CA Unpub Decisions

Michael Kaempf was convicted of the second degree murder of Michelle Anderson (Pen. Code,[1] 187) with firearm enhancements also found true ( 12022.53, subds. (b)-(d)). Kaempf argues on appeal that there is insufficient evidence to support the murder conviction; that his exculpatory statements made at the time of arrest should have been admitted through police testimony under exceptions to the hearsay rule; that the trial court abused its discretion under Evidence Code section 352 to permit a photograph of the victim and her daughter to be shown in court; that the trial court should not have instructed the jury with CALJIC No. 5.54; and that section 12022.53, subdivision (d) is unconstitutional. Court affirm the judgment.

A jury convicted defendant Kenneth Harvey Tincher of receiving stolen property, i.e., license plates (Pen. Code, 496, subd. (a); undesignated section references are to the Penal Code). In bifurcated proceedings, the trial court found two strike priors ( 667, subds. (b)-(i)) and three prior prison term allegations ( 667.5, subd. (b)) to be true.

Sentenced to state prison for an indeterminate term of 25 years to life and a consecutive determinate term of three years, defendant appeals, contending (1) the evidence supports two, not three, prior prison terms and (2) counsel rendered ineffective assistance in failing to object to certain testimony. The Attorney General concedes that the evidence supports two, not three, prior prison terms. Court agree and will reverse the trial courts finding on the third prior prison term allegation. Court conclude that defendant has failed to demonstrate ineffective assistance of counsel and otherwise affirm the judgment.

A jury convicted defendant Hoang Thanh Nguyen of second degree murder (Pen. Code, 187, subd. (a), 189) and found not true allegations that he was armed with a firearm ( 12022, subd. (a)(1)), personally used a firearm ( 12022.53, subd. (b)), personally discharged a firearm ( 12022.53, subd. (c)), and personally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)). Defendant was sentenced to state prison for 15 years to life. As best Court understand him, defendant contends (1) evidence obtained in a warrant search should have been suppressed,
(2) hearsay evidence was erroneously admitted at the preliminary hearing, (3) statements of a coparticipant were erroneously admitted at trial, (4) the trial court erred by modifying CALJIC No. 3.02, and (5) his trial was infected by judicial and prosecutorial misconduct. Court affirm the judgment.

A jury found defendant Ernie Juarez guilty of possession of heroin for sale and possession of cocaine base for sale. In bifurcated proceedings, the court found two prior drug convictions and one prior prison term allegation to be true.
The court sentenced defendant to state prison for an aggregate term of 11 years. The court stayed the prior prison term enhancement.
Defendant appeals. He contends: (1) the trial court committed prejudicial error in admitting evidence of defendants prior drug dealing under Evidence Code sections 1101, subdivision (b) and 352; (2) the trial court failed to instruct sua sponte on accomplice testimony; and (3) the prosecutor committed prejudicial misconduct in closing argument. Court reject defendants contentions and affirm the judgment.

A jury convicted defendant Edward Charles Caston of possessing a firearm as a convicted felon and possessing a short-barreled shotgun, and found that he had three prior serious felony convictions within the meaning of the three strikes law. He was sentenced to state prison for two concurrent terms of 25 years to life.
On appeal, defendant contends that the trial court erred by denying his motion to suppress the firearms and related evidence as fruits of an unlawful prior search of the place where that evidence was found. Court affirm the judgment.

Early one morning in February 2006, a police officer observed defendant Rudolph Summerfield walking down the street with a thick-shafted cane. As the officer drove by him, defendant hid behind a trash dumpster. When the officer approached, defendant moved the cane to his shoulder. The officer told him to put the cane on the ground. Inspection of the cane showed a 27-inch sword. Court appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and Court received no communication from defendant. Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant.



DISPOSITION

The judgment is affirmed.

Plaintiff Edith Cartwright appeals following the grant of summary judgment in favor of defendants in her action for employment discrimination-retaliation and breach of contract. We will affirm the judgment because plaintiffs counsel has virtually ignored his duty to cite to the record in plaintiffs opening and reply briefs.
Plaintiffs opening brief begins with a one-sentence introduction and then moves into a 14-page statement of the case. While this statement does contain some citations to the record, 13 out of the 14 pages are consumed by 29 single spaced footnotes that contain the facts of the case -- none of which contain any citations to the record. In the legal discussion section of the brief, plaintiffs counsel devotes two paragraphs to his analysis of the claims on appeal, only one of which contains an oblique reference to the record. The judgment is affirmed.

In May 2006, police received a report of a person attempting to purchase drugs at a local park. Responding officers noticed that defendant James Joseph Sparks matched the description of the suspect. Near the front of defendants truck, officers found a cut straw and a folded piece of foil containing residue of suspected drugs. A search of the truck revealed a fanny pack containing a homemade pistol. Defendant admitted possessing the pistol and loading it with shotgun pellets, but he denied knowing that it was unlawful to possess such a weapon. Defendant pleaded no contest to carrying a loaded firearm. (Pen. Code, 12031, subd. (a)(1).) In exchange for his plea, three related counts were dismissed with a Harvey waiver. Defendant was sentenced to state prison for the midterm of two years, awarded 50 days of custody credit and 24 days of conduct credit, and ordered to pay a $400 restitution fine ( 1202.4, subd. (b)), a $400 restitution fine suspended unless parole is revoked ( 1202.45), and a $20 court security fee ( 1465.8). Defendant appeals. The judgment is affirmed.

In November 2004 a jury convicted Rodney Bernard Barno (Barno) of stalking (Pen. Code,[1] 646.9, subd. (a); count 1); stalking in violation of a restraining order ( 646.9, subd. (b); count 2); seven counts of making criminal threats ( 422; counts 3, 4, 6-10); vandalism causing damage exceeding $400 ( 594, subd. (a)(b)(1); count 11); six counts of vandalism causing damage less than $400, a misdemeanor ( 594, subd. (a)(b)(2)(A); counts 5, 11-16), and two counts of making harassing telephone calls, a misdemeanor ( 653m, subd. (a)). Barno admitted he had suffered three prior strike juvenile adjudications, two for assault with a deadly weapon ( 245, subd. (a)) and one for discharging a firearm in a grossly negligent manner ( 246). On appeal Barno asserts (1) the jury was improperly instructed on its use of evidence of his prior acts of domestic violence; (2) the court abused its discretion in admitting evidence of his past acts of domestic violence; (3) the court erred by allowing the People to prove the damage caused by his vandalism to a car with an invoice showing the cost of repair; (4) the court erred in not giving, sua sponte, a unanimity instruction on the facts supporting counts 6, 9 and 10; (5) there is insufficient evidence to support the criminal threat convictions in counts 3, 6 and 7; (6) the court erred by not instructing, sua sponte, on principles of accomplice liability; (7) the court erred in failing to instruct the jury that a prosecution witness was an accomplice as to count 11; (8) he was provided ineffective assistance of counsel because trial counsel failed to argue that the court could not use his prior juvenile adjudications as strikes; (9) the court abused its discretion in failing to strike his prior juvenile adjudications; and (10) the cumulative effect of the errors rendering the proceedings fundamentally unfair. In a supplemental opening brief Barno asserts that (1) the court should have also given a unanimity instruction on count 3, and (2) use of his prior juvenile adjudications as strikes violated the federal Constitution. Court affirm.

In this child molest case involving one of his daughters and a stepdaughter, Jose Cervantes Gomez proceeded to jury trial charged with 26 counts of lewd and lascivious acts upon a child under 14 years of age (Pen. Code,[1] 288, subd. (a)) and six misdemeanor counts of cruelty to a child with injury ( 273a, subd. (b)). As to 12 of the felony counts (counts 1, 2, 6, 7, 11, 12, 16, 17, 21, 22, 26, & 27), it was further alleged that Gomez had engaged in substantial sexual conduct on a child. ( 1203.66, subd. (a)(8).) As to all 26 felony counts, it was further alleged that he had committed the offenses against more than one victim. ( 667.61, subds. (b), (c), & (e).)As Court explain below, we reverse on grounds the trial court prejudicially erred in making several evidentiary rulings that denied Gomez a fair trial.

A jury convicted Rico Lamar Little of two counts of assault with force likely to produce great bodily injury against Patrick Malone and Freddie D. McNew in violation of Penal Code[1]section 245, subdivision (a)(1) (counts 1 and 6) and two counts of battery with serious bodily injury against the same in violation of section 243, subdivision (d) (counts 2 and 5). The jury also found true the two allegations as to counts 1 and 6 regarding Little's personal infliction of great bodily injury in violation of section 12022.7, subdivision (a). Little was sentenced to a total of nine years in state prison. He received the upper term of four years for the assault against Malone (count 1) based on judicial findings regarding: (1) the viciousness of the crime (Cal. Rules of Court,[2]rule 4.421(a)(1)), (2) the vulnerability of the victim (rule 4.421(a)(3)), (3) the threat to society posed by Little (rule 4.421(b)(1)), (4) Little's prior convictions (rule 4.421(b)(2)), (5) Little's probationary status at the time of the commission of the crime (rule 4.421(b)(4)), and (6) Little's unsatisfactory prior performance on probation (rule 4.421(b)(5)). Little was also sentenced consecutively to (1) one year, one-third the midterm, for the assault on McNew (count 6), and (2) three years and one year, respectively, for the personal infliction of great bodily injury allegations against Malone and McNew. The court stayed Little's sentences for the battery convictions (counts 2 and 5) under section 654.

Little contends (1) the court violated his federal and state constitutional rights to confront the witness against him at trial when it found that the prosecution exercised due diligence in its efforts to produce Malone, an unavailable witness due to military deployment, and allowed Malone's preliminary hearing testimony to be read to the jury; and (2) the court violated his federal constitutional rights to a jury trial and proof beyond a reasonable doubt, under Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham) when he was sentenced to the upper term on count 1 based on aggravating factors found by the court. We reverse the upper term sentence for the assault on Malone because Little was denied his federal constitutional rights to a jury trial and proof beyond a reasonable doubt by the imposition of the upper term on the basis of judicial factfinding. Court otherwise affirm the judgment and remand the matter for further proceedings not inconsistent with this opinion.

Robert Chavira entered negotiated guilty pleas to receiving stolen property (Pen. Code, 496, subd. (a))[1]and attempting to dissuade a witness ( 136.1, subd. (b)(1)). He admitted a prior serious felony conviction (a strike) ( 667, 1170.12, 668) and serving a prior prison term ( 667.5 subd. (b), 668). The plea agreement included a lid of seven years and Chavira waived the right to have a jury determine whether aggravating facts supported the upper term at sentencing. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely); see Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham).) The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Chavira on this appeal.
The judgment is affirmed.

Fred Scalf entered negotiated guilty pleas to two counts of engaging in lewd and lascivious conduct with a minor under the age of 14 years. (Pen. Code, 288, subd. (a).) He admitted having substantial sexual conduct with the victim. ( 1203.066, subd. (a)(8).) The court sentenced him to prison for eight years: the six-year middle term on one count with a consecutive two years on the second (one third the middle term). Scalf contends the trial court abused its discretion in denying probation. The judgment is affirmed.

Cheyenne B. was born in September 2000 to Nicholas B. and Ann B.[3] In January 2004 the San Diego County Health and Human Services Agency (Agency) detained Cheyenne after Ann hit her with a brush, bruising her lower back and buttocks. The Agency filed a petition under section 300, subdivisions (a) and (b), alleging Cheyenne had suffered serious physical harm as a result of Ann's inappropriate physical discipline, and Cheyenne was at risk of serious physical harm from ongoing domestic violence in the home and Nicholas and Ann's chronic methamphetamine use. The court sustained the allegations of physical abuse under section 300, subdivisions (a) and (b). The court ordered Nicholas to comply with his case plan, which included a domestic violence treatment program, general counseling, parenting education, and substance abuse treatment and testing through the Substance Abuse Recovery Management System program (SARMS). The order is affirmed.