CA Unpub Decisions

Defendant Susan Lee Couture seeks to appeal from a final judgment following a plea of no contest to two counts of offering false or forged instruments for filing, in violation of Penal Code section 115, subdivision (a).[1] We shall conclude defendants failure to obtain a certificate of probable cause ( 1237.5; Cal. Rules of Court, rule 8.304(b)) prevents her challenge that the documents she falsified were not instruments within the meaning of section 115, and this forfeiture is not avoided by her claim of ineffective assistance of counsel. Defendant also raises sentencing contentions, which we shall address and reject. Court affirm the judgment.

oral copulation of an unconscious person. The court denied defendants motion to withdraw his plea[1]and sentenced him to the stipulated lower term of three years, imposed various fines and fees, awarded 132 days of credit (88 actual and 44 conduct), and ordered sex offender registration pursuant to Penal Code section 290.
Having failed to obtain a certificate of probable cause, defendant appeals. The judgment is affirmed.

Defendant Bruce Brown pled no contest to unlawful possession of a controlled substance. On appeal, he challenges the trial courts denial of his motion to suppress, contending the trial court erred when it admitted evidence discovered by police officers after they seized him without a reasonable suspicion of criminal activity. Court disagree and affirm.

Defendant was charged by criminal complaint with bringing drugs into jail in violation of Penal Code section 4573 (count I), transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a) (count II), possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) (count III), possession of marijuana in violation of Health and Safety Code section 11357, subdivision (b) (count IV), and possession of drug paraphernalia in violation of Health and Safety Code section 11364 (count V). As to count II, the complaint specially alleged that defendant had suffered three prior convictions pursuant to Health and Safety Code section 11370.2, subdivision (c).
The judgment is affirmed.

A modification decision.

Steven Whitaker entered a negotiated guilty plea to forcible rape with a foreign object (Pen. Code, 289, subd. (a)(1))[1]and admitted he was ineligible for probation ( 1203.065, subd. (a)) and had a strike ( 667 subds. (b)-(i), 1170.12, 668) and two serious felony prior convictions ( 667, subd. (a)(1), 668, 1192.7, subd. (c)). The court sentenced him to 16 years in prison: the three-year lower term, doubled, and five years for each serious felony prior. Whitaker appeals. Court affirm.

Defendant Larry Lee Miller appeals from judgment entered following jury convictions for first degreemurder (Pen. Code, 187, subd. (a))[1]and attempted premeditated murder ( 187, subd. (a), 664). Defendant did not pull the trigger on the gun that killed one of the victims and injured a second victim who survived. The prosecutor argued at trial that defendant committed murder and attempted murder based on the vicarious liability theories of aiding and abetting, and the natural and probable consequences doctrine. Court reject defendants contentions and affirm the judgment.

In an information filed in Riverside County Superior Court, defendant was charged with three felony counts: count 1, murder of Jaime Bermudez (Pen. Code, 187, subd. (a)),[1]count 2, attempted murder of Lorenzo Luna ( 187, subd. (a), 664), and count 3, assault with a semiautomatic firearm on Jaime Moreno ( 245, subd. (b)). Firearm enhancements attended all charges: discharge causing death ( 12022.53, subd. (d)) attended the murder charge, discharge of a firearm ( 12022.53, subd. (c)) attended the attempted murder charge, and use of a firearm ( 12022.5, subd. (a)) attended the charge of assault with a firearm. A jury found defendant guilty as charged in counts 1, 2, and 3, and found that the murder and attempted murder were willful, premeditated, and deliberate. The jury also found each of the firearm enhancement allegations true. Defendant was sentenced to an aggregate term of 70 years to life[2]and appeals.Defendant contends that insufficient evidence supports the jurys findings that the murder and attempted murder were willful, deliberate, and premeditated. He further contends his trial counsel rendered ineffective assistance in failing to object to portions of the prosecutions closing argument. Court reject these contentions and affirm the judgment.

Haleh R. Jenkins (Jenkins), attorney of record for Western Service Contract Corporation (Western), issuer of an extended service warranty pursuant to a retail sales contract for the purchase of a wave runner from dealership Montclair Yamaha (Montclair), appeals from an order imposing monetary sanctions of $8,730, for filing a motion for summary judgment found to be meritless. Court affirm.

This case is before us on remand from the United States Supreme Court for further consideration in light of that courts decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). The parties have provided supplemental briefing addressing Cunningham and the California Supreme Courts recent interpretation of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). After further consideration in light of both Cunningham and Black II, we affirm the judgment and sentence. Except for our discussion of defendants sentence, the opinion we now file is substantially the same as our original opinion filed on September 27, 2006.

A jury found defendant Isaac Castaneda guilty of one count of unlawfully taking or driving a vehicle (Veh. Code, 10851, subd. (a); count 1) and one count of recklessly evading a peace officer (Veh. Code, 2800.2, subd. (a); count 2). The jury also found true criminal street gang and arming enhancements associated with each count. (Pen. Code,[1] 186.22, subd. (b)(1); 12022, subd. (a)(1)). Defendant received a total prison term of 11 years: the upper term of three years for count 2, plus four years for the gang enhancement and one year for the arming enhancement, a consecutive term of eight months for count 1, plus one year for the gang enhancement, and four months for the arming enhancement, and a stipulated, consecutive term of one year for defendants guilty plea to assault with a deadly weapon in a separate case. Court affirm.

Defendant Michael Gaddy, a prison inmate, was convicted of assault with malice aforethought and by means of force likely to produce great bodily injury while undergoing a life sentence (Pen. Code, 4500; count 3)[1]and battery on a non-confined person ( 4501.5; count 4). Defendant was acquitted of attempted murder of a peace officer ( 217.1, subd. (b); count 1) and attempted murder ( 664,187, subd. (a); count 2). The jury also found true enhancement allegations that defendant had a prior serious felony conviction ( 667, subd. (a)(1)) and three prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced to prison for a total of 32 years to life. On appeal, defendant contends the trial court erred in admitting lay opinion evidence. Court affirm.

This case arises out of the shooting of two police officers during a traffic stop. Defendant Jesse Barbosa was convicted of two counts of conspiracy to commit murder, two counts of attempted murder, two counts of aggravated mayhem, and one count of discharging a firearm from a vehicle at a person.[1] On appeal, defendant contends, (1) the evidence was insufficient to support the special gang allegations attached to each count; (2) the evidence was insufficient to support his convictions for conspiracy to commit murder because there was no proof of an overt act apart from the attempted commission of the target offense; (3) the conspiracy instructions erroneously failed to require any overt act apart from the attempted commission of the target offense; (4) the abstract of judgment must be corrected to reflect the terms actually imposed in counts 1 and 2; and (5) the trial courts imposition of consecutive terms violated Cunningham v. California (2007) 549 U.S. 270 [127 S. Ct. 856, 871] (Cunningham). Except to correct the abstract, Court affirm.

Appellant pled no contest to one felony count of possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)) and one misdemeanor count of being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)). The offenses occurred on November 10, 2003. Imposition of sentence was suspended, and appellant was placed on formal probation for three years, subject to conditions, including payment of a restitution fine of $200 (Pen. Code, 1202.4, subd. (b), (m)). Appellant violated his probation twice; each time the court revoked, then reinstated, probation on the same terms and conditions. Appellant admitted a third violation of probation. His probation was reinstated and extended, the previous probation terms were vacated, and new terms and conditions were imposed, including an order to pay a restitution fine of $500 and an order to pay a probation revocation restitution fine of $500 (Pen. Code, 1202.44), which was suspended pending successful completion of probation.
Appellant challenges the probation revocation restitution fine, asserting the statute authorizing that fine was not enacted until after his offense was committed and therefore it cannot be imposed as a punishment for his offense. He also challenges the restitution fine, contending that, having imposed a fine of $200 when probation was originally granted, the court could not impose a second restitution fine at the time probation was revoked and reinstated. He seeks to have the probation revocation restitution fine stricken and the restitution fine reduced to $200.
Order is affirmed.

Defendant Sean Alan Hillman was convicted of vehicle theft and possession of methamphetamine and drug paraphernalia; he received an aggregate sentence of five years. On appeal, he challenges the trial courts sentencing decisions. This challenge lacks merit. He also mounts a wide-ranging attack on the new Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM), which the trial court used to instruct the jury. Since his trial counsel did not object to the jury instructions, his claims are waived unless the alleged errors affected his substantial rights. He has not shown a reasonable probability of a better outcome if the jury had been instructed differently, so we conclude that his substantial rights were not affected. For the same reason, defendant has not shown that his trial counsel rendered unconstitutionally ineffective assistance by not objecting. The bottom line: The judgment is affirmed.