CA Unpub Decisions

A modification decision.

Bill Bochicchio appeals from the judgment entered following his conviction by jury of first degree residential burglary (Pen. Code, 459)[1] with court findings that he suffered a prior felony conviction ( 667, subd. (d)), and a prior serious felony conviction ( 667, subd. (a)), following the denial of a suppression motion ( 1538.5). The court reinstated his previous sentence of 17 years in prison for the present offense, plus 8 months on an unrelated case. Appellant claims the trial court erroneously denied the suppression motion and committed sentencing error. Court affirm the judgment.

Jesus Rivera appeals from his conviction of attempted murder, assault with a firearm, and shooting from a motor vehicle. He argues that his conviction for assault with a firearm should be reversed because that crime is a lesser included offense to the offense charged in count 3, discharging a firearm from a motor vehicle, and to the offense charged in count 1, attempted murder. Appellant also argues that the imposition of the upper terms on counts 2 and 3 and the enhancement on count 2 violated his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296. In our original opinion, Court reversed the conviction for assault with a firearm (Pen. Code, 245, subd. (a)(2)), concluding that it was a lesser included offense to the crime of discharging a firearm from a motor vehicle ( 12034, subd. (c)), on which appellant also was convicted. We affirmed the judgment on all other grounds. In reaching our decision to reverse in part, we followed In re Edward G. (2004) 124 Cal.App.4th 962 (Edward G.). The Supreme Court granted review of our decision as a grant and hold (S153103), pending its decision in People v. Licas (S140032), then under review. In its decision in People v. Licas (2007) 41 Cal.4th 362 (Licas), the court held that assault with a firearm is not a lesser included crime to discharge of a firearm from a motor vehicle. The reason is that the assault crime includes an elementpresent ability to commit a violent injurythat the firearm offense does not. (Licas, supra, 41 Cal.4th 367, 370.) Edward G. was disapproved on this issue. (Ibid.) Following its decision in Licas, the court remanded the present case to this court for reconsideration of the lesser included offense issue in light of its decision. Court invited the parties to present their views by letter briefs. They have done so, and we have reviewed their responses. Respondent argued that, following Licas, Court must affirm the assault count. Appellant acknowledged that we are bound to follow the Supreme Court decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456), but asserted that the decision is wrong and that its application would violate appellants federal due process rights and the former jeopardy rule.

Tramayne Leon Wood, also known as Tramayne Woods and Tramayne Leon Woods, appeals from a judgment entered upon his conviction by jury of first degree murder (Pen.Code, 187, subd. (a), count 1)[1]and carjacking ( 215, subd. (a), count 4). As to the murder count, the jury found to be true the special circumstance that the murder was committed during the commission or attempted commission of a carjacking ( 190.2, subd. (a)(17)). As to both counts, the jury also found to be true the firearm use allegation within the meaning of section 12022.53, subdivision (b). Appellant admitted having suffered a prior juvenile adjudication within the meaning of section 667, subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d). The trial court sentenced appellant to life without the possibility of parole (LWOP) plus a consecutive 10 years for the firearm enhancement on the murder conviction and to a consecutive five years for the carjacking conviction, doubled as a second strike, and enhanced by 10 years for the firearm enhancement. Appellant contends that (1) the trial court erred in giving a special instruction on how vehicle theft becomes carjacking, (2) the trial court erred in refusing to instruct on manslaughter, (3) the term imposed on the carjacking conviction violated the provisions of section 654, and (4) the use of appellants prior juvenile adjudication to increase his sentence violated his constitutional right to a jury trial, as articulated in Apprendi v. New Jersey(2000) 530 U.S. 466 (Apprendi) and its progeny. Court affirm.

The jury found defendants Deon Demitrius Darby, Calvin Phillips, IV, and Johnny Lee guilty in count one of conspiracy to possess cocaine for sale (Pen. Code, 182, subd. (a)(1); Health. & Saf. Code, 11351), possession of marijuana for sale in count four (Health & Saf. Code, 11359), possession of a controlled substance with a firearm in count five (Health & Saf. Code, 11370.1, subd. (a)), and maintaining a place for selling or using a controlled substance in count six (Health & Saf. Code, 11366). Darby and Phillips were also found guilty in count two of possession of cocaine for sale (Health & Saf., 11351) and in count three of possession of cocaine base for sale (Health & Saf., 11351.5). Lee was also found guilty of lesser included offenses of possession of cocaine as to count two (Health & Saf., 11350) and possession of cocaine base as to count three (Health & Saf., 11350). Lee and Phillips were found guilty by the jury in counts nine and ten, respectively, of felon in possession of a firearm ( 12021, subd. (a)). The jury found true special allegations that defendants committed the crimes for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). In a bifurcated proceeding, the trial court found true the special allegation that Lee had one prior strike conviction ( 1170.12, subds. (a)(d), 667, subds. (b)(i)) and had served four prior prison terms ( 667.5, subd. (b)). Phillips admitted serving two prior prison terms ( 667.5, subd. (b)). All three defendants were sentenced to state prisonLee for 21 years four months, Phillips for 14 years eight months, and Darby for 12 years eight months. The trial court is to insure the abstract of judgment is corrected to comport with the modifications we have ordered.

Defendant and cross complainant Jadranka Bach appeals from a judgment ordering her to take certain actions to complete the rescission of a home equity loan she obtained from plaintiff and cross defendant Greenpoint Mortgage Funding, Inc. (Greenpoint), and ordering that she take nothing on her cross complaint for slander of title. Court affirm the judgment

Joe Juarez appeals from the judgment entered following his no contest plea to evading an officer with willful disregard for the safety of persons and property, count 1 (Veh. Code, 2800.2, subd. (a)), driving while having a .08 percent or higher blood alcohol level, count 3 (Veh. Code, 23152, subd. (b)), his admission within the meaning of Vehicle Code sections 23550 and 23550.5 that within the last 10 years he suffered three prior convictions of Vehicle Code section 23152 and his admission that he suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)). He was sentenced to prison for a total of five years and four months. He requested but was denied a certificate of probable cause.

Jose N. Lopez appeals from the judgment entered following his guilty plea to attempted willful deliberate and premeditated murder (Pen. Code, 664/187, subd. (a)), his admission that he personally and intentionally used a handgun within the meaning of Penal Code section 12022.53, subdivision (b) and that he committed the offense for the benefit of, at the direction of and in association with a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(C). Pursuant to the negotiated plea, he was sentenced to life in prison with the possibility of parole after serving 15 years plus 10 years for the handgun enhancement. The judgment is affirmed.

Patricia E. (mother) and Jose R. (father) seek writ review of orders by which the juvenile court: (1) sustained the allegations of a dependency petition; (2) denied mother and father family reunification services; and (3) set a hearing under Welfare and Institutions Code section 366.26 on December 19, 2007, as to Summer E., Amber E. and S.E. Court affirm the juvenile courts jurisdictional finding but accept the concession by the Department of Children and Family Services (DCFS) that the juvenile court erroneously denied fathers request for a continuance of the disposition hearing. (358, subd. (a)(3).) Based on DCFSs concession, we set aside the juvenile courts order setting a hearing under section 366.26 on December 19, 2007, and remand for further proceedings.

Following a court trial, defendant Allan Solis was convicted of first degree murder. (Pen. Code, 187, subd. (a).) On appeal, he contends there was not substantial evidence of premeditation and deliberation. Court disagree and affirm.

Following a jury trial, defendant Daryl Lee Kechloian was convicted of cultivating marijuana and was granted probation for three years. He appeals, contending the trial court violated his constitutional rights by precluding any reference to the Compassionate Use Act and that the court erred in instructing the jury it could consider defendants failure to explain or deny evidence against him. Court affirm.

During a birthday celebration defendant Victor Pettway struck his wife in the face with a shoe. Defendant pled guilty to corporal injury of a spouse with a prior domestic violence conviction. (Pen Code, 273.5, subds. (a), (e).) Sentenced to five years in prison, defendant appeals, contending imposition of the upper term violated his Sixth Amendment right to a jury trial. Court affirm the judgment.

David Robert Riker was jointly charged and tried with codefendant Richard Allan Walker for first degree murder (Pen. Code, 187;[1]count 1), robbery ( 211; count 2), burglary ( 459; count 3), and unlawful driving or taking a vehicle (Veh. Code, 10851; count 4). Three special circumstances were alleged as to the murder: (1) Riker and Walker had been previously convicted of murder ( 190.2, subd. (a)(2); (2) the murder was committed during the course of a robbery ( 190.2, subdivision (a)(17)(i); and (3) the murder was committed during the course of a burglary ( 190.2, subd. (a)(17)(vii). In May 2005 the jury found Riker guilty of first degree murder and found true the special circumstance allegations of a previous murder conviction and murder during the course of a robbery. It found the burglary special circumstance not true. The jury also found Riker guilty of robbery, grand theft as a lesser included offense of burglary, and unlawfully driving or taking a vehicle.
Walker was acquitted of the murder charge and convicted of grand theft as a lesser included offense of burglary, and unlawfully driving or taking a vehicle. The jury was unable to reach a verdict as to Walker on the robbery charge, a mistrial was declared as to that count and, on the People's motion, the robbery charge was dismissed. Riker was sentenced to life in prison without possibility of parole for the murder conviction. He was sentenced to the middle term of three years on the robbery charge, the middle term of two years on the grand theft charge; and the middle term of two years on the unlawful taking of a vehicle charge, which were stayed under section 654. The court imposed a $10,000 restitution fine and a $10,000 parole revocation fine. Court conclude that (1) Riker's conviction of grand theft must be reversed as it is a lesser included offense of robbery, (2) the abstract of judgment must be corrected accurately to reflect the sentence imposed the court, and (3) the parole revocation fine must be stricken. In all other respects, the judgment is affirmed.

Petitioner seeks habeas corpus relief to set aside an order entered nunc pro tunc that imposed a restitution fine in the amount of $6,000 pursuant to Penal Code section 1202.4, subdivision (b). Court agree that the superior court did not have the authority to modify the sentence that was imposed, and, accordingly, grant the petition.