CA Unpub Decisions

In two separate cases (Nos. RIF130449 & RIF131191), defendant Brent Terrell Cowan pled guilty to robbery (Pen. Code,[1] 211; count 1) and admitted the enhancement allegation that he personally used a firearm within the meaning of sections 12022.53, subdivision (b), and 1192.7, subdivision (c)(8). The trial court imposed a total sentence of 15 years in state prison, pursuant to the plea agreements defendant signed.
On appeal, defendant contends: 1) his guilty pleas were not valid since they were based on incorrect information as to the maximum possible custody commitment for both cases; 2) his upper-term sentences violated his Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L. Ed.2d 856] (Cunningham); and 3) there was an insufficient factual basis for the plea in case number RIF130449. Court affirm.

Plaintiff and respondent Yolanda Velasquez Ochoa was a bus passenger who was injured during a bus/car collision. She filed a personal injury action against the car driver, as well as defendant and appellant Omnitrans, the bus company, and James Montgomery, Omnitranss bus driver. After a jury trial, the court entered a judgment in favor of Omnitrans and Montgomery. Plaintiff moved for a new trial; the court granted the motion. Omnitrans appeals.

A jury convicted defendant of first degree murder under a felony-murder theory pursuant to which she aided and abetted a robbery in which one of her coparticipants killed one of the victims (count 2Pen. Code, 187, subd. (a), 189). On appeal, defendant contends the People failed to adduce sufficient evidence to support the requisite conclusions inherent in the verdict that her coparticipants primary intent was to rob, rather than merely execute, the victim and that defendant aided and abetted that robbery. Defendant further maintains the court erred in failing to give a sua sponte pinpoint instruction requiring that the jury find the perpetrators primary purpose was to rob, rather than execute, the victim before it could find defendant guilty of felony murder. We find the verdict supported by substantial evidence and, therefore, affirm the judgment below. Defendants execution theory of the murder was not raised below and is completely unsupported by any of the evidence; hence, the court did not err in failing to give, sua sponte, the specific pinpoint instruction requested by defendant for the first time on appeal. The judgment is affirmed.

Defendant Eugenio Montiel Gonzalez appeals seeking reversal of his jury conviction for first degree murder; he contends there is insufficient evidence of premeditation and deliberation. The judgment is affirmed.

Defendant Randall Ray Stuart appeals his sentence of 150 years plus 27 years four months in state prison. He argues a remand is necessary because the trial court did not realize it could impose terms concurrently rather than consecutively and did not state any reasons for imposing consecutive terms as required by California Rules of Court, rule 4.406. He also contends a remand for resentencing is necessary because the sentence imposed on his offense of felon in possession of a firearm violates the Penal Code section 654 prohibition against multiple punishments.
The sentence is reversed in part and remanded for the limited purpose of allowing the Superior Court of Riverside County to exercise its discretion pursuant to sections 1170.12, subdivision (a)(6) and (7), and 667, subdivision (c)(6) and (7), to determine whether to impose concurrent or consecutive sentences on all counts based on the criteria and limitations set forth in rule 4.425 of the California Rules of Court. The judgment is affirmed in all other respects.

The court found defendant in violation of a condition of his probation and sentenced him to the previously stayed term of two years imprisonment. In calculating the award of defendants presentence custody credits, the court utilized a previous courts determination that defendant had formerly acquired an aggregate of 369 days of custody credits, consisting of 247 days actual and 122 days good conduct. On appeal, defendant contends the court erroneously failed to give him three days actual and two days good conduct credits. The People concede the issue. Court agree and direct the trial court to award defendant the additional credits.

Appellant Ramon O., Sr. (Father) is the father of Isaac O., now six years old, and Ramon O., Jr., now eight years old (children). Father appeals from the juvenile courts judgment, entered after holding a hearing under Welfare and Institutions Code section 366.26,[1]terminating his parental rights and selecting adoption with the unrelated foster parents as the childrens permanent plan. Father argues: 1) the juvenile court erred when it failed to apply the sibling relationship exception, now found at section 366.26, subdivision (c)(1)(B)(v),[2]to the presumption for adoption; and 2) the juvenile court and Department of Childrens Services (DCS) did not fulfill their duty of inquiry under the Indian Child Welfare Act (ICWA). As discussed below, Court conclude that the juvenile court correctly declined to apply the sibling exception and that, even if the juvenile court did not fulfill its inquiry duties under ICWA, Father did not make the required showing of prejudice. For these reasons, Court affirm the juvenile courts orders.

An information alleged that, on May 27, 2007, defendant committed one count of spousal rape (Pen. Code, 262, subd. (a)(1))[1]and one count of spousal battery ( 273.5, subd. (a)). It was further alleged that defendant had one prior strike conviction ( 667, subds. (c) & (e)(1)), which also constituted a prior serious felony conviction ( 667, subd (a)), and one prison prior ( 667.5, subd. (b)). Court affirm. Court conclude that: (1) the trial court did not violate defendants right to a fair trial in instructing the jury regarding readback requests and questions during deliberations; (2) a sua sponte instruction on self-defense was not supported by substantial evidence; and (3) a sua sponte unanimity instruction was not required because the prosecutor made an affirmative election regarding the factual basis of the spousal battery charge. Accordingly, defense counsel was not ineffective for failing to request instructions on self defense or unanimity.

Respondent having conceded that petitioner is entitled to relief, and in accordance with petitioners request that the matter be returned to the trial court as soon as possible, the alternative writ of mandate is recalled.
This order shall be final forthwith.

A subsequent petition dated October 12, 2007, alleged that the minor committed the crime of vandalism (Pen. Code, 594, subd. (b)(1))[1]by inscribing graffiti on the walls of the Victoria Village Apartments in San Bernardino County. It was further alleged that the amount of damage was over $400 and the petition charged the crime as a felony. The minor had previously been declared a ward of the court following his admission to a violation of 242 (misdemeanor battery) as alleged in a petition filed on March 21, 2007.
The judgment is affirmed.

A jury found defendant guilty of the misdemeanors of driving under the influence of alcohol (Veh. Code, 23152, subd. (a)) and driving with a blood alcohol level at or exceeding 0.08 percent. (Veh. Code, 23152, subd. (b).) He was sentenced to local time, with time served. 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 a potential arguable issue and requesting this court to undertake a review of the entire record. After concluding our independent review of the record, Court affirm the judgment.

Appellant Melissa S. (mother) is the mother of Elijah A. (minor), born in August 2003. Mother appeals from the juvenile courts order terminating her parental rights at a hearing held pursuant to section 366.26 of the Welfare and Institutions Code. Mother contends that the juvenile court abused its discretion in denying her request that it continue the hearing so that she could gather documentation in support of a planned section 388 petition. Court find the court acted well within its discretion in denying the request and, therefore, affirm the judgment below.

Defendant Vidal Danny Gonzalez appeals from the judgment entered following a jury trial in which he was convicted of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a); count 1), possession of methamphetamine for sale (Health & Saf. Code, 11378; count 2), and possession of a firearm (Pen. Code, 12021, subd. (a)(1); count 3).[1] It was further found that all the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), and that defendant was personally armed with a firearm ( 12022, subd. (c)) in the commission of the methamphetamine offenses. The trial court found that defendant had a prior serious conviction, which also qualified as a strike, and a prison prior ( 667, subd. (a)(1), 667, subds. (c)-(j), 1170.12, subds. (a)-(e), 667.5, subd. (b)). Defendant was sentenced to 18 years in prison, consisting of six years (the midterm doubled) for the transportation of methamphetamine offense, five years for the prior serious conviction, four years for the arming enhancement, and three years for the gang enhancement. Defendant contends (1) a jurors inadvertent receipt of extraneous information resulted in prejudicial juror misconduct, (2) insufficient evidence supports his convictions for transportation and possession for sale of methamphetamine because there is no evidence he knew methamphetamine was in the pickup truck involved in the offenses, and (3) the trial court erred by instructing the jury with CALJIC No. 2.11.5 regarding unjoined perpetrators. Court affirm the judgment.

A jury found appellant Joel Lamar Wyrick guilty of the lesser included offense of Health and Safety Code section 11350, subdivision (a) (possession of cocaine base). The trial court found true allegations that appellant had suffered a prior serious and violent felony conviction (Pen. Code, 187, subd. (a), 664, ) and prior prison terms (Pen. Code, 667.5, subd. (b)). The court denied probation and sentenced appellant to the mid-term doubled of four years plus two years for the prior prison term enhancements for a total of six years. On appeal, appellant contends: (1) there is insufficient evidence to show the police seized any substance from him or that the substance seized from him was the same substance that tested positive for cocaine base, and (2) the abstract of judgment should be corrected to reflect the crime for which he was convicted. Court order the abstract of judgment be amended, but in all other respects will affirm the judgment.