CA Unpub Decisions

Following a bench trial, the trial court convicted Jessie Giger of corporal injury to a cohabitant (Pen. Code, 273.5, subd. (a))[1]and misdemeanor vandalism ( 594, subd. (a)) while sustaining two prior prison term enhancements ( 667.5, subd. (b)). The court sentenced defendant to six years in prison. On appeal, defendant claims error in the denial of his motion to enter an additional plea of not guilty by reason of insanity and ineffective assistance of counsel. We shall reverse the judgment and remand for a hearing on defendants tender of his plea of not guilty by reason of insanity.

In August 2005, a West Sacramento police officer followed a van to an apartment complex where the driver got out and walked away. A registration check revealed that the vans license plates had been issued to a 1997 Dodge. Because the van appeared to be newer than that, the officer approached and observed that the steering column had been cracked and wrapped with cloth. The officer obtained the vehicle identification number and discovered that the van was a stolen 2001 Dodge. The officer drove around the block and observed the driver, defendant, less than a block from the stolen van. Defendant was arrested. The owner of the license plates informed the officer that they had been stolen in August 2005. The owner of the van told the officer that it, too, had been stolen.
The judgment is affirmed.

A jury convicted Nathaniel J. Guillen of second degree murder (Pen. Code, 187, subd. (a))[1] and attempted murder ( 187, subd. (a), 664). The jury also found that he personally discharged a firearm causing death or great bodily injury ( 12022.5, subd. (a), 12022.53, subds. (c), (d), 12022.7, subd. (a)) and committed the offenses for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The court granted a motion for acquittal for the attempted murder of a third person. The court imposed a determinate term of five years plus an indeterminate term of 65 years to life.
Guillen contends his convictions must be reversed because the trial court failed to sua sponte instruct on the right to self defense after withdrawing from a mutual combat and to disregard evidence relating to the third shooting after the court had granted his motion for acquittal. He also contends there was insufficient evidence to support his attempted murder conviction or the criminal street gang enhancement and the court erred in staying, rather than striking, some of the enhancements. Court affirm the judgment.

A modification decision.

Jeffrey Gong appeals an order denying his motion to disqualify Dan Lawton and the Lawton Law Firm (together, Lawton) as counsel for defendants David Gong and RFG Oil, Inc. (RFG). Jeffrey asserts that an actual conflict of interest exists between David and RFG and that Lawton must be disqualified from representing RFG, but can remain as counsel for David. Court agree and reverse and remand with directions.

Defendant Winfred Ontwin Sonnier contends the trial court erred in imposing a restitution fine and a corresponding parole revocation fine of $3,200. He argues that the court improperly included petty theft in its calculation under the statutory formula, although that sentence was stayed. Court agree with defendant, and therefore reverse the judgment and remand the case to allow the trial court to recalculate those fines in accordance with this opinion.

After a contested hearing, the juvenile court sustained allegations of burglary (Pen. Code,[1] 459) and receiving stolen property ( 496, subd. (a)) against Gary C. The court declared Gary a ward of the court and placed him on probation in his parent's custody. Gary appeals, contending the court erred in denying his motion to suppress evidence. Court affirm.

Michelle F., a resident of New Mexico, appeals a judgment declaring her minor son, T.F., a dependent of the juvenile court and removing T.F. from her custody. Michelle contends: (1) the court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, 3400 et seq.);[1](2) the court should have declined to exercise jurisdiction as an inconvenient forum under section 3427 because New Mexico was a more convenient forum; (3) the evidence was insufficient to support the court's dispositional order removing T.F. from Michelle's custody; and (4) the court's placement and visitation orders were not sufficiently tailored to address the issues that gave rise to the dependency.
Court conclude the court properly exercised its emergency and continuing jurisdiction under the UCCJEA and properly declined to transfer jurisdiction to New Mexico; substantial evidence supports the court's dispositional order; Michelle forfeited her right to challenge the court's placement and visitation orders; and in any event, those orders were proper under the circumstances. Accordingly, Court affirm the judgment.

Freddie L. and Rachel L. (together the parents) seek review of juvenile court orders terminating their reunification services regarding the dependency of their daughter, R.L., and referring the case for a Welfare and Institutions Code section 366.26 hearing. After considering an agreement among the parties, we grant the parents' petitions and order the juvenile court to hold a new 18 month hearing.

A jury convicted defendant of first degree murder. (Pen. Code, 187, subd. (a).)[1] The jury found true the special circumstances that the victim had been killed (1) to prevent her from testifying in a criminal proceeding ( 190.2, subd. (a)(10)) and (2) during a burglary ( 190.2, subd. (a)(17)(G)). Defendant was sentenced to prison for life without the possibility of parole. He appeals, claiming the jury was misinstructed as to one of the theories of first degree murder and the during-a-burglary special circumstance. The People agree. However, the parties part company on the consequences of these errors. Defendant contends that his conviction for first degree murder must be reversed, which necessarily vacates the special circumstance findings, and because substantial evidence supporting a proper during-a-burglary special circumstance was lacking at trial, he may not be retried for that circumstance. The People assert that we may affirm his conviction for first degree murder, despite the instructional error, and uphold the special circumstance that the victim was killed to prevent her from testifying in a criminal proceeding. Court reverse the first degree murder verdict and conclude that defendant may be retried for the during a burglary special circumstance.

Defendants James Probus (defendant) and Sebastian Martinez (Martinez) were charged in an amended information with first degree murder. The information further alleged that defendant and Martinez personally and intentionally discharged a firearm, causing great bodily injury or death. It additionally contained special circumstance allegations relative to defendant and Martinez committing the murder while engaged in the commission or attempted commission of robbery and burglary. Defendant and Martinez were tried together before separate juries. Court find no error, and affirm the judgment of conviction.

A jury convicted defendant of crimes arising from three incidents of sodomy committed against his 12-year-old sister. In a bifurcated trial, the court found that a prior strike allegation was true. The court sentenced defendant to a determinate term of 36 years, plus an indeterminate term of 30 years to life.
Defendant contends: (1) because the court imposed the upper term sentences based upon facts not found by the jury, the sentence violates his Sixth and Fourteenth Amendment right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham); and (2) the trial court erred in failing to hold a Marsden[2]hearing when he moved for a new trial based upon ineffective assistance of counsel. We reject these contentions. The People assert that we should correct an error by the trial court in tacking on one year to defendants determinate sentence for an enhancement that was not alleged. Court direct that the judgment be amended to correct the unauthorized sentence and affirm the judgment as modified.

Defendant Sandy Green was charged with vehicular manslaughter without gross negligence, a violation of former Penal Code section 192, subdivision (c)(3). It was further alleged that defendant was driving a vehicle in violation of Vehicle Code Sections 23152 and 23153 and in the commission of an unlawful act, not amounting to a felony, to wit, a violation of Vehicle Code Section 22101(d) and in the commission of a lawful act which might produce death, in an unlawful manner. Defendant appeals, contending that the trial court erred: (1) in excluding evidence that the deceased victim was speeding and under the influence of marijuana at the time of the crash, (2) in giving CALCRIM No. 220, the reasonable doubt instruction, and (3) in refusing to grant probation. The judgment is affirmed.

The trial court issued a preliminary injunction preventing Ronald Naulls and his business enterprise, Healing Nations Collective (HNC), a medical marijuana dispensary operating within the City of Corona (the City), from conducting any further operations. The court found that, because HNC was operating as a non-permitted, non-conforming use, its operation constitutes a nuisance per se, which the City may abate by seeking injunctive relief in this Court. On appeal, Naulls and HNC challenge the sufficiency of the evidence to support the order, contending the courts finding as to non permitted, non conforming use is based on a faulty legal premise. Court affirm.