CA Unpub Decisions

Defendant Zacchaeus Nathan Watie was convicted of carjacking and robbery arising out of a single incident involving several victims. On appeal, he contends the evidence is insufficient to sustain his conviction for carjacking. Court affirm.

Defendant Andrew Clive Rance pleaded no contest to possessing methamphetamine and admitted one prior prison term. His plea included a Harvey (People v. Harvey (1979) 25 Cal.3d 754) waiver, permitting the court to consider at sentencing his prior criminal history, and the entire factual background of the case--including any unfiled, dismissed, or stricken charges, allegations, or cases. The court sentenced defendant to prison and imposed the upper term.
On appeal, defendant contends the imposition of the upper term based on facts that were not submitted to a jury violates Sixth and Fourteenth Amendment rights. (Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856](Cunningham). He also contends the court erred in imposing a $150 drug program fee because it found he had no ability to pay discretionary fines and fees or attorneys fees. We will not address the merits of the first issue because defendant has not obtained a certificate of probable cause. (See People v. Mendez (1999) 19 Cal.4th 1084, 1099.) The second contention has no merit. Court affirm the judgment.

On July 17, 2006, Dax Lee Lovejoy stabbed Logan Jewell in the back with a knife several times. The victim had four stab wounds in the back, one in the neck, and a laceration above the eye, and was hospitalized for five days. A jury found Lovejoy guilty of assault with a deadly weapon and by means likely to produce great bodily injury (GBI) (Pen. Code, 245, subd. (a)(1); all further statutory references are to the Penal Code), with personal use of a deadly or dangerous weapon (a knife) ( 12022, subd. (b)(1)) and personal infliction of GBI ( 12022.7, subd. (a)). Lovejoy admitted serving a prior prison term ( 667.5, subd. (b), 668). Lovejoy appeals, contending the one-year enhancement for knife use must be stricken because knife use was an element of the substantive offense. The People properly concede the point. (People v. McGee (1993) 15 Cal.App.4th 107; People v. Summersville (1995) 34 Cal.App.4th 1062, 1065, 1069-1070.)
The judgment is modified by striking the one year Penal Code section 12022, subdivision (b)(1) knife use enhancement. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.

Seavon Pierce and Dante Lewis appeal from judgments convicting them of five counts of robbery with gang enhancements. Pierce argues the trial court erred in granting his self-representation motion without holding a competency hearing and without granting him a continuance. Regarding the gang enhancement, Pierce and Lewis argue (1) the trial court erred by refusing to bifurcate the trial of the gang enhancement from the trial of the robbery offenses, (2) the trial court erred by admitting expert opinion testimony that the robbery was for the benefit of and in association with the gang, (3) there is insufficient evidence to support the gang enhancement, and (4) the trial court erroneously answered a jury question regarding the gang enhancement. They also argue (1) the evidence is insufficient to support vicarious gun use enhancements for three of the counts, (2) the trial court erroneously instructed the jury regarding constructive possession by employees, and (3) there was insufficient evidence of constructive possession by two of the victims.
Court find no reversible error and affirm the judgments.

A jury found Antoine Mitchell guilty of receiving a stolen vehicle. (Pen. Code, 496d.)[1] Mitchell waived his right to a jury trial on allegations of a prior Vehicle Code section 10851 conviction ( 666.5, subd. (a)) and a prior prison term ( 667.5, subd. (b)) and admitted those allegations. The court sentenced him to four years in prison: the three-year middle term for receiving a stolen vehicle with a prior Vehicle Code section 10851 conviction and one year for the prior prison term. Mitchell appeals, contending the evidence is insufficient to establish he knew the vehicle was stolen. Court affirm.

This case is before us upon transfer from the California Supreme Court with directions to vacate our decision and reconsider it in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval I). In accordance with the direction of the Supreme Court, we have vacated and reconsidered our earlier decision after reviewing defendant and the Peoples supplemental briefs. Contrary to our previous decision, we conclude the trial courts violation of defendants Sixth Amendment right to a jury trial on the factors relied on by the trial court in imposing an aggravated sentence on counts 1, 3, and 7 was harmless error under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). The remainder of our previous decision remains unchanged. Defendant Martel Antwone Sutton broke into Jane Does home (the victim) and hit her repeatedly with a frying pan when she discovered him in her home in the middle of the night. Defendant then robbed and raped the victim in her home. When done raping the victim, defendant noticed a shed in the victims backyard, locked her in the shed, and drove off in the victims car. Court reject defendants contentions and affirm the judgment.

Defendant Joseph Neil Kelly appeals from judgment entered following a jury conviction for first degree burglary (count 1; Pen. Code, 459).[1]Defendant was sentenced to an upper term of six years in state prison. On appeal, defendant contends (1) the trial court erred in denying his motion to represent himself (Faretta motion)[2]; (2) there was insufficient evidence of burglary; (3) the prosecution was barred from arguing the theory of burglary; and (4) imposition of the upper term sentence violated Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856, 860 (Cunningham). Court conclude that the trial courts denial of defendants Faretta motion was harmless error, but we find that while there was no evidence that defendant entered the victims house with the intent to commit larceny, there was sufficient evidence that he committed the felony of stalking based upon his repeated threats and harassment of the victim and her family.

Plaintiffs Great American Insurance Companies (GAIC), along with Gary Howard and Marlene Howard (Howards), filed a lawsuit against private property owners and the City of San Jacinto (City), for damage done to their property when a windstorm blew large tumbleweeds onto the Howardss property. As the Howardss insurer, GAIC sought recovery of amounts it paid to the Howards under their policy. The Citys liability was grounded in the fact it had posted nuisance notices on the neighboring properties under the municipal Weed Abatement Ordinance. The plaintiffs claim (1) the ordinance created a mandatory duty on the part of the City to clear the weeds; and (2) the notice, which gave the property owners 10 days to abate the nuisance or it would do so at the owners expense, created an implied contract obligating the City to do the work, of which the plaintiffs were third party beneficiaries. The trial court sustained the Citys demurrer to the plaintiffs first amended complaint, without leave to amend. Plaintiffs appeal from the judgment of dismissal as to the City, which was subsequently entered. Court find no mandatory duty on the part of a municipality to clear tumbleweeds from private property, nor any implied contract to do so, and affirm.

Candis C. (mother of A.D. and A.P.) appeals the denial of her petition to modify pursuant to Welfare and Institutions Code, section 388, and the adequacy of the notices sent pursuant to the Indian Child Welfare Act (ICWA); Daniel D. (father of A.D.) and Pedro P. (father of A.P.) appeal the termination of their respective parental rights, joining in Candis C.s arguments and challenging the adequacy of notices sent pursuant to ICWA; and Julia D. (paternal grandmother of A.D.) appeals the summary denial of her petition to modify pursuant to section 388. Each party joins in the arguments of the other parties. Court affirm in part and reverse the order terminating parental rights due to inadequate notice under ICWA. Court direct the juvenile court to order the Riverside County Department of Public Social Services (DPSS) to serve proper notices to the relevant Indian tribes and, thereafter, determine whether the children are Indian children.

In this matter petitioner Lee Staben challenges a decision by the Board of Parole Hearings (Board) finding him unsuitable for parole. Court resolve the case on the simple basis that no evidence supports the Boards stated reasons for this finding. Accordingly, Court direct the Board to vacate its decision and conduct a new parole hearing for petitioner, following the guidance provided in this opinion. (Pen. Code, 3041, subd. (b).)

A jury convicted defendant of attempted premeditated murder and assault and found true the related allegations of using a knife and great bodily injury. ( 187/664, 245, 12022, subd. (b)(1), 12022.7, subd. (a).) Defendant admitted having a serious prior offense and a strike prior. ( 667, subds. (a), (c), & (e)(1), 1170.12, subd. (c)(1).) The court sentenced defendant to a total prison sentence of nine years plus 14 years to life. Defendant appeals, objecting to the admission of photographs of his gang tattoos and claiming a violation of his Sixth Amendment right to effective assistance of counsel for failure to request an instruction on provocation. Court reject both these contentions, as well as defendants further claim of cumulative error, and affirm the judgment.

A jury convicted defendant of three sets of crimes: one felony and two misdemeanor drug offenses committed in September 2004 (Health & Saf. Code, 11364 & 11378; Bus. & Prof. Code, 4140); another felony drug offense committed in January 2005 (Health & Saf. Code, 11377, subd. (a)); and a felony burglary committed in January 2006 ( 459). The trial court found true the allegations as to the fourth and fifth counts that defendant committed those offenses while released on bail. ( 12022.1.) The court sentenced defendant to a total prison term of seven years four months. Defendant contends the trial court abused its discretion and committed constitutional error by consolidating the drug charges with the burglary charge. Court disagree on both points and affirm the judgment. Court remand for the court to correct the errors in the record and the abstract of judgment concerning the restitution fine and the parole revocation fine. ( 1202.4 & 1202.45.)

Defendant Jose Francisco Valladares was convicted of the second degree murder of Ray Rodarte (Rodarte) and assault with a deadly weapon against Rodartes brother, Fabian Duran (Duran). In addition, the jury found that defendant personally used a knife during the murder of Rodarte and committed both crimes for the benefit of a criminal street gang. Defendant appeals, claiming the evidence is insufficient to support his convictions, the experts reliance on hearsay violated his right to confront and cross-examine the witnesses against him, and the trial court erroneously imposed a $10,000 parole revocation fine. Except to remand for clarification concerning fines, Court affirm.

In September 2004, appellant Kao Kuang Saechao pled no contest to possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)) and battery on a spouse (Pen. Code, 243, subd. (e)(1)), and admitted an allegation that he had served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)). In November 2004, the court imposed a prison term of four years, consisting of the three-year upper term on the firearm possession offense and one year on the prior prison term enhancement; suspended execution of sentence; and placed appellant on five years probation. In February 2006, appellants appointed attorney indicated to the court that appellant wished to withdraw his 2004 plea. Later in that proceeding, the court revoked appellants probation and appointed another attorney to represent appellant for the limited purpose of determining whether a legal basis existed for the withdrawal of the plea. In June 2006, the newly appointed attorney reported to the court that no such basis existed, at which point the court found appellant to be in violation of probation and imposed the previously suspended prison term. Court reverse and remand for further proceedings.