CA Unpub Decisions

Tyrone L. appeals from a dispositional order committing him to the Division of Juvenile Facilities (DJF)[1]for a maximum confinement time of seven years after the juvenile court found true the allegations that he committed assault with intent to commit rape, burglary, robbery and assault by means likely to produce great bodily harm. Defense counsel had argued for a less restrictive placement. The juvenile court disagreed, primarily because of the egregious nature of the offenses perpetrated by Tyrone L. and his lack of remorse. On appeal, Tyrone L. contends the juvenile court abused its discretion in committing him to DJF, imposing the maximum confinement period of seven years, and issuing a no contact order. Although we strike the no contact order, in all other respects Court affirm the disposition ordered by the juvenile court.

On October 10, 2007, a criminal complaint was filed charging appellant, David Al Sua, with second degree burglary (Pen. Code, 459/460, subd. (b), count one),[2]receiving stolen property ( 496, subd. (a), count two), and petty theft with a prior qualifying conviction ( 666, count three). The complaint alleged three prior prison term enhancements ( 667.5, subd. (b)). On October 17, 2007, Sua entered into a plea agreement in which he would enter a no contest plea to count three and admit one prior prison term enhancement for a prison term of three years. Allegations in other, unrelated actions were to be dismissed. Sua executed a felony advisement, waiver of rights, and plea form setting forth these terms. The judgment is affirmed.

On July 5, 1999, a neighbor took appellant Marino Cortes Mendozas wife to the store to buy milk. Mendoza saw her there and told her to get in the car. As Mendoza drove away with his wife, he struck her with his hand. At his wifes request, Mendoza dropped her off at her cousins house.
The judgment is affirmed.

Defendant Raphael Hunter appeals an order extending his state hospital commitment for an additional year pursuant to Penal Code section 2970. Defendant's counsel advises this court that his examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738 (Anders) [87 S.Ct. 1396]; People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised his client in writing that a Wende brief was filed and that he had the right to personally file a supplemental brief in this case within 30 days. We have received no response from appellant. We conclude, consistent with Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) recommitment proceedings pursuant to section 2970 are not subject to Wende review. Accordingly, Court dismiss the appeal.

This is an appeal from a judgment of conviction after a jury trial. The jury found appellant Terrence Lorran Smith guilty of three counts of residential burglary, two counts of assault with intent to commit a sexual offense, and one count each of forcible oral copulation, forcible rape, and forcible penetration by a foreign object. Appellant contends the judgment must be reversed because the trial court erred in denying his motion to sever certain of the counts, in admitting a nurses prejudicial testimony, and in declining to stay imposition of sentences with respect to two of the counts. Court modify the judgment to stay execution of the sentence imposed with respect to one of the assault counts, and affirm the judgment as modified.

A jury convicted appellant Morris Lenois Facen of attempting to evade a police officer while driving recklessly (Veh. Code, 2800.2, subd. (a)) after the court gave supplemental jury instructions derived from People v. Moore (2002) 96 Cal.App.4th 1105, 1118 1119. On appeal, appellant argues the supplemental jury instructions were coercive because they unduly influenced the jury into reaching a guilty verdict. Court disagree, and Court affirm.

A jury found Tracy Edward Johnson guilty of vehicle theft (count 1; Veh. Code, 10581, subd. (a)) and possessing stolen property, the key to the same vehicle (count 2; Pen. Code, 496, subd. (a)).[1] In bifurcated proceedings, Johnson admitted enhancing allegations of a 1994 vehicle theft ( 666.5, subd. (a); Veh. Code, 10851, subd. (e)), and a 2004 firearm possession ( 12021, subd. (a)) alleged as a prison prior ( 667.5, subd. (b)). The People conceded that two other alleged prison priors were not in fact convictions, but parole violations. The court sentenced Johnson to an aggregate seven years in prison, comprised of a four-year upper term for count one, a concurrent upper term of three years on count two, plus three years for prison priors.
Johnson appeals, challenging (1) the prison-prior enhancements, as being based on three priors rather than the single one he admitted, and (2) the concurrent term on count two, arguing that it had to be stayed to avoid double punishment under section 654. We agree with point one, which is conceded by the People, but disagree with point two. Court remand for correction of the priors enhancements.

Appellant Clarence Michael Garrison was tried before a jury and convicted of one count of rape and one count of sexual penetration with a foreign object, each accomplished against a person who was prevented from resisting by an intoxicating, anesthetic or controlled substance. (Pen. Code, 261, subd. (a)(3), 289, subd. (e).)[1] The court denied probation and sentenced him to prison for the six-year middle term on the rape count and a two-year consecutive term (one-third the middle term pursuant to section 1170.1, subd. (a)) on the sexual penetration count. Appellant contends the evidence was insufficient to establish that he knew or reasonably should have known that the victim was prevented from resisting the acts due to her ingestion of drugs. Court affirm.

Searles Valley Mineral Operations, Inc. appeals a judgment denying it indemnification from respondent FL Smidth, Inc. Appellant is the assignee of another entitys contractual right to indemnification from respondent. The indemnification claimed is for expenses incurred in defending and settling a lawsuit arising out of a fatal industrial accident. Appellant argues the trial court erred in applying the relevant contractual provision. Court affirm.

Robert L. Chaney appeals from an order determining child support arrearages and issuing a wage and earnings assignment. He challenges the jurisdiction of the court, the procedure employed by the County of Los Angeles Child Support Services Department (the County), and enforceability of the child support order. He claims that his obligation was terminated in 1989. He also challenges the impartiality of the trial court judge, and asserts that his obligation was discharged in bankruptcy. Court find no basis to reverse, and affirm.

The trial court dismissed a lawsuit for delay in prosecution. (Code Civ. Proc., 583.410.) This occurred 13 months after the complaint was filed. The dismissal was not authorized: the court may not use the discretionary dismissal statutes to terminate an action pending less than two years. ( 583.420, subd. (a).)

Rashone Andre Lewis appeals his conviction for receiving stolen property. He argues the trial court erred in denying his motion to suppress evidence gained from the search of a tractor and two trailers at the crime scene. Because the search was conducted pursuant to a warrant supported by probable cause, Court affirm.

A jury convicted Erick Nunez (Nunez) of three counts of attempted murder of a peace officer (counts 1, 3, 4) (Pen. Code, 664/187, subd. (a));[1]four counts of attempted willful, deliberate and premeditated murder of a peace officer ( 664/187, subd. (a)) (counts 7, 8, 31, 32); attempted voluntary manslaughter of a peace officer ( 664/192, subd. (a)) (count 2); four counts of assault with a semiautomatic firearm upon a peace officer ( 245, subd. (d)(2)) (counts 5, 6, 33, 34); two counts of assault with an assault weapon upon a peace officer ( 245, subd. (d)(3)) (counts 9, 10); shooting at an inhabited dwelling ( 246) (count 11); first degree burglary ( 459) (count 12); three counts of false imprisonment of a hostage ( 210.5) (counts 13, 14, 15); three counts of assault with a firearm ( 245, subd. (a)(2)) (counts 18, 19, 20); evading an officer with willful disregard (Veh. Code, 2800.2, subd. (a)) (count 27); possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 28); and two counts of assault with a weapon on a peace officer ( 245, subd. (d)(3)) (counts 29, 30). Numerous firearm-use allegations were found true with respect to all counts. ( 12022, subd. (a)(2), 12022.5, 12022.53, subds. (b), (c), (e)(1).) All gang enhancement allegations were found not true. ( 186.22, subd. (b)(1)(c).)
The judgments are modified to stay pursuant to section 654 the sentences imposed on appellants for the burglary conviction in count 12. Morados and Nunezs determinate terms are each reduced by one year four months for the burglary and one year four months for the accompanying enhancement pursuant to section 12022.5. In all other respects, the judgments are affirmed. The superior court is directed to amend the abstracts of judgment and to forward amended copies to the Department of Correction and Rehabilitation.

A modification decision.