CA Unpub Decisions

This appeal arises from a contested probation revocation which resulted in the trial court revoking defendant's probation and sentencing him to prison in accordance with a plea agreement reached in August 2002. The judgment is affirmed.

On the night of August 29, 2007, San Diego Police Department gang detectives saw Anthony M. and J.S., a gang member, near a liquor store. J.S. stayed just inside the door while Anthony walked in and out of the store several times. They left the area together, crossing against a red light. Anthony started to enter a taco shop, but ran away when patrol cars arrived. During the ensuing chase, he threw a loaded revolver toward a freeway embankment and ignored the officers' commands to stop. When the officers apprehended him, they found a beanie with cut out eye holes in his pocket. Anthony had a gang tattoo. The terms of his probation prohibited him from possessing a firearm. The judgment is modified to reflect the dismissal of the section 12031, subdivision (a)(2)(C) allegation attached to count 3. As so modified, the judgment is affirmed.

Defendant and appellant T. J. (minor) appeals after he was adjudicated a ward of the juvenile court, and placed on probation. Minor argues that the court erred in admitting certain statements and that the evidence was insufficient to support the findings of the court. Court reverse.

Defendant Frank Trinidad Munoz, Jr., appeals from a jury conviction for one count of assault (Pen. Code, 240) and one count of delaying or obstructing a peace officer (Pen. Code, 148, subd. (a)(1)). He contends the trial court erred by placing him on probation for a period of five years. The judgment is modified to reduce defendants probationary period from five years to three years. In all other respects, the judgment is affirmed.

Following a jury trial, Lee Wayne Simpson (appellant) was found guilty of the premeditated murder of Daryth Fairbank (Pen. Code, 187, subd. (a)),[1]and being a felon in possession of a firearm ( 12021, subd. (a)(1)). The jury found true the allegation that appellant personally and intentionally discharged a firearm during the commission of the murder ( 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found true the allegations that appellant had a prior strike conviction ( 667, subds. (c)-(j), 1170.12, subds. (a)-(e)); a prior serious felony conviction ( 667, subd. (a)); and served two prior prison terms ( 667.5, subd. (b)).
On appeal, appellant contends there was insufficient evidence to sustain his first degree murder conviction and that the trial court erred when it admitted into evidence a drawing seized from his apartment and when it excluded evidence of the victims alleged prior possession of firearms. Finally, he contends there was cumulative error. Court disagree and affirm.

Defendant Charlotte Kay Whelchel was convicted of theft from an elder by a caretaker and grand theft after she stole jewelry from an elderly woman she had been hired to care for. On appeal, she contends (1) insufficient evidence supported the conviction for theft from an elder by a caretaker because there was insufficient evidence defendant was a caretaker; (2) the trial court failed to instruct that being a caretaker was an element of the crime; (3) grand theft is a lesser included offense of theft from an elder; (4) the trial court erred by refusing to allow the defense to present evidence of a witnesss conduct underlying her prior misdemeanors for theft and burglary; (5) the prosecutor committed Griffin error[1]by indirectly commenting on defendants failure to testify; and (6) the cumulative effect of the errors was prejudicial. Court reverse the grand theft conviction, vacate the sentence on the remaining conviction, remand for resentencing, and affirm in all other respects.

In this marital dissolution action, appellant, Johnnie T. Freitas (Husband), challenges the trial courts order awarding $75,000 in sanctions to respondent, Duane Diane Freitas (Wife), pursuant to Family Code section 271 and/or as discovery sanctions. The trial court concluded that Husband had failed to timely comply with numerous court orders and had the ability to pay these sanctions. Husband argues that the trial court abused its discretion because Wife failed to first move to compel further responses to the allegedly inadequate discovery responses. Husband further contends that the trial courts basis for awarding sanctions is not supported by the record. As discussed below, a motion to compel was not a prerequisite to the trial courts award of monetary sanctions. A litigant may be subject to sanctions for violating a court order. The trial court ordered Husband to respond to Wifes discovery request and Husband did not timely comply. Further, the trial courts award is supported by substantial evidence. Accordingly, the order will be affirmed.

Tommy Lee Puente (appellant) entered a plea of nolo contendere to one count of making a criminal threat (Pen. Code, 422).[1] As part of the plea bargain, his offense would be reduced to a misdemeanor if he successfully completed outpatient therapy within 90 days. If he failed to do so, he would receive his sentence as a felony. Judge Hamilton accepted the plea and set a sentencing/review hearing for 120 days.
This appeal followed. Appellant contends the trial court erred because he was not sentenced by the same judge who heard his plea agreement pursuant to People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle). Court affirm the judgment.

Defendant Virgil Bud Lewis pled no contest to child abuse for pushing his infant daughter to the floor. On appeal, he contends that the trial court erred by denying his motion to withdraw his plea. We conclude that the trial court did not abuse its discretion. Accordingly, Court affirm.

On May 14, 2007 appellant Macedonia Zambrano, pursuant to a plea agreement, pled no contest to felony vandalism (Pen. Code, 594, subd. (a)). On June 18, the court suspended imposition of judgment, placed appellant on three years probation, ordered that she pay restitution and scheduled a hearing for July 9 to determine the amount of restitution. Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing. Court affirm.

A juvenile wardship petition alleged (Welf. & Inst. Code, 602) that appellant Luis G., a minor, committed one felony count of vandalism (Pen. Code, 594, subd. (b)(1), count 1)[1]with a gang enhancement ( 186.22, subd. (d)) and participated in a criminal street gang ( 186.22, subd. (a), count 2). The court dismissed, with prejudice, both the enhancement and count 2. The court found true count 1 as alleged. The court adjudged appellant a ward of the court and placed him on probation subject to conditions. In addition, the court ordered that appellant pay victim restitution in the amount of $725. On appeal, appellant contends the court abused its discretion in ordering direct victim restitution in an amount not supported by the evidence. Court will affirm.

A jury convicted appellant Martin Carrion of unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a); count 1), possession of a firearm by a person previously convicted of a felony (Pen. Code, 12021, subd. (a)(1); count 3) and driving without a valid license (Veh. Code, 12500, subd. (a); count 5). In a separate proceeding, appellant admitted allegations that he had suffered a strike[1]and that he had served three separate prison terms for prior felony convictions (Pen. Code, 667.5. subd. (b)). The court imposed a prison term of seven years, consisting of the two-year midterm on count 1, doubled pursuant to the three strikes law (Pen. Code, 667, subd. (e)(1); 1170.12, subd. (c)(1)), plus one year for each of the three prior prison term enhancements. On count 3, the court imposed a concurrent term of four years, consisting of the two-year midterm, doubled, and the court imposed no time on count 5. Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing. Court affirm.

Appellant Jorge Benitez Brito contends that (1) the trial court abused its discretion in denying his motion to withdraw his no contest pleas and (2) he received ineffective assistance of counsel because he was not advised there was a high probability he would be subject to mandatory deportation from the United States as a result of his convictions and would thereby lose his right to participate in reunification services ordered by a dependency court in reference to his daughter. Court disagree and affirm the judgments of the trial court.

In 2004, defendant Virgil Bud Lewis was convicted of spousal abuse and placed on three years probation. In 2007, he pled no contest to a charge of child abuse, but later attempted to withdraw his plea. The trial court found defendant in violation of probation. On appeal, he contends that the trial court should not have found him in violation of probation because he should have been allowed to withdraw his plea.
As defendant himself concedes, his entire argument in this case hinges on the success of his argument in his related case, F053683, in which he maintained that he should have been allowed to withdraw his plea. Because we found in that case that the trial court did not abuse its discretion in denying defendants motion to withdraw his plea, we subsequently conclude in this case that the trial courts finding that defendant violated probation was proper.