CA Unpub Decisions

A jury convicted Ronald David Ward of transporting more than 28.5 grams of marijuana (Health & Saf. Code, 11360, subd. (a) (count 1)); possession of marijuana for sale (Health & Saf. Code, 11359 (count 2)); possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1) (count 3)); and having a concealed firearm in a vehicle (Pen. Code, 12025, subd. (a)(1) (count 4)). It also made a true finding on firearm allegations as to counts 1 and 2. The trial court sentenced Ward to three years in prison.
When Ward was arrested following a traffic stop, the police found marijuana in Ward's car and in his pocket. Ward's single contention on appeal is that the trial court erred by not giving a unanimity instruction to the jury, instructing that it must agree as to which stash of marijuana it was relying on to convict Ward of counts 1 and 2. As we will explain, we conclude that the trial court should have given a unanimity instruction with respect to count 2, but the error was harmless. Accordingly, Court affirm the judgment.

Barry Butler entered a negotiated guilty plea to first degree residential burglary (Pen. Code, 459/460)[1]and admitted that another person, other than an accomplice, was present in the residence during the commission of the burglary within the meaning of section 667.5, subdivision (c)(21). Butler also admitted he had suffered a prior strike conviction ( 667, subds. (b)-(i)) and a prior serious felony conviction ( 667, subd. (a)). The plea bargain provided for a stipulated nine-year sentence, with Butler serving 85 percent of the term before he would be eligible for parole, and included a concurrent two-year prison sentence for a theft charge to which Butler pleaded guilty in superior court case No. SCS207168. Before sentencing, Butler obtained new counsel and sought to withdraw his guilty plea. The trial court denied Butler's motion to withdraw his guilty plea and sentenced him to nine years in prison. Butler requested and received a certificate of probable cause from the trial court. ( 1237.5.)

Jose Luis Diparra entered a negotiated guilty plea to one count of failing to register as a sex offender (Pen. Code, 290, subd. (g)(2)) and admitted he had one prior serious/violent felony or strike conviction (Pen. Code, 667, subds. (b)-(i)). As part of the plea bargain, the prosecutor agreed to dismiss another strike conviction allegation and an allegation that he had served a prior prison term (Pen. Code, 667.5, subd. (b)), and Diparra acknowledged that as a result of the plea his probation or parole in other cases could be revoked and he could receive consecutive sentences. Diparra filed a sentencing memorandum on his own behalf in which he requested leniency based on his post traumatic stress syndrome, which resulted from his military service in the Vietnam War and the staleness of his prior sex crime, which occurred almost 25 years ago. Trial counsel also filed a motion to dismiss the prior strike conviction in the interests of justice. The court sentenced Diparra to 16 months in prison, to run concurrently with a 16-month term for a probation violation.

Blanca L. appeals the court's orders at the 12-month review hearing. (Welf. & Inst. Code, 366.21.) She contends the court erred when it did not return her son, Alejandro S., Jr., (Alejandro) to her physical custody and the court abused its discretion when it denied her request for a continuance of the 12-month review hearing. Court affirm.

Michael Nelson entered a negotiated guilty plea to petty theft with a prior (Pen. Code, 484/666) and admitted he had served four prior prison terms within the meaning of Penal Code section 667.5, subd. (b). Under the terms of the plea bargain, the prosecution agreed to dismiss one count of selling cocaine base (Health & Saf. Code, 11352, subd. (a)) and one count of exhibiting a deadly weapon, to wit, a knife (Pen. Code, 417, subd. (a)(1)) and a fifth prior prison term allegation. The plea bargain called for a stipulated prison term of six years. The trial court sentenced Nelson to six years in prisonthe middle term of two years on the petty theft with a prior plus four one-year terms for each of the prior prison terms. The judgment is affirmed.

Sonia U. appeals the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.

In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) Court therefore deny her requests to review the record for error and to address her Anders issues. (Anders v. California (1967) 386 U.S. 738.) Sonia U.'s counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied. The appeal is dismissed.

Betty Oshiro transferred more than $600,000 to defendant All Nations Mission Church (ANMC). Defendant Peter Nam is the founder and pastor of ANMC. Oshiro claimed that she transferred the money in exchange for certain representations and promises by defendants, including a promise to care for her for the rest of her life. She lived for awhile in a mobile home on mountain property owned by ANMC. Eventually, the relationship between Oshiro and defendants deteriorated and defendants obtained a restraining order against Oshiro based upon threats made by her. Oshiro sued ANMC, Nam, and other affiliated individuals, alleging causes of action for fraud, breach of contract, rescission, elder neglect and abuse, and conversion. The case was tried by the court, which found for the defendants on all counts.
On appeal, Oshiro contends that the court erred by: (1) finding that the money and property that Oshiro transferred to defendants was a gift; (2) finding that there was not a fiduciary relationship between Nam and Oshiro; (3) failing to apply the correct legal standard in determining whether financial elder abuse existed; and (4) failing to consider certain expert testimony concerning Oshiros mental capacity. Court affirm.

Defendant Christopher Daniel Machuca appeals seeking reversal of two attempted murder convictions. He contends there is insufficient evidence to establish the specific intent to kill. He also seeks modification of the courts minutes from his sentencing hearing and the abstract of judgment to accurately reflect the sentence the court imposed. The judgment is affirmed.

In this appeal, Cesar Noel Hernandez argues (1) there is insufficient evidence to support his conviction for first degree murder and (2) that his indeterminate life sentence violates state and federal constitutional prohibitions against cruel and unusual punishment. Court disagree with both of defendants arguments and will affirm.

Defendant pled guilty to vehicular manslaughter without gross negligence while intoxicated (count 1former Pen. Code, 192, subd. (c)(3)), driving under the influence of a drug while causing an injury (count 2Veh. Code, 23153, subd. (a)), and child endangerment (count 3Pen. Code, 273a, subd. (a)). Additionally, defendant admitted she caused injury to an additional victim in her commission of the offense in count 1 (Veh. Code, 23558) and that she personally inflicted great bodily injury upon two victims in her commission of the offense in count 2 (Pen. Code, 12022.7, subd. (a)). On appeal, defendant contends the court erred in permitting her conviction as to both counts 1 and 2, as count 2 was a lesser included offense of count 1. The People concede the issue. Court agree and, therefore, reverse defendants conviction under count 2 and strike the corresponding enhancements. In all other respects, the judgment is affirmed.

A jury convicted defendant of two counts of child molestation (counts 1 & 2Pen. Code, 288, subd. (a)),[1]three counts of forcible rape (counts 3-5 261, subd. (a)(2)), forcible child molestation (count 6 288, subd. (b)), unlawful sexual intercourse (count 7 261.5, subd. (c)), and battery (count 8 242). In addition, the jury found that defendant committed the offenses charged in counts 1 through 6 against more than one victim within the meaning of section 667.61, subdivision (e)(5). The court sentenced defendant to an aggregate term of two years, plus a consecutive term of 75 years to life consisting of 15 years to life on count 1, 15 years to life concurrent on count 2, 15 years to life consecutive on counts 3 through 6 each, two years consecutive on count 7, and 180 days in county jail with credit for time served on count 8. On appeal, defendant argues that the court mistakenly believed it was required to impose consecutive sentences on counts 3 through 6 and the matter must, therefore, be remanded for resentencing in exercise of the courts discretion to impose either consecutive or concurrent sentences. We find that the court properly imposed the mandated consecutive sentences on counts 3 through 6. Defendant further contends the court erred in imposing a concurrent 15-year-to-life term on count 2. The People concede the issue. Court agree and, therefore, remand the matter for resentencing on count 2.

After defendant admitted a third probation violation, the court lifted the stay on a two-year prison sentence and committed him to prison for the two-year term. Defendant appeals, contending the court violated his due process rights by accepting his admission to the probation violation without first giving him certain constitutional rights admonishments. Court conclude that the lower court committed error in failing to advise defendant of his right to a contested hearing, but find that error harmless and affirm.

Zarell Lee Williams appeals from a judgment and sentence for multiple convictions of grand theft, forgery, and fraud involving false instruments or false deeds of trust. He contends, among other things, that there was insufficient evidence to support the jurys findings on a grand theft count and on certain special allegations relating to the statute of limitations. He also contests his sentencing and certain restitution awards. For the following reasons, Court remand for resentencing.

Appellant John Christopher Hanford[1]entered into a negotiated plea agreement resolving three cases. In Tulare County Superior Court case number 173808 (the first case), appellant pled no contest to violating Penal Code section 4573.6 by possessing methamphetamine inside a jail facility.[2] He admitted a section 667.5, subdivision (b) prison prior. In Tulare County Superior Court case number 181628 (the second case), appellant pled no contest to violating section 273.5, subdivision (a) by committing a corporal injury upon M.Z., who is the mother of his child (count 1). He admitted using a utility knife during the commission of count 1 in violation of sections 1192.7 and 667. He pled no contest to violating section 245, subdivision (a)(1) by assaulting M.Z. with a deadly weapon (count 2). He admitted personally using a deadly weapon during the commission of count 2. As modified, the judgment is affirmed.