CA Unpub Decisions

Lisa B. appeals a judgment declaring her minor sons Aaron B. and Noah B. (together, minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b)[1]and removing them from her custody under section 361, subdivision (c). Lisa challenges the sufficiency of the evidence to support the court's jurisdictional findings and dispositional order. Court affirm the judgment.

Dawn L. and H.S. appeal the judgment terminating their parental rights over Evelyn S. and Diego S. H.S. contends the juvenile court erred by declining to apply the beneficial relationship exception to termination (Welf. & Inst. Code, 366.26, subd. (c)(1)(B)(i)). Dawn's counsel filed a brief pursuant to In re Sade C. (1996) 13 Cal.4th 952 (Sade C.), but later filed a letter and a reply brief joining in H.S.'s contention. Court affirm.

A jury found defendant guilty of two counts of domestic violence (Pen. Code, 273.5, subd. (a))[1](counts 1 and 8); two counts of false imprisonment ( 236) (counts 2 and 5); one count of making criminal threats ( 422) (count 3); one count of assault with a deadly weapon ( 245, subd. (a)(1)) (count 4); one count of being a felon in possession of a firearm ( 12021, subd. (a)(1)) (count 6); and one count of deterring or resisting an executive officer ( 69) (count 7). As to the two counts of domestic violence ( 273.5, subd. (a)) and the one count of assault with a deadly weapon ( 245, subd. (a)(1)), the jury found true the allegations that defendant inflicted great bodily injury ( 12022.7, subds. (a) & (e)) and that the offenses constituted serious felonies ( 1192.7, subd. (c)(8)). Defendant admitted suffering one prior strike conviction ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)); one prior serious felony conviction ( 667, subd. (a)); and five prior convictions that resulted in prison terms ( 667.5, subd. (b)). The court sentenced defendant to state prison for a term of 25 years.
Defendant makes three contentions. First, defendant contends the evidence that he resisted an executive officer ( 69) does not meet the substantial evidence standard. Second, defendant argues that the trial court erred by not instructing the jury on the offense of resisting or obstructing a peace officer ( 148, subd. (a)(1)), because it is a lesser included offense of resisting an executive officer ( 69). Third, defendant contends his trial counsel was ineffective, because he failed to object to the admission of hearsay statements. Court affirm the judgment.

Defendant was convicted of attempted murder (Pen. Code,[2] 187, subd. (a), 664; count 1), shooting at an occupied vehicle ( 246; count 2), unlawful possession of a gun ( 12021, subd. (a)(1); count 3), active participation in a criminal street gang ( 186.22, subd. (a); count 5), and second degree burglary ( 459; count 6). Defendant appeals, contending that (1) he was denied his right to self-representation, (2) the evidence was insufficient to prove that he had the specific intent to kill, and (3) the evidence was insufficient to prove the gang enhancements.
Finding no error, Court affirm.

A jury convicted defendant of assault with a firearm (Pen. Code, 245, subd. (a)(2)),[1]during which he used a handgun ( 12022.5, subd. (a)) and inflicted great bodily injury ( 12022.7, subd. (a)), possession of a firearm by an ex-felon ( 12021, subd. (a)(1)) and discharge of a firearm in a school zone ( 626.9, subd. (d)). The jury further found that all three offenses had been committed to benefit a criminal street gang ( 186.22, subds (b)(1)(A) & (C)) and defendant had inflicted great bodily injury while discharging a firearm in a school zone. In bifurcated proceedings, the trial court found defendant had suffered a prior conviction for which he served a prison term, based on defendants admission. ( 667.5, subd. (b)) Defendant was sentenced to prison for 21 years. He appeals claiming the trial court misinstructed the jury about matters of which it took judicial notice in relation to the gang enhancement allegations, insufficient evidence supported the gang enhancement and great bodily injury true findings, his admission of his prior was taken without adequate advisements and waivers and sentencing error occurred. We reject all his contentions, save the sentencing one. As to that, we agree with defendant that the sentencing court violated section 654 by imposing enhancements for his use of a firearm and for his infliction of great bodily injury, while, at the same time, relying on both of those facts to impose a greater gang enhancement than it could have absent those facts. Court therefore affirm the convictions, the true findings and the sentences for the convictions and the findings, except for the sentences imposed for the findings attached to the assault with a firearm. As to those, Court reverse and remand the matter to the trial court to resentence defendant in a manner consistent with the views expressed in this opinion.

Defendant Earl J. Robbins was found, by a jury, to be incompetent to stand trial. At the competency hearing, his counsel chose to have defendant wear prison clothing, and defendant was shackled due to concerns he had a potential for violence. A commitment order to Patton State Hospital ordered that defendant be administered antipsychotic medication involuntarily if he refused to take the prescribed medications. Subsequent to the filing of the instant appeal, defendant was found competent to stand trial by officials at Patton State Hospital, he was transferred back to the custody of the Riverside County Sheriffs Department, and trial proceedings have resumed. In this appeal, defendant contends:
Since during the pendency of this appeal defendant has been certified competent to stand trial and the commitment order requiring involuntary medication has expired, the instant appeal is dismissed as moot.

After defendant was found mentally competent to stand trial, a jury found him guilty of child abuse. (Pen. Code, 273d, subd. (a).)[1] The trial court thereafter found true that defendant had sustained a prior prison term. ( 667.5, subd. (b).) Defendant was sentenced to a total term of three years in state prison. On appeal, defendant contends (1) the trial court erred in instructing the jury with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 372 (the flight instruction), and (2) the trial court abused its discretion in denying him probation. Court reject these contentions and affirm the judgment.

On June 6, 2005, defendant argued and fought with his stepfather and tried to stab him. He also threatened to kill his stepfather and his uncle.
A jury convicted defendant of one count of assault with a deadly weapon ( 245, subd. (a)(1)); two counts of making criminal threats ( 422); one count of possession of a firearm by a felon ( 12021, subd. (a)(1)); and two counts of dissuading a witness. ( 136.1, subd. (c)(1).) The third count included a special allegation, which the jury found true, that defendant had personally used a firearm. ( 12022.5, subd. (a).) Defendant admitted he had served a prison term for a felony conviction. ( 667, subd. (b).) The court sentenced defendant to a total prison term of 15 years four months. Court affirm the judgment but order the abstract of judgment to be modified to stay the eight-month sentence on count 2.

Defendant Enrique Cota Angulo attempted to collect a $500 debt from Carlos Garibay. When Garibay refused to repay the debt, defendant fired his gun at or near Garibay. judgment entered following a jury conviction for assault with a firearm (Pen. Code, 245, subd. (a)(2); count 2). The jury also found true the allegation that defendant personally used a firearm in committing the offense ( 1192.7, subd. (c)(8), 12022.5, subd. (a)). The jury found defendant not guilty of attempted premeditated murder ( 187, subd. (a), 664; count 1) and of making criminal threats ( 422; count 3). The trial court sentenced defendant to seven years in prison.
Court reject defendants contentions and affirm the judgment.

The court ordered defendants commitment as a mentally disordered offender be continued. (Pen. Code, 2970.) Defendant contends the trial court erred in ordering that her commitment be continued, because the court improperly relied on hearsay statements. Court affirm the order.

Defendant Felipe Fuentes (Fuentes) appeals from an order of the trial court denying his motion to set aside a default judgment against him. He asserts that because his attorney filed an affidavit of fault, the trial court was required to set aside the judgment under Code of Civil Procedure section 473, subdivision (b). Court disagree and affirm.

Defendant appeals from convictions for possession for sale of controlled substances arising from seizures made during the execution of two separate search warrants. He challenges (1) the order granting consolidation of the two cases filed respecting the drugs seized on the occasion of each search warrant execution; (2) the sufficiency of the evidence to support one of the possession-for-sale counts; (3) the sufficiency of the evidence to support the arming enhancement (Pen. Code, 12022, subd. (c)) as to the two possession for sale counts; (4) the order staying, rather than striking, the enhancements to the possession for sale counts relating to defendants prior convictions for drug violations (Health & Saf. Code, 11370.2, subd. (c)); and (5) error in imposing a term for the on bail enhancement with respect to a count that had been stayed. Court affirm as modified.

A jury found defendant guilty of possession of a firearm by a felon (Pen. Code, 12021, subd. (a))[1](count 1), possession of ammunition by a felon ( 12316, subd. (b)(1)) (count 2), and receiving stolen property ( 496, subd. (a)) (count 3). In a bifurcated proceeding, the trial court found true that defendant had served three prior prison terms ( 667.5, subd. (b)) and two prior strike convictions ( 667, subd. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A).) Defendant was sentenced to a total term of 28 years to life in state prison as follows: 25 years to life on count 1, plus an additional three years for the three prior prison term enhancements; the same sentences were imposed on counts 2 and 3 to run concurrently.
On appeal, defendant contends (1) his sentence on count 2 should have been stayed pursuant to section 654; (2) there was insufficient evidence to sustain his conviction on count 3; and (3) the trial court abused its discretion in declining to dismiss one or more of his prior strike convictions. Court agree with the parties that defendants sentence on count 2 should have been stayed but reject defendants remaining contentions and affirm the judgment.

A search warrant was served at the residence of defendant and appellant George Gus Garcia. The search warrant had been obtained with respect to a home-invasion robbery. Although apparently no evidence linking defendant to the robbery was discovered, the deputies did find weapons and items indicative of a methamphetamine manufacturing operation; defendant was charged accordingly. Following the denial of his motion to suppress evidence (Pen. Code, 1538.5), defendant pleaded guilty to manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a)), possession of an unlawful firearm (Pen. Code, 12020, subd. (a)), and being an ex-felon in possession of a firearm and ammunition (Pen. Code, 12021, subd. (a)(1), 12316, subd. (b)(1)). On appeal, his sole issue is a claim of error in the denial of his motion to suppress and/or traverse the search warrant. Court reject his contentions and affirm the judgment.