CA Unpub Decisions

Defendant Adrian Joe White was convicted of several sex crimes. Additional findings included that he was convicted of a prior serious felony within the meaning of the Three Strikes law, that he served four prior prison terms, and that he suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a). He was sentenced to prison for 69 years. He appealed, claiming the upper and consecutive terms were imposed based on facts not found by the jury, there was a dual use of facts in imposing full consecutive sentences, and the court erroneously imposed a security fee for offenses committed before the effective date of the statute. Court applied the recent United States Supreme Court case of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] and determined that defendants sentence was not properly imposed. Court determined that the matter should be remanded to the trial court for further proceedings. The California Supreme Court granted review and then transferred the matter back to this court with directions to vacate our opinion and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825. After reconsidering the matter Court affirm the judgment.

On August 14, 2004, appellant Marina Yvette Pulido was driving a car on a public street. Her husband, Mike Pulido, Sr., was riding on the cars hood. Mike lost his balance and fell onto the street, sustaining a fatal brain injury.
Appellant was convicted after jury trial of misdemeanor manslaughter without gross negligence as a lesser included offense to the crime of vehicular manslaughter with gross negligence, as charged in count II of the information. (Pen. Code, 192, subd. (c)(2).)[2] She was acquitted of voluntary manslaughter and assault with a deadly weapon, as charged in counts I and III of the information. Appellant was placed on court probation for 36 months and ordered to serve 90 days in jail as a condition of probation.
Although the jury was instructed on self-defense, appellant argues that the trial court erred by failing to instruct, sua sponte, on the related defense of lawfully resisting the commission of a public offense. ( 692.) Alternatively, she argues that defense counsel was deficient because he did not request instruction on this defense. Appellant also challenges admission of expert testimony that zero miles per hour is the safe speed to drive a vehicle when a person is on the hood. None of appellants arguments are convincing; Court affirm.

A jury found appellant guilty of possessing cocaine (Health & Saf. Code, 11350, subd. (a); count one) and possessing less than 28.5 grams of marijuana (Health & Saf. Code, 11357, subd. (b); count 3.) The jury also found appellant not guilty of resisting or obstructing a peace officer in the discharge of the officers duties. (Pen. Code, 148, subd. (a)(1)); count 2.) Appellant presented no defense to the marijuana possession charge.[1] As to the count two cocaine possession charge, appellant did not dispute the evidence showing that he was in possession of 14 milligrams of a substance containing cocaine. His unsuccessful defense was that he did not possess a usable amount of a substance containing cocaine. The court placed appellant on three years probation pursuant to Penal Code section 1203.1b, subdivision (a) and imposed various fines and penalty assessments, as well as $40 per month in probation supervision costs.

Pursuant to a plea agreement, appellant Nicholas Dueck pled no contest to grand theft of a firearm (Pen. Code, 487, subd. (d)).[1]The court placed appellant on three years probation, one of the conditions of which was that he serve 136 days in county jail. Thereafter, appellant moved to withdraw his plea and vacate his sentence. The court denied the plea/judgment motion, and the instant appeal followed. On appeal, appellant contends the court erred in denying the plea/judgment motion. Court affirm.

Defendant Luis Miguel Menera fired several shots into a car stopped at a stoplight. Consequently, he was convicted of the attempted murder of Vicente Tostado (count one), assault with a semiautomatic firearm upon his former girlfriend, Elizabeth Gonzalez (count two), assault with a semiautomatic firearm upon Gonzalez and defendants 11-month-old daughter (M) (count three), and shooting at an occupied vehicle (count four). Numerous firearm and great bodily injury enhancements were also found true. Defendant appeals, claiming the evidence is insufficient to support his attempted murder conviction, the court erred in not defining semiautomatic weapon, the assault instructions erroneously allowed the jury to convict him without finding that he knew victim M was in the car when he fired, and the court made numerous sentencing errors. Court reverse count three for prejudicial instructional error.

During the week of August 20, 2005, James Fisher took his 2003 Ford truck to Country Ford for warranty work. A few days later, Fisher was informed his truck was ready to be picked up. However, when Fisher went to the dealership the truck was gone. In August 2005, Ceres Police Officer Jeremy Caron and Ceres Detective Larry Meyer were assigned to the Auto Theft Task Force. On August 25, 2005, Caron saw Fishers stolen truck parked at an apartment complex in Ceres. Caron set up a perimeter around the truck and requested assistance from other members of the task force as he watched the truck from his unmarked police car. Detective Meyer watched the truck from his unmarked police truck.[1] Caron soon saw Davidson walk a bicycle to the truck and place it in the back. Davidson got in the truck, backed out of his parking spot, but was unable to drive forward because Meyer placed his truck in front of the stolen truck. Caron attempted to box in the stolen truck by placing his car behind it but had to move to avoid a collision when Davidson backed up again. Davidson drove through the complexs parking lot and a grass area as he made his way to the street. Caron and Meyer activated their emergency lights when they attempted to box Davidson in and activated their sirens when Davidson drove off. Following independent review of the record we find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.

A nonprofit corporation sued Madera Irrigation District (MID) for violating the California Environmental Quality Act (CEQA) in connection with MIDs approval of a water banking project and certification of the related environmental impact report (EIR). The superior court dismissed the CEQA petition on the ground that the nonprofit corporation, which was suspended during the public review period, failed to meet the standing requirements of section 21177, subdivision (b).
On appeal, the nonprofit corporation argues that an exception to the requirements of section 21177 applied because MID failed to give the notice required by law. ( 21177, subd. (e).) We conclude that the notice of availability of the draft EIR that was published in a newspaper on June 18, 2005, and stated that the public comment period ended on July 30, 2005, did not provide the public with the required 45 days notice. (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 922-923 [Citys 42-day notice by publication did not comply with section 21091, subdivision (a)].) As a result, the nonprofit corporations CEQA petition should not have been dismissed for failure to comply with section 21177, subdivision (b). Therefore, the judgment will be reversed and the matter is remanded for further proceedings.

A jury convicted appellant, Charles David Williams, Jr., of first degree burglary (Pen. Code, 459/460, subd. (a)). In a separate proceeding, the court found true allegations that Williams had three prior convictions within the meaning of the three strikes law (Pen. Code, 667, subds. (a) & (b)-(i)).
On August 11, 2006, the court sentenced Williams to an indeterminate sentence of 25 years to life. On appeal, Williams contends the court prejudicially erred by its failure to instruct the jury with CALCRIM Nos. 338 and 359. Court affirm.

On August 4, 2006, after the trial court had denied a suppression motion, appellant, Francisco Javier Lopez, entered into a plea agreement pleading no contest to allegations that he possessed methamphetamine for sale (Health and Saf. Code, 11378) and was personally armed with a firearm (Pen. Code, 12022, subd. (c)). Under the agreement, Lopez would be sentenced to prison for no more than four years four months.
On August 29, 2006, the court sentenced Lopez to prison for one year four months for possession of methamphetamine for sale and a consecutive sentence of three years for personal possession of a firearm. Lopezs total prison term is four years four months. On appeal, Lopez contends the trial court erred in denying his suppression motion because there was insufficient probable cause set forth in the search warrant affidavit to issue a warrant and that there was insufficient evidence of the informants reliability. Appellant further contends the court improperly denied his attempt to prove there was a false statement in the warrant affidavit.

Appellant Jesus Venegas Leon contends the trial court abused its discretion when it refused to permit him to withdraw his plea of guilty. Court affirm the judgment.

On May 23, 2005, Dean Dee Phillips, appellant, was convicted of being an accessory to assault likely to produce great bodily injury. Appellant admitted two prior serious felony convictions within the meaning of the three strikes law. On June 20, 2005, appellant was sentenced to prison for a term of 25 years to life. The court awarded presentence custody credits of 295 days. On November 2, 2006, this court issued an opinion (case No. F048433) finding that one of the prior serious felony convictions potentially did not qualify as a strike and Court remanded the case to the trial court for further proceedings.The judgment is otherwise affirmed.

In November 2006, the victims mother Christy H. lived with appellant, Christopher Lee Santos. Around November 20, 2006, she took her 11-month-old daughter to a hospital for a fever and was informed that her daughter had perianal warts around her anus. Santos was also diagnosed with venereal warts. In a police interview, Santos stated that a couple [of] days after Thanksgiving he was in his boxer shorts, bouncing the victim on his lap, when his erect penis came out of his shorts and touched the victims anus after the snaps on her pajamas came undone. Following a preliminary hearing, on February 5, 2007, the district attorney filed an information charging Santos with one count of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, 288, subd. (a)) and a great bodily injury enhancement ( 667.61, subd. (e)).
On March 7, 2007, defense counsel filed a motion to dismiss the great bodily injury enhancement. On March 8, 2007, the prosecution filed a response. On March 13, 2007, the court denied the motion to dismiss. On March 26, 2007, the court heard and denied Santoss Marsden motion. The judgment is affirmed.

After a plea bargain, defendant was sentenced to the upper term of four years for a Vehicle Code violation. Although the trial court based the upper term on defendants prior convictions, he claims this is unconstitutional under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court disagree and affirm.

Defendant Jeffrey Hobbs was convicted by jury of one count of felony assault with a deadly weapon against Billy Cardoso (Pen. Code, 245, subd. (a)(1))[1] and one count of misdemeanor battery ( 242/243, subd. (a)) against Cindy Rosengarten. In a bifurcated proceeding, the court found true enhancement allegations that defendant had suffered two prior convictions under the Three Strikes law ( 667. subds. (b)-(i); 1170.12), two prior serious felony convictions ( 667, subd. (a)), and one prior prison term ( 667.5, subd. (b)). At sentencing, the court granted defendants motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his strike priors. The court imposed the three-year midterm on the assault with a deadly weapon count, plus 10 years for the two prior serious felony convictions and one year for the prison prior, for a total term of 14 years in state prison. The court sentenced defendant to 90 days in jail on the misdemeanor battery count and held that defendant had already satisfied that sentence. On appeal, defendant contends the trial court erred when it refused his request to instruct the jury regarding self defense. Court conclude there was insufficient evidence to support giving a self defense instruction and affirm the judgment.