CA Unpub Decisions

Defendant pled guilty to second degree burglary (Pen. Code, 459)[1]and admitting having previously suffered a strike conviction. ( 667, subds. (b)-(i).) As part of his plea bargain, he waived his right to appeal. He was sentenced to the agreed to term of 6 years in prison. There is no certificate of probable cause in the record before us. Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
Court offered the defendant an opportunity to file a personal supplemental brief, which has been read and considered.

Carlos Gilbert Law took cigarettes from a gas station market where he elbowed and threatened a market clerk. A jury found him guilty of second degree robbery ( 211,[1]212.5, subd. (c); count one), second degree burglary ( 459; count two), and petty theft with a prior ( 488, 666; count three). The court sentenced him to an aggregate five-year eight-month sentence an aggravated five-year term for second degree robbery ( 211, 212.5, subd. (c), 213, subd. (2); count one) and a consecutive eight-month (one-third middle) term for second degree burglary ( 459, 460, subd. (b), 461, 2; count two) and stayed sentence on the petty theft with a prior ( 488, 666; count three). On appeal, Law challenges the lack of a probable cause instruction and the lack of a unity instruction, argues insufficiency of the evidence of incarceration for the prior in the petty theft with a prior, claims that his convictions of both robbery and petty theft with a prior constitute impermissible multiple convictions, and contends that there is reversible error in the sentencing on both the burglary and the robbery. Court strike from the judgment the consecutive sentence on the count two burglary and remand the case with directions to impose a stay of sentence on that count, modify to misdemeanor petty theft the judgment of conviction on the count three felony petty theft with a prior and remand the case for a new sentencing hearing on that count, and otherwise affirm the judgment.

Defendant Jonathan Hamilton fired a gun into a car carrying four passengers, including two young children in the back seat. The gunshot struck and seriously injured the driver of the car. A jury subsequently convicted defendant of one count of attempted premeditated murder (Pen. Code,[1] 187, subd. (a), 664, subd. (a); count 1), one count of shooting at an occupied vehicle ( 246; count 2), and four counts of assault with a deadly weapon ( 245, subd. (a)(2); counts 3-6). The jury found the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), that defendant personally discharged a firearm causing great bodily injury in counts 1 and 2 ( 12022.53, subd. (d)), that defendant personally used a firearm in counts 1 through 6 ( 12022.5, subd. (a)(1)), and that defendant personally inflicted great bodily injury in counts 1 through 3 ( 12022.7, subd. (a)).

The trial court sentenced defendant to an aggregate prison term of 57 years to life. The court sentenced defendant to an indeterminate term of 40 years to life as follows: 15 years to life for the attempted premeditated murder in count 1 and a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The court sentenced defendant on count 4 to a consecutive determinative term of 17 years as follows: the middle term of three years for assault with a firearm, 10 years for the section 186.22, subdivision (b)(1) enhancement, and four years for the section 12022.5, subdivision (a)(1) enhancement. The court sentenced defendant on both counts 5 and 6 to concurrent terms of 17 years as follows: three years for assault with a firearm, 10 years for the gang enhancement, and four years for the firearm use enhancement. Sentencing on counts 2 and 3 was stayed pursuant to section 654.
On appeal, defendant contends: (1) insufficient evidence supports his conviction of attempted premeditated murder; (2) insufficient evidence supports his convictions of assault with a deadly weapon on the two children in the car (counts 5 and 6); (3) if sufficient evidence supports counts 5 and 6, the court erred in refusing to give a proposed defense instruction that would have told the jury that in order to convict defendant of the crime of assault with a deadly weapon, it had to find defendant actually knew of the presence of the person assaulted or shot at, not simply that he should have known that such person was there; (4) the imposition of multiple street gang enhancements violated section 654; and (5) the lesser firearm use enhancements in counts 1 and 2 must be stricken. Court affirm.

Appellant, Kao Yang, was charged in a criminal complaint filed June 20, 2006 with second degree burglary (Pen. Code, 459 & 460, subd. (b), count one) and receiving stolen property ( 496, subd. (a), count two). On July 18, 2006, Yang entered into a plea agreement. Yang executed a felony advisement, waiver of rights, and plea form (form) acknowledging, and waiving, his constitutional rights pursuant to Boykin/Tahl. In exchange for a no contest plea to count one, Yang would receive a lid of the two-year midterm and count two would be dismissed. Yang initialed acknowledgments on the form that he would have to pay a restitution fine of between $200 and $10,000. The trial court reviewed the terms of the plea agreement with Yang. Counsel for a codefendant, Cherith Drescher, stated the case was within the police reports. Yangs counsel, Kevin Thompson, joined in that statement. The court questioned Yang and determined that he had read, understood, initialed, signed, and had had no questions concerning the form. Yang indicated that he understood and was waiving his constitutional rights. Yang pled no contest to second degree burglary of a vehicle.

A jury convicted appellant Michelle Wilson of possession of cocaine base for sale (Health & Saf. Code, 11351.5; count 1) and possession of heroin for sale (Health & Saf. Code, 11351; count 2). In a separate proceeding, the court found true enhancement allegations that appellant had suffered three prior convictions of drug-related offenses specified in Health and Safety Code section 11370.2, subdivision (a) and had served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)). The court imposed a prison term of 14 years, consisting of the four-year midterm on count 1, three years on each of the three prior drug offense enhancements and one year on the prior prison term enhancement. The court imposed a concurrent three-year term on count 2 and awarded appellant 536 days of presentence credits, consisting of 358 days of actual time credits and 178 days of conduct credits. Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing. Court affirm.

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.450, 8.452) to vacate the juvenile courts order setting a Welfare and Institutions Code section 366.26 hearing as to his daughter R. Court conclude his petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court dismiss the petition as facially inadequate.

Defendant Henry Rodriguez was convicted of one count each of first and second degree murder and one count of conspiracy to commit murder for the killing of Jeanette Espeleta and her unborn child. The actual shooter, coconspirator Richard Tovar, was separately tried and convicted. We affirmed his conviction in People v. Tovar (June 30, 2003) G028242 (nonpub. opn.). Defendant was sentenced to 25 years to life for the first degree murder and 15 years to life on the second degree murder, to run consecutively. The sentence for conspiracy was stayed under Penal Code section 654 (all further references are to this code unless otherwise stated). Defendant appeals on several grounds, claiming a retrial after we reversed his first conviction constituted double jeopardy, admission of testimony by a jailhouse informant violated his right to counsel, and it was error to deny his motion for mistrial on the ground of group bias for challenges to two African-American potential jurors. He argues admission of testimony of one of the participants in the crime was inadmissible hearsay and violated his rights under the confrontation clause. He also complains of the exclusion of purported exculpatory testimony. He asserts there was insufficient evidence to support conviction, challenges several jury instructions, claims prosecutorial misconduct, and criticizes his consecutive sentences. Finding none of these arguments meritorious, Court affirm.

A jury found Chung Phuoc Phung guilty of residential burglary and robbery. He challenges the sufficiency of the evidence to support his convictions, and complains the prosecutor committed misconduct during closing argument. He also contends the trial court erred in failing to stay a consecutive term for robbery under Penal Code section 654 (all further statutory references are to this code unless noted). For the reasons expressed below, Court modify the judgment and affirm.

Jeff Niblack appeals from a judgment in which the trial court confirmed an arbitrators decision finding Trang Diem Thi Le validly revoked an offer to sell Niblack the home he was renting. The arbitrator awarded Niblack $63,700 in unjust enrichment compensation for improvements he made to the home and for property taxes he paid, plus $10,500 in attorney fees. Niblack contends the trial court erred in denying his motion to vacate the award. He argues the award must be vacated because the arbitrator: (1) failed to fully and completely resolve the issues submitted to arbitration as required by the parties stipulation to arbitration, (2) violated a statutory duty to postpone the arbitration hearing to receive additional evidence (Code Civ. Proc., 1286.2, subd. (a)(5)),[1] and (3) demonstrated bias by attaching an unfair condition to receiving additional evidence, namely Les consent. Court conclude substantial evidence supports the trial courts determination Niblacks contentions were unfounded, and that he presented no evidence he was substantially prejudiced by the arbitrators actions, as required by statute to vacate the award. ( 1286.2, subd. (a)(3) & (5).) Court therefore affirm the judgment.

Craig S. Wasserman appeals from a postdissolution order that awarded child support to Terryl L Mairs. Wasserman argues there were errors that require reversal. Court disagree and affirm.

Michael P. (father) and Veronica P. (mother) appeal from the order of the juvenile court terminating their parental rights to their daughter, Raven P., who is now six years old. (See Welf. & Inst. Code, 366.26; all further statutory references are to this code.) Father and mother each contend the court erred by declining to apply the statutory exception to termination where a strong parent child bond exists. ( 366.26, subdivision (c)(1)(A).) Because substantial evidence supports the juvenile courts conclusion mother failed to establish the threshold requirement of consistent visitation (ibid.) and that neither parents bond with Raven was so strong that severing it would outweigh the benefits of adoption, Court affirm the juvenile courts order.

By information filed May 27, 2005, defendant Binh Cuong Tran was charged with two counts of rape (Pen. Code, 261, subd. (a)(2); counts 1 and 5) and one count each of false imprisonment (Pen. Code, 236-237; count 2), making a criminal threat (Pen. Code, 422; count 3), and forcible oral copulation (Pen. Code, 288a, subd. (c)(2); count 4).[1] The information further alleged defendant personally used a deadly weapon in the commission of count 5 ( 12022.3, subd. (a)). On January 12, 2006, a jury found defendant guilty on all counts and found the special allegation true. The trial court sentenced defendant to a total term of 24 years and 8 months in prison, comprised of a two-year term for count 2, a consecutive subordinate term of eight months for count 3, consecutive terms of six years each for counts 1, 4, and 5, and four years for use of a deadly weapon in the commission of count 5. Defendant raises several claims of error on appeal. Court find no reversible error and affirm.

Nine of the fifteen general partners in a general partnership filed an action for dissolution of the partnership. A stipulated judgment was entered dissolving the partnership. Five general partners who were not parties to the dissolution action purport to appeal from the stipulated judgment. These nonparty partners never attempted to intervene in the trial court and never filed a motion to vacate the judgment. Accordingly, they lack standing to appeal from the judgment, and their purported appeal must be dismissed.

Appellant Jackie Love was charged by information with possession for sale of cocaine base (count 1) (Health & Saf. Code, 11351.5); possession of a firearm by a felon (count 2) (Pen. Code 12021, subd. (a)(1)); possession of ammunition (count 3) (Pen. Code, 12316, subd. (b)(1)); and misdemeanor possession of marijuana (count 4) (Health & Saf. Code, 11357, subd. (b)).
Appellant entered a plea of not guilty. She filed a motion pursuant to Penal Code section 1538.5 to suppress evidence seized during a search of her home. The trial court denied the motion and, pursuant to a negotiated plea, she entered a plea of no contest to possession for sale of cocaine base. The remaining counts were dismissed. The trial court suspended sentencing and placed appellant on three years formal probation with the condition that she serve 180 days in county jail. Appellant claims her suppression motion should have been granted and the evidence seized from her apartment excluded. She contends the matter must be remanded so she can withdraw her plea. Court disagree and affirm.