CA Unpub Decisions

A jury found defendant Manuel Feliciano Ontiveros guilty of robbery (Pen. Code,[1] 211, count 1), dissuading a victim from reporting a crime by force or by an express or implied threat of force or violence ( 136.1, subd. (c)(1), count 2),[2]and attempting to elude a peace officer. (Veh. Code, 2800.2, count 3.) The jury found the allegation that defendant personally used a firearm in the commission of the robbery to be untrue. ( 12022.53, subd. (b).) The trial court sentenced defendant to a total term of three years in state prison, consisting of the midterm of three years on count 1, a concurrent three years on count 2, and a concurrent two years on count 3. On appeal, defendant argues: 1) there was insufficient evidence to sustain his conviction in count 2; and 2) his sentence in count 2 should be stayed under section 654. Court affirm.

A juvenile court found true the allegation that appellant D.A. (minor) committed the offense of receiving stolen property (a car). (Pen. Code, 496, subd. (a).) On appeal, minor contends: 1) there was insufficient evidence that he knew the vehicle he was driving was stolen; 2) the juvenile court failed to establish jurisdiction over him because it did not expressly declare him to be a person described by Welfare and Institutions Code section 602; and 3) the court failed to exercise its discretion in determining whether its true finding was for a felony or misdemeanor. Court affirm.

On September 24, 1997, alleged incidents of child molestation, occurring sometime between November 1994 and June 1995, were reported to the police. The People filed a complaint against defendant on February 17, 2000, and a warrant was issued for his arrest on February 24, 2000. Defendant was involuntarily arrested by way of extradition from New Mexico on March 2, 2006. Defendant filed a motion to dismiss the complaint based on a violation of his state and federal constitutional rights to a speedy trial. After the preliminary hearing, the court granted defendants motion, finding that the delay substantially prejudiced defendant and that the People failed to provide sufficient justification for that delay.[1] On appeal, the People contend the trial court erred in failing to apply the proper legal test for dismissing an information based on preaccusation delay. The People maintain the court must also find the delay was intentional. The People further argue that the California Truth in Evidence provision of the states Constitution forbids the dismissal of the instant case. (Cal. Const., art. I, 28, subd. (d).) Finally, the People contend that, regardless of the proper test for dismissal, the dismissal here was not supported by substantial evidence. The judgment is affirmed.

Pursuant to a Welfare and Institutions Code section 777 petition, it was alleged that defendant and appellant Jimmie W. (minor) violated his probation by failing to notify the probation officer of his change of address. Minor admitted the allegation, and following a contested dispositional hearing, the juvenile court declared him a ward of the court and ordered him to be placed in the custody of the probation department while awaiting placement in a suitable locked and secured facility. Minor filed a notice of appeal. Court affirm.

Plaintiff N. L. Neilson, a self-representing litigant, challenged defendant City of California Citys (California City) flat-rate parcel tax on the grounds the tax violated the equal protection clause of the United States Constitution. The superior court sustained a demurrer to plaintiffs complaint without leave to amend. Court conclude that the equal protection clause, as discussed by the United States Supreme Court in Allegheny Pittsburgh Coal v. Webster County (1989) 488 U.S. 336 (Allegheny) and elsewhere, does not require a parcel tax to be in proportion to the value of the parcel. Consequently, plaintiff failed to state a cause of action and the superior court correctly sustained the demurrer.

On December 8, 2006, James Enriquez was pumping gas at a gas station in Bakersfield when appellant, Cedric Paul Roy, attacked him from behind and knocked him to the ground. As the two men struggled, Roy stated, Give me your wallet. Roy stabbed Enriquez three times in the face, took his wallet, and fled. Officers who arrived on the scene searched the surrounding area and located Roy, who fit the description of the robber provided by Enriquez. Roy fled but was taken into custody after a struggle. Roy had blood on his pants. A search of his person uncovered .8 grams of cocaine base, $304 in paper currency, and an empty wallet.
The judgment is modified to award Roy 248 days of presentence custody credit as calculated above. The trial court is directed to prepare an amended abstract of judgment that incorporates this modification and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

Appellant Lynda H. appeals the juvenile courts order removing her children from her custody and denying reunification services. Lynda contends substantial evidence does not support the jurisdictional finding or the denial of reunification services. She also argues that the juvenile court abused its discretion in concluding reunification was not in the best interests of the children. Court affirm the order.

Defendant Phillip Castillo Rios was convicted of felony false imprisonment and misdemeanor battery and vandalism, arising out of a domestic violence incident. He was acquitted of the additional felony charge of attempted robbery. On appeal, he contends the trial court lacked jurisdiction to order him to pay victim restitution (Pen. Code,[1] 1202.4, subd. (f)), and improperly imposed the upper term. Court affirm.

Appellant, Sergio Espinoza, pled no contest to assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) and admitted a great bodily injury enhancement (Pen. Code, 12202.7, subd. (a)) and a gang enhancement (Pen. Code, 186.22, subd. (a)) On October 26, 2007, the court sentenced Espinoza to an aggregate 15-year term, the mitigated term of 2 years for the assault offense, a 3-year great bodily injury enhancement, and a 10-year gang enhancement. On appeal, Espinoza contends his abstract of judgment contains an error. Court agree and will direct the trial court to issue a corrected abstract of judgment. In all other respects Court affirm.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing as to his two sons and daughter. He claims his due process right to notice was violated. Court concur and will grant relief.

Chloe Hilliard appeals from an order prohibiting harassment under Code of Civil Procedure section 527.6. She contends the order is not supported by sufficient evidence. Court affirm the order.

A jury convicted defendant Ralph Brown of attempted murder and assault with a deadly weapon or by any means likely to produce great bodily injury. (Pen. Code, 187/664; 245, subd. (a)(1).) The trial court sentenced him to 23 years to life in prison. On appeal, he claims instructional error and ineffective assistance of counsel. He pursues the latter claim further in a habeas corpus petition, presenting facts outside the record on appeal. Court affirm the convictions and deny the habeas petition without issuing an order to show cause.

Willie B. Coleman III was convicted of felony robbery and assault under Penal Code sections 211 and 245, subdivision (a)(1),[1]respectively, and his sentence for this conviction was enhanced pursuant to allegation under section 12022.7, subdivision (a), which the jury found to be true. In his appeal, defendant claims reversible error on the following grounds: (1) there was insufficient evidence identifying him as one the perpetrators of the robbery and assault; (2) there was insufficient evidence to find the enhancement allegation true as to him; (3) juror misconduct required a new trial; and (4) the trial court had no authority to order a restitution fine in favor of the victims employer, the Department of the Air Force (Air Force). As discussed below, Court direct the challenged restitution fine to be vacated, affirm the appeal in all other respects.

This appeal arises from an altercation between defendant Jose Rodriguez-Montero and Raul Ake that landed Ake in the hospital with a concussion, multiple lacerations, and his right eye swollen shut. A jury convicted defendant of assault with a deadly weapon and by means of force likely to produce great bodily injury, and he was sentenced to 13 years, four months in state prison. On appeal, defendant asserts (1) that he was deprived of effective assistance of counsel, (2) that the court committed numerous instructional errors, and (3) that the prejudicial effect of the cumulative errors deprived him of due process. Court reject defendants claims and affirm the judgment of conviction.