CA Unpub Decisions

Defendant Rogelio Torres Hernandez was convicted on two counts of committing lewd and lascivious acts on his stepdaughter, a child under the age of 14. (Pen. Code, 288, subd. (a).) He was sentenced to a term of six years in state prison.
On appeal, defendant raises various claims of error. Court affirm the judgment.

A jury found defendant Eric William Franklin guilty of various drug offenses, and the court sustained a recidivist allegation. The court sentenced him to state prison. On appeal, defendant contends inter alia that the trial court erred in denying his motion to suppress. Court agree, which obviates the need to detail or reach his remaining arguments. Court reverse with direction to grant the motion.

Jimmy Malo appeals from a judgment convicting him of attempted voluntary manslaughter and two counts of assault with a firearm. He contends the trial court erred by (1) admitting evidence about his gang membership, (2) limiting the manner in which he presented evidence of his gunshot wounds to the jury, and (3) imposing consecutive rather than concurrent sentences. Court reject his arguments and affirm.

Namale West, Inc., Anthony Robbins & Associates, Inc. and The Anthony Roberts Foundation, Inc. (collectively Defendants) appeal from an order denying their motion to compel Karen Thompson to arbitrate her claims against them under an arbitration clause contained in a registration form signed by her traveling companion. Defendants claim the trial court erred in denying their motion because Thompson's companion had the authority to agree to the provision as her agent. Alternatively, they claim that Thompson was bound by the provision as a third party beneficiary to the agreement. Court reject Defendants' arguments and affirm the order.

Ronnie Alvin Sellers appeals a judgment following his jury conviction of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)). On appeal, he contends that because the testimonies of two eyewitnesses identifying him as the perpetrator were unreliable, there is insufficient evidence to support his conviction.
The judgment is affirmed.

Leonardo M. and Angelica N. appeal findings and orders of the juvenile court made at a six-month status review hearing under Welfare and Institutions Code section 366.21, subdivision (e). Court affirm.

A modification decision.

A jury found defendant, Charles Richard Olson, guilty as charged of the rape of an unconscious person, Jane Doe, in count 1. (Pen. Code, 261, subd. (a)(4).) In count 2, defendant was found guilty of assault (Pen. Code, 240), as a lesser included offense to assault with a deadly weapon, an automobile. In count 3, defendant was found guilty as charged of battery inflicting serious bodily injury. (Pen Code, 243, subd. (d).) Defendant was sentenced to six years in prison, and appeals. Defendant claims the trial court erred in (1) refusing to admit evidence that Doe told one of defendants friends she had been gang raped, for purposes of impeaching Does trial testimony; (2) in failing to instruct the jury, sua sponte, on the effect of third party attempts to suppress evidence against defendant with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 371, Alternative C, or a similar instruction; and (3) in failing to continue the trial, sua sponte, in order to allow defense counsel time to consult with a toxicology expert. Lastly, defendant claims that the cumulative effect of the trial courts errors requires reversal. Court find no individual or cumulative error, and affirm the judgment.

A jury convicted appellant Narciso Hernandez of second degree murder and possessing a sawed-off shotgun. He contends (1) the evidence was insufficient to sustain the second degree murder conviction; (2) the trial court erred in instructing the jury; (3) counsel rendered ineffective assistance; (4) the sentence imposed was cruel and unusual; (5) imposition of consecutive sentences was error; and (6) the trial court erred in the award of presentence credits. We reversed the second degree murder conviction and the accompanying enhancement on the basis of instructional error in our earlier opinion. After granting review, our Supreme Court remanded the matter to us to consider the issue of the sufficiency of the evidence to sustain the second degree murder conviction. Court again reverse the second degree murder conviction and the accompanying enhancement on the basis of instructional error. Court also conclude there was insufficient evidence to sustain the second degree murder conviction.

On September 27, 2006, in Tulare County Superior Court case No. VCF148503 (case 503), a jury convicted appellant Arturo Lua Lua of possession of a controlled substance (Health & Saf. Code, 11377; count 1) and possession of paraphernalia used for smoking a controlled substance (Health & Saf. Code, 11364; count 2), and found true an allegation that appellant had suffered a strike.[1] On September 28, 2006, in Tulare County Superior Court case No. VCF154557 (case 557), a jury convicted appellant of possession of a firearm by a person previously convicted of a felony ( 12021, subd. (a)(1); count 1) and possession of ammunitionby a person previously convicted of a felony ( 12316, subd. (b)(1); count 2), and found true allegations that appellant committed each offense while released on bail ( 12022.1) and that he had suffered a strike. On appeal, appellant contends the court erroneously (1) failed to stay execution of sentence on count 2 in case 557 pursuant to section 654; (2) imposed more than one on-bail enhancement in case 557; (3) calculated appellants presentence credits in case 557; and (4) failed to stay the section 1202.45 fine in case 503. The People counter that appellants appeal should be dismissed as untimely and that the court did not violate section 654. The People concede appellants remaining contentions. We will modify the judgment to correct errors regarding presentence credit in case 557, the parole revocation fine in case 503 and the on bail enhancement in case 557, and affirm the judgment as modified.

J.V., Sr. (father) appeals from an order made November 19, 2007, denying him family reunification services. Father contends that there is insufficient evidence to support the dependency courts findings under Welfare and Institutions Code section 361.5, subdivision (b)(6) and that the court abused its discretion by not finding in his favor under section 361.5, subdivision (c). He also argues that the court abused its discretion when it denied him visitation rights. Court disagree and affirm.

Ke. P. (father) appeals from the order made January 24, 2008, denying him family reunification services. Father contends that there is insufficient evidence to support the dependency courts findings under Welfare and Institutions Code section 361.5, subdivision (b)(13) and that the court abused its discretion by not finding in his favor under section 361.5, subdivision (c). Court disagree and affirm.

Appellant, David Raymond Sanchez, was charged in an information with felony evasion of a peace officer (Veh. Code, 2800.2, subd. (a), count one) and two counts of felony false imprisonment by violence (Pen. Code, 236 counts two & three). The information alleged appellant had a prior strike conviction within the meaning of the three strikes law ( 667, subds. (b)-(i) & 1170.12, subd. (a)) and a prior prison term enhancement.
On October 26, 2007, appellant entered into a plea agreement whereby he would admit count one, receive a stipulated sentence of six years, consisting of the upper term of three years doubled pursuant to the three strikes law, and the remaining allegations would be reduced to misdemeanors. On February 28, 2008, the trial court sentenced appellant to state prison on count one for six years. Appellant contends the trial court violated his rights under California v. Cunningham (2007) 549 U.S. 270 (Cunningham) in sentencing him to an upper term. Court disagree and will affirm.

On September 2, 2006, at approximately 8:00 p.m., in Tulare, Rose Rodriquez was in a car driven by Alejandro Govea when she noticed they were being followed by a car. Rodriquez told Govea to stop at a friends house and she drove from there. While Rodriquezs car was stopped, the other car turned around. As Rodriquez drove away, the other car got behind them again. Rodriquez turned into an alley and someone from the other car started shooting at Rodriquez and Govea. One shot hit Govea in the skull but did not penetrate it.
Following independent review of the record Court find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.