CA Unpub Decisions

A jury found defendant and appellant Melvin Fisher guilty of assault with a deadly weapon, infliction of corporal injury on a cohabitant, kidnapping, attempted robbery, and second degree burglary. The trial court sentenced defendant to eight years in state prison. On appeal, defendant contends that (1) his sentences for the attempted robbery (count 4) and burglary (count 5) convictions should be stayed under Penal Code section 654; and (2) the use of a deadly weapon enhancement for his conviction on count 1 (assault with a deadly weapon) should be stricken. As set forth below, we hold that the trial court erred in imposing the weapon use enhancement as to count 1 (assault with a deadly weapon), and in imposing concurrent sentences for count 4 (attempted robbery) and count 5 (burglary).

Gabriel Zapata and Nancy Fuchs were charged with robbery (count 1; Pen. Code, 211) and burglary (count 2; Pen. Code, 459). They were further charged with one prison prior within the preceding five years. (Pen. Code, 667.5, subd. (b).) Zapata and Fuchs were tried together before a single jury. The jury convicted them of both charges. In a bifurcated trial, the court found true the prison prior allegations. Zapata was sentenced to a total of four years in prison. Zapata appealed. Zapata contends that the judgment must be reversed because he was deprived of his right to the conflict-free assistance of counsel. Court reject this contention and affirm.

R.A. (father) appeals from orders of the juvenile court sustaining a petition under Welfare and Institutions Code,[1] 300, subdivision (b), declaring his daughter, A.A. (the child), a dependent and removing her from his custody under section 361, subdivisions (a), (c)(1), (d), and (e)(1). Father contends the juvenile court (1) did not have sufficient evidence to find that the childs injuries occurred while she was in his custody, and (2) did not articulate a sufficient basis for finding a substantial risk of physical harm to the child requiring her removal from fathers custody, and no evidence in the record would support such a finding under the clear and convincing evidence standard. Counsel for minors has joined the position of the Riverside County Department of Public Social Services (Department) urging affirmance of the juvenile courts orders. We find no error, and Court affirm.

A jury found defendant guilty of receiving a stolen vehicle (Pen. Code, 496d, subd. (a)), eluding a pursuing peace officer (Veh. Code, 2800.2, subd. (a)), and resisting a peace officer (Pen. Code, 148, subd. (a)(1)).[1] The jury also found defendant not guilty of unlawfully driving or taking a vehicle. (Veh Code, 10851, subd. (a).) Defendant admitted suffering six prior strike convictions. (Pen. Code, 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A).) The court sentenced defendant to state prison for an indeterminate term of 25 years to life. Defendant makes two contentions: (1) the trial court erred by not instructing the jury about his defense of having an innocent intent at the time he received the stolen vehicle (CALCRIM No. 1751); and (2) the trial court erred by not staying his sentence (Pen. Code, 654) for resisting a peace officer because his acts of eluding a peace officer and resisting a peace officer constitute an indivisible course of conduct. Court affirm the judgment.

The People appeal from the trial courts decisions to grant defendant George Pitts motion to dismiss for lack of a speedy trial and to deny the Peoples motion for a continuance. The main issue before us is whether there was sufficient evidence to support the trial courts finding of prejudice from the delay in prosecution. The People contend that the trial court abused its discretion by relying on insufficient and incompetent evidence to support its finding of actual prejudice. Additionally, the People claim the trial court abused its discretion by refusing to allow them reasonably adequate time to respond. Court disagree with both contentions, and we affirm.

A jury found defendant guilty of robbery (Pen. Code, 211),[1]during which he used a knife ( 12022, subd. (b)(1)), burglary ( 459) and resisting a police officer ( 148, subd. (a)(1)). He was sentenced to prison for four years.
He appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potentially arguable issues and requesting this court to undertake a review of the entire record.
After concluding our independent review of the record, Court affirm the judgment, while directing the trial court to amend the minutes of the sentencing hearing and the abstract of judgment to correct errors appearing therein.

Pursuant to a plea agreement, defendant and appellant Kevin Little pled guilty to misdemeanor infliction of corporal injury on a spouse (Pen. Code, 273.5, subd. (a), count 1) and false imprisonment ( 236, count 2). The trial court sentenced him to the low term of 16 months in state prison with 178 actual days in custody and 88 days of conduct credit. Approximately two months later, defendant filed a notice of appeal challenging the validity of the appeal. Court affirm.

Father appeals from an order terminating his parental rights with respect to two children pursuant to section 366.26 of the Welfare and Institutions Code.[1] He contends that the court erred by denying him an evidentiary hearing on his request for reunification services pursuant to section 388. The request was based in part upon the assertion that he did not receive notice of the proceedings until after the section 366.26 hearing had been set. Plaintiff, San Bernardino County Department of Childrens Services (DCS), argues that father was given a hearing that complied with the requirements of section 388, and that the court did not abuse its discretion in denying the petition. Court hold that father has failed to show any prejudicial error in the conduct of the hearing and that the denial of the petition was not an abuse of discretion. Accordingly, Court affirm.

A jury convicted Richard Daniel Hernandez of two counts of first degree murder (Pen. Code, 187, subd. (a)) in the shooting death of America Gonzalez and her unborn child. Hernandez was sentenced to two terms of life without the possibility of parole, plus 50 years for the personal use of a firearm enhancement. ( 12022.53, subd. (d).) Hernandez contends that his conviction must be reversed because (1) the trial court improperly instructed the jury with accomplice instructions; (2) the investigating officer improperly opined as to the veracity of the primary prosecution witness; and (3) the trial court erred in admitting evidence that Hernandez had a propensity to commit acts of domestic violence pursuant to Evidence Code section 1109. Hernandez also argues, and the People concede, that the trial court erroneously imposed a parole revocation fine pursuant to section 1202.45 because he never will be eligible for parole. Court agree with the last argument, but otherwise will affirm the judgment in its entirety.

A jury found appellant guilty of battery by a confined person upon a non-confined person (Pen. Code, 4501.5).[1] The victim was appellants court-appointed attorney,
Mr. Robert Stover, who was representing appellant at a trial on a misdemeanor charge. Appellant struck Mr. Stover and yelled conflict of interest as Stover was making an argument to the court in support of a defense motion to exclude evidence in regards to prior acts of appellant. The jury also found true allegations that appellant had prior convictions for violations of PC 187(a) (murder) and PC 245(a)(1). The section 4501.5 conviction was appellants third strike, and he was sentenced to a term of 25 years to life.
Appellant raises five contentions of error. They are: (1) the trial court erred in failing to instruct the jury with a necessity defense instruction not requested by the defense at trial; (2) the trial court erred in permitting the prosecution to impeach appellants trial testimony with evidence of appellants prior convictions for murder and assault with a deadly weapon, and refused a bifurcated trial on the prior conviction allegations; (3) the cumulative effect of purported errors (1) and (2) above deprived appellant of a fair trial; (4) the trial court deprived appellant of his right to a jury trial on the prior conviction allegations by instructing the jury with CALCRIM No. 3100; and (5) the court erred in sentencing appellant as a third striker because (a) appellants jury was not permitted to decide whether his section 245, subdivision (a)(1) prior conviction qualified as a strike under the three strikes law, (b) the court made no express finding that the section 245, subdivision (a)(1) prior conviction was a strike, and (c) the evidence was insufficient to establish that the section 245, subdivision (a)(1) prior conviction was a strike.. As we shall explain, Court find all of these contentions to be without merit. Court affirm the judgment.

Plaintiffs Michael Brooks (Brooks) and Kimmie Brown were inside an apartment, along with their children Michael Brooks, Jr., Mikayla Brooks, Javanta Evans, Mister Brooks, Markesa Evans, Jerry Whitehead, Terry Whitehead, and Alphonso Davis (collectively plaintiffs). Brown rented the apartment and lived there with her children. Brooks and his children were spending the night at the apartment, with Browns consent.
Plaintiffs contend the trial court erred in instructing the jury that if it concluded exigent circumstances existed at the time of the entry into the apartment, then the officers conduct was lawful. Plaintiffs argue that the instruction was erroneous because, as a matter of law, there were no exigent circumstances present when the officers forcibly entered the apartment. Court agree.

Following the denial of his motion to suppress, Rigoberto Vargas Casillas (appellant) pled no contest to one count of murder (Pen. Code, 187) and was sentenced to 25 years to life in prison. Appellant contends the trial court erred in denying his Penal Code section 1538.5 motion to suppress evidence. Court disagree and affirm.

Arturo B. (Father) and Johanna Q. (Mother) appeal from the order terminating parental rights to their son, J.B. (Welf. & Inst. Code, 366.26.)[1] Father contends all orders in this dependency proceeding are void because he was not properly served with notice of the proceedings. Mother contends the juvenile court erred by failing to apply the parental benefit exception to termination of parental rights. ( 366.26, subd. (c)(1)(B)(i).) Court find no error and affirm the order.

Appellant, S.S. appeals from a Juvenile Court Order continuing dependency and family reunification services after a six month review hearing, pursuant to Welfare and Institutions Code section 366.21.[1] N.W., S.S.s 14 year old daughter, was adjudged a dependent child and removed from S.S.s home after S.S. threw salt at N.W.s head and failed to protect N.W. from her older brothers physical abuse. This court affirmed that jurisdictional and dispositional order in case number H031735. Thereafter, the juvenile court proceeded to an uncontested six month review hearing, where after considering the evidence, it adopted the recommendations of the Santa Cruz County Human Resources Agency to continue reunification services for another six months. This timely appeal ensued. Court appointed counsel to represent appellant in this court.