CA Unpub Decisions

Appellant Isaul Esquivel Franco contends that his conviction for first degree murder must be reversed because the trial court failed to instruct sua sponte on imperfect self-defense and his counsel failed to request an instruction on provocation as a basis for reducing first degree murder to second degree murder. In addition, with respect to the sentence imposed, he contends (1) the separate term imposed for discharge of a weapon that proximately caused great bodily injury or death violated the multiple conviction rule and principles of double jeopardy; and (2) the separate term imposed for committing an offense for the benefit of, at the direction of and in association with a criminal street gang did not comply with the governing statute. Respondent agrees that as appellant was sentenced to a term of 25 years to life for first degree murder, he was not subject to a separate term for the gang allegation under the interpretation of the governing statute set forth in People v. Lopez (2005) 34 Cal.4th 1002, 1004.
Court conclude that no instruction was required on imperfect self-defense or provocation and that the separate term for the weapon enhancement was properly imposed. Court agree with the parties that the separate term for the gang enhancement should not have been imposed.

Eddie Bridges appeals from the judgment entered following a jury trial in which he was convicted of pandering by procuring a minor under the age of 16 (Pen. Code, 266i, subd. (b)(2)), pimping a minor under the age of 16 (id., 266h, subd. (b)(2)), pandering by procuring (id., 266i, subd. (a)(1)), and pimping (id., 266h, subd. (a)). He was sentenced to eight years in prison and contends that the evidence was insufficient to support his conviction, evidence of uncharged acts of misconduct should have been excluded, his request to relieve counsel was improperly denied, and his rights were violated when he was absent from the courtroom during a critical stage of the trial. Court affirm.

Monica Diaz appeals from the judgment entered upon resentencing following a partial reversal by this court in People v. Diaz (Dec. 22, 2005, B175089) [nonpub. opn.] (Diaz I), which ultimately resulted in her conviction of four counts of first degree murder. Defendant was sentenced to four consecutive terms of 25 years to life and contends that the trial court abused its discretion in failing to order a new probation report, denying her request for a continuance, and imposing consecutive terms; her sentence constitutes cruel and unusual punishment; she is entitled to additional custody credits; and on remand the matter should be assigned to a different trial judge. Court conclude that a continuance should have been granted and remand for resentencing without any restriction as to who may preside at that hearing. In all other respects, Court affirm.

Juan Taliphora Mack appeals from the judgment entered upon his negotiated plea of no contest to the sale, transportation or offer to sell cocaine (Health & Saf. Code, 11352, subd. (a)). He was sentenced to three years in prison. He contends that the trial court erred by ordering him to pay $95 in attorney fees pursuant to Penal Code section 987.8[1]without giving him notice and holding a hearing to determine his ability to pay. On this record, Court strike the order imposing attorney fees.

Juan Jose Mermijo appeals from the judgment entered following an order revoking probation. Previously he pled no contest to shooting at an occupied motor vehicle (Pen. Code, 246) and admitted personal use of a firearm within the meaning of Penal Code section 12022.5, subdivision (a). Pursuant to his negotiated plea, he was sentenced to prison for 17 years, execution of the sentence was suspended and he was placed on formal probation under certain terms and conditions, including that he serve 642 days in jail, with credit for 642 days. He contends the trial court erred when it imposed restitution and parole revocation fines of $3,400 and when it imposed a second security fee under Penal Code section 1465.8. For reasons stated in the opinion, we affirm the judgment and strike the restitution and parole revocation fines of $3,400 and the second security fee.
The $3,400 restitution and parole revocation fines and the second $20 court security assessment fee are stricken and in all other respects the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

A father appeals from a juvenile court order terminating parental rights, and the mother joins fathers arguments in a separate appeal. Because the juvenile court did not give the parents notice of the requirement that they file an extraordinary writ petition from an earlier order terminating reunification services and setting a Welfare and Institutions Code section 366.26[1] hearing, they may seek review of issues arising from the earlier order in this appeal from the order terminating parental rights. Father claims that the trial court erroneously found that the Department of Children and Family Services (DCFS) provided reasonable reunification services and claims that the case plan itself was inadequate. We conclude, however, that Fathers failure to object in the juvenile court to the provision of reasonable services or to the adequacy of the case plan forfeits his objection on appeal. Court affirm the order terminating parental rights.

Defendant Robert Aguilar Garcia was found guilty in consolidated case No. SF089304A of failure to appear while released on his own recognizance (O.R.) for another crime (Pen. Code, 1320, subd. (b); undesignated references are to this code). Defendant was subsequently convicted in case No. SF093139A of second degree robbery ( 211), and the court found true the allegation that he committed a secondary offense while on O.R. release for a primary offense. ( 12022.1.) The court imposed an aggregate sentence of five years in case No. SF093139A, and a consecutive eight-month term in case No. SF089304A.
On appeal, defendant contends that: (1) the trial court erred in case No. SF093139A by failing to give certain jury instructions and instead giving others which were unnecessary and irrelevant, (2) the section 12022.1 enhancement in case No. SF093139A should be dismissed for lack of preliminary examination as a felony offense pursuant to section 859b, (3) the trial courts denial of defendants motion for judgment of acquittal ( 1118.1) in case No. SF089304A was error, and (4) the trial courts imposition of consecutive sentences violated defendants right to due process and a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution. (Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).) Court shall affirm the judgment.

M.V., the three-year-old son of Ysela V. (Mother), suffered devastating injuries under circumstances that suggested deliberate abuse and neglect. After the Solano CountyHealth and Social Services Department (Department) filed a petition under Welfare and Institutions Code[1] section 300, subdivisions (a), (b), (e), and (j) with respect to M.V. and his six siblings, a contested jurisdictional hearing was begun. Prior to Mothers submission of evidence, the parties engaged in an off-the-record discussion with the juvenile court and reached an agreed disposition. Under that agreement, the court was to sustain the allegations under section 300, subdivisions (a), (b), and (j), reject the allegations under subdivision (e), and grant reunification services to Mother. In reliance on that agreement, Mother waived any further contest of the jurisdictional allegations of the petition. Although the juvenile court made the agreed factual findings, it denied reunification services after a subsequent dispositional hearing. Mother contends the trial court abused its discretion in failing to abide by the terms of the agreement. While we do not agree that the agreement constrained the courts free exercise of discretion in selecting the appropriate disposition, the juvenile court was required, before departing from the terms of the agreement, to offer Mother the opportunity to withdraw from it and contest the jurisdictional allegations. Court therefore vacate the denial of reunification services and remand for further proceedings.

At a change of plea proceeding, after a full advisement of his rights, defendant Jose Luis Vargas-Flores, represented by counsel, pleaded no contest to one count of engaging in three or more acts of substantial sexual conduct with a child under age 14 (Pen. Code, 288.5, subd. (a)). Although the maximum term that could be imposed was 16 years in state prison, the court promised to impose the low term of 6 years if a review of the probation report warranted the lesser sentence. Otherwise, defendant would be permitted to withdraw his plea. The judgment is affirmed.

Appellant Vernon David Phy challenges the denial of presentence custody credit against his six-year prison term. Appellant contends the trial court erred by denying him credit for time served on a parole revocation term that was allegedly based on the same conduct underlying his conviction. Court affirm.

Leandrew C. Allen appeals the judgment following his conviction for robbery (Pen. Code, 211),[1] unlawful possession of a firearm ( 12021, subd. (e)), unlawful possession of ammunition ( 12316, subd. (b)(1)), and having a concealed firearm in a vehicle ( 12025, subd. (a)(1)). The jury found a true allegation that Allen personally used a firearm in the robbery. ( 12022.53, subd. (b).) Allen contends the trial court erred in admitting evidence of a prior uncharged offense, and violated his constitutional right of confrontation by admitting a hearsay statement by a nontestifying witness. He also claims imposition of an upper term sentence violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). Court affirm.

Oscar Acosta Trejo appeals the judgment entered after he was convicted of second degree murder. (Pen. Code, 187, subd. (a)/189.)[1] He was sentenced to prison for 15 years to life, plus a consecutive one-year term for personal use of a deadly and dangerous weapon. ( 12022, subd. (b)(1).) Trejo contends the trial court improperly excluded evidence of his cultural background as it related to his heat of passion defense. He also claims prosecutorial misconduct and instructional error. Court affirm.

In People v. French (2008) 43 Cal.4th 36, 52-55, our Supreme Court explained in some detail the problems with finding harmless error in a determinate sentencing case when an accused pleads guilty or no contest, receives the upper term, but the aggravating factors are found by a judge and not a jury. In French, our Supreme Court found that the failure to have a jury find the aggravating factors after the defendant pled no contest was not harmless beyond a reasonable doubt. (Id. at pp. 42, 52-55.) Faced with a materially different showing, Court conclude that the trial courts decision to impose the upper term based on two aggravating circumstances which were not found to exist by a jury was harmless beyond a reasonable doubt.

A jury convicted Benjamin Cruz, Jr. (appellant) of second degree murder (Pen. Code, 187, subd. (a))[1](count 1); attempted, willful, deliberate and premeditated murder ( 664/187, subd. (a)) (count 2); assault with a firearm ( 245, subd. (a)(2)) (count 3); and shooting at an occupied motor vehicle ( 246) (count 4). The jury found true the allegations in counts 1 and 2 that a principal intentionally discharged a firearm and caused great bodily injury and death pursuant to section 12022.53, subdivisions (d) and (e)(1). The jury found true that the offenses were committed for the benefit of a criminal street gang with respect to all counts. ( 186.22, subd. (b)(1)(A).) Appellant and his codefendant, Eugene Barron (Barron) were tried jointly with separate juries. The trial court declared a mistrial in Barrons case.
Appellant appeals on the grounds that: (1) there was insufficient evidence as a matter of law to support appellants convictions; (2) there was insufficient evidence to support the gang enhancement; (3) the gang experts testimony usurped the jurys fact-finding function and violated appellants rights to due process, a fair trial, and a trial by jury; (4) the gang experts testimony violated appellants right to confront and cross examine witnesses; (5) the trial courts limitation of defense counsels cross-examination of the coroner deprived appellant of his rights to due process, to confront and cross-examine his accuser, to a fair trial, and to present a defense; (6) cumulative error requires reversal; and (7) count 4 should be stayed pursuant to section 654. The judgment is modified.