradict the written advisement, but was merely incomplete. A claim of ineffective assistance of counsel cannot be raised in a motion to vacate the judgment under section 1016.5 or a petition for writ of error coram nobis. Court therefore affirm.

Defendant Domingo Mendoza Garcia appeals from the judgment entered after a jury found him guilty of possessing a weapon while in custody. Defendant admitted an enhancement allegation that he had been previously convicted of a serious and violent felony. Court affirm.

The trial court calculated appellant Ryan C. Mansfields presentence credits at 15 percent thinking, incorrectly as we discuss below, that the conduct credit limitation imposed by Penal Code section 2933.1 applied. They do not. Accordingly, Court direct the trial court to recalculate appellants presentence credits at 50 percent pursuant to Penal Code section 4019.
The judgment on appeal is affirmed as modified.

Defendant Ly Van Nguyen was convicted by jury trial of second degree murder (Pen. Code, 187) and conspiracy to sell ecstasy (Pen. Code, 182, subd. (a)(1); (Health & Saf. Code, 11379). The jury found true a Penal Code section 12022.53, subdivision (d) firearm allegation, and the court found true that defendant had suffered a prior strike and serious felony conviction (Pen. Code, 667, subds. (a), (b)-(i), 1170.12). Defendant was committed to state prison for a term of 60 years to life.

David Douglas Pearson was struck by an uninsured motorist while crossing an intersection on foot. Pearson was listed as an additional driver under an automobile insurance policy issued by the Mercury Insurance Company (Mercury) to Pearsons fiance as the named insured. Asserting that the uninsured motorist provisions of the policy did not cover Pearson for injuries suffered in a pedestrian accident, Mercury denied coverage for Pearson. Mercury sued Pearson for declaratory relief and Pearson cross-claimed against Mercury and the insurance agents who procured the policy. Following Mercurys demurrer and motion for judgment on the pleadings, the trial court granted judgment in favor of Mercury.
On appeal, Pearson contends that (1) Mercurys insurance policy is ambiguous and created a reasonable expectation of coverage on his part, and (2) he should be permitted to amend his cross-complaint to allege causes of action against Mercury for vicarious liability and reformation of the policy. Finding no merit in these contentions, Court affirm.

David Douglas Pearson was struck by an uninsured motorist while crossing an intersection on foot. Pearson was listed as an additional driver under an automobile insurance policy issued by the Mercury Insurance Company (Mercury) to Pearsons fiance as the named insured. Asserting that the uninsured motorist provisions of the policy did not cover Pearson for injuries suffered in a pedestrian accident, Mercury denied coverage for Pearson. Mercury sued Pearson for declaratory relief and Pearson cross-claimed against Mercury and the insurance agents who procured the policy. Following Mercurys demurrer and motion for judgment on the pleadings, the trial court granted judgment in favor of Mercury.
On appeal, Pearson contends that (1) Mercurys insurance policy is ambiguous and created a reasonable expectation of coverage on his part, and (2) he should be permitted to amend his cross-complaint to allege causes of action against Mercury for vicarious liability and reformation of the policy. Finding no merit in these contentions, Court affirm.

A subsequent petition filed under Welfare and Institutions Code section 602, subdivision (a), alleged that defendant came under the jurisdiction of the juvenile court for committing murder (Pen. Code, 187) while with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1). The juvenile court found all of the allegations in the petition true beyond reasonable doubt. Defendant appeals and contends that substantial evidence did not support the finding that he committed felony murder based on his status as an aider and abettor of attempted robbery. Defendants argument is unpersuasive and Court affirm the lower courts judgment.

Eric Christopher Daviesson admitted violating his probation. He appeals following the trial courts imposition of a previously stayed three-year prison sentence for receiving stolen property. Daviesson contends the court lost jurisdiction under Penal Code[1]section 1203.2a to impose execution of his sentence because he was not committed to prison within 60 days after the court was notified that he was confined in a state prison following his conviction for an unrelated offense. Daviesson also argues he was entitled to an award of custody credits in excess of those ordered by the trial court for time he was in prison and awaiting imposition of his three-year sentence. Court conclude Daviesson failed to show that the court was notified as required by section 1203.2a that he was in prison for an unrelated offense. Court also conclude there was no error in calculating his custody credits. Court affirm the judgment.