CA Unpub Decisions

Gasper Ontiveros and Irving Gayton appeal from the judgment after conviction by a jury. The jury found both Gayton and Ontiveros guilty of first degree murder of Salvador Rivera. (Pen. Code, 187, subd. (a); 189.)[1] The jury found true allegations that Ontiveros personally and intentionally discharged the firearm that killed Rivera ( 12022.53, subd. (d)) and, with respect to Gayton, that a principal was armed with a firearm ( 12022, subd. (a)(1)). The jury acquitted both defendants of the charged attempted murder of Jose Ramos. ( 187, subd. (a); 664.. The trial court sentenced Ontiveros to two consecutive terms of 25 years to life in state prison ( 187, subd. (a); 12022.53, subd. (d)) and sentenced Gayton to 25 years to life in state prison ( 187, subd. (a)), plus one year pursuant to section 12022, subdivision (a)(1). Court affirm.

Appellant Hratch Haladjian appeals from the judgment entered following a jury trial in which he was convicted of two counts of aggravated assault and one count of misdemeanor battery. (Pen. Code, 245, subd. (a)(1), 242). Appellant contends the evidence was insufficient to support the verdicts, the trial court erred by instructing upon flight, and the trial court erred by agreeing to admit evidence of three of appellants prior felony convictions. Court affirm.

Defendant Gustavo Perez appeals from the judgment entered following his jury conviction of five counts of robbery, one count of attempted robbery, and one count of assault by means likely to produce great bodily injury. (Pen. Code, 211, 664/211, 245, subd. (a)(1).)[1] The jury also found that he used a knife during the commission of one of the robberies and personally inflicted great bodily injury on the victim of the attempted robbery and assault. ( 12022, subd. (b), 12022.7, subd. (a).) Following a bench trial, the court found he had suffered four prior felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i), and 667, subdivision (a). Defendant claims that the courts use of an additional uniformed bailiff during the trial violated his right to due process and a fair trial. Court modify the judgment, order the abstract corrected, and, as modified, affirm.

Appellant Rodney Lamar Stanford was convicted of one count of stalking while a temporary restraining order was in effect and two counts of disobeying a temporary restraining order. He contends that imposition of the upper term on the stalking count violated his Sixth Amendment right to trial by jury. We requested supplemental briefing on whether the abstract of judgment was correct and whether imposition of sentence on all three counts violated Penal Code section 654s prohibition against multiple punishment. Having considered all of the briefing, Court find no error, and affirm.

Appellant Kevin Hayes was convicted by a jury of two counts of forcible rape (Pen. Code, 261, subd. (a)(2); counts 1 & 6),[1]one count of forcible oral copulation ( 288a, subd. (c)(2); count 2), two counts of sexual penetration by a foreign object ( 289, subd. (a)(1); counts 3 & 4), and one count of kidnapping to commit rape ( 209, subd. (b)(1); count 5). The jury also found true a kidnapping enhancement allegation as to five of the counts ( 667.61, subds. (a), (b), & (d)), and the court thereafter found at a bifurcated trial that the prior conviction allegations were true ( 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court sentenced appellant to a total prison term of 55 years to life. Appellants sole contention is that the court at sentencing denied him his constitutional rights to counsel of his choice and to due process and abused its discretion when it refused to allow a fourth continuance so appellant could finalize arrangements to retain new counsel to file a motion for a new trial. The contention is without merit.

Appellant Juan Nixon Hernandez appeals from the judgment entered following a jury trial in which he was convicted of four counts of resisting an executive officer (Pen. Code, 69) and two counts of willfully resisting, delaying, or obstructing a peace officer with attempted firearm removal ( 148, subd. (d)). Appellant contends the evidence was insufficient to support the verdicts, and the trial court erred by refusing to instruct upon self defense and failing to instruct, sua sponte, on a violation of section 148, subdivision (a)(1) as a lesser included offense of section 69. Court affirm.

A modification decision.

Defendant and cross-complainant Supara Ratanasadudi (defendant) appeals from the judgment following a jurys special verdict in favor of plaintiff and cross-defendant M. Darlene Allen (plaintiff) in this suit over a failed real estate transaction. Defendant contends the jurys verdict is not supported by substantial evidence. This contention fails because defendant did not include in the record all the material testimony on the issues she contends are without substantial evidence. Therefore, Court affirm the judgment.

Appellant Shane Williams appeals from the judgment entered following a jury trial in which he was convicted of attempted murder, assault with a deadly weapon, and corporal injury to childs parent (Pen. Code, 664; 187; 245, subd. (a)(1); and 273.5, subd. (a)). Appellant raises claims of evidentiary error and ineffective assistance of counsel. Court affirm.

G.A. appeals from the order of wardship (Welf. & Inst. Code, 602) entered following the juvenile courts determination that he committed battery on a school employee (Pen. Code, 243.6), committed vandalism causing less than $400 in damage (Pen. Code, 594, subd. (a)), and resisted a peace officer (Pen. Code, 148, subd. (a)(1)). All three crimes were declared to be misdemeanors. The petition arose as the result of a May 1, 2007 incident in which 13-year-old G.A. struggled with a Youth Service Worker and a Baldwin Park School District Officer who had been summoned to G.A.s residence to take him to school. The juvenile court ordered G.A. to serve 20 days in juvenile hall, but awarded him 20 days credit for time served; accordingly, at the hearing it placed him home on probation. It also imposed a $50 restitution fine. Although the juvenile court did not state, at the hearing, that it was imposing a maximum term of confinement, the courts minute order reflects a maximum confinement period of one year, four months.

Darion Bernard Elliot appeals his conviction for one count of possession for sale of cocaine base (Health & Saf. Code, 11351.5). His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). The Wende brief raises no issues but requests review of the in camera hearing that was held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Appellant was notified that he could file his own brief and did so. The judgment is affirmed.

Appellant George Andrew Lobato was convicted of attempted second robbery with three strike priors. He was sentenced to 41 years to life in prison pursuant to the Three Strikes Law. He contends that his conviction must be reversed due to insufficiency of the evidence. Court reject the contention and affirm.

We appointed counsel to represent appellant in this matter. After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We directed appointed counsel to immediately send the record on this appeal and a copy of the opening brief to appellant and notified appellant that within 30 days from the date of the notice he could submit by brief or letter any grounds of appeal, contentions or argument he wished us to consider. Appellant responded with a request that we relieve his appointed counsel. Court denied that request.

Ivan McAteer appeals from the judgment entered following his plea of guilty to the sale or transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) and his admissions that he previously had been convicted of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and previously had suffered a conviction for the transportation or sale of narcotics (Health & Saf. Code, 11370.2, subd. (a)). The trial court sentenced McAteer to seven years in prison. Because imposition of an enhancement pursuant to subdivision (a) of Health and Safety Code section 11370.2 resulted in an unauthorized sentence, Court reverse the judgment and remand the matter to the trial court to allow McAteer to withdraw his plea should he choose to do so.