CA Unpub Decisions

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel filed an opening brief that sets forth the facts of these cases and requests this court to review the record and determine whether there are any arguable issues on appeal. (Ibid.) 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. court address the issues raised in defendants briefs, review the record as required by Wende, and modify the judgment as to fines, fees, and custody credits.

After violently attacking his ex-girlfriend and the mother of his child, defendant Frank Anthony Rennard was charged with two counts of penetration by a foreign object, one count of forcible oral copulation, one count of first degree burglary, one count of false imprisonment, one count of assault with intent to commit rape, one count of stalking while under a restraining order, one count of corporal injury upon a spouse, one count of intentionally violating a restraining order, and one count of dissuading a witness. Defendant pled no contest to one count of penetration by a foreign object (count one) and one count of forcible oral copulation (count three). As part of the plea, it was agreed the sentence on count three would be capped at six years and defendant would agree the incidents were committed at separate times. It was also agreed the remaining counts would be dismissed with a Harvey waiver. The judgment is affirmed.

Appellant Lawrence R. appeals from a juvenile courts orders denying his Welfare and Institutions Code section 388 petition and terminating parental rights regarding the child, Brian (the child). On appeal, appellant contends that the court denied him his due process rights by failing to hold an evidentiary hearing on his section 388 petition, and consequently erred in terminating his parental rights. Court disagree and affirm the order.

Defendant Herbert Hale pleaded no contest to sale of a controlled substance (Health & Saf. Code, 11352, subd. (a)--count one)[1]and possession for sale of a controlled substance ( 11351--count two) and admitted an enhancement for a previous conviction of a specified controlled substance offense ( 11370.2, subd. (a)). The charges were based on an incident in which defendant sold heroin to an undercover police officer and was in possession of 10 individually wrapped pieces of heroin. Defendant had a previous conviction for possession for sale of a controlled substance in 1995. In exchange for defendants plea, the remaining enhancements were dismissed and it was agreed that defendant would be sentenced to state prison for a term of seven years. The trial court sentenced defendant forthwith in accord with the agreement. Court have undertaken an independent examination of the entire record and have found no other arguable errors that would result in a disposition more favorable to defendant.

After jury trial in this defamation action, judgment was entered on a special verdict for $250,000 compensatory and $100,000 punitive damages in favor of plaintiff Lieu Minh Quang (Quang) against defendant Neil Tran (Tran) and his publication (the Nang Moi newspaper or magazine). The trial court denied Tran's motion for new trial claiming excessive damages. (Code Civ. Proc., 657; all further statutory references are to this code unless noted.) Tran appeals, contending the $200,000 in compensatory damages awarded for negligent infliction of emotional distress was excessive and unsupported by the evidence. Alternatively, Tran contends the compensatory damages award of $250,000 for both defamation and infliction of emotional distress must be reduced by $50,000 to prevent an alleged double recovery. court have reviewed the record and conclude that the award of damages for negligent infliction of emotional distress is adequately supported by the evidence. We further conclude that the verdicts on that point contained elements not contained within the libel award, such that there was no award of duplicative damages as a matter of law. Court affirm the judgment.

A jury convicted Jose Luis Garcia of assault with a semiautomatic firearm,attempted kidnapping, shooting at an inhabited structure and burglary. He appeals, contending: (1) insufficient evidence supported his convictions for assault with a semiautomatic firearm, attempted kidnapping and burglary; (2) the trial court incorrectly instructed the jury on the intent element for attempted kidnapping; (3) the prosecutor committed prejudicial misconduct; and (4) his counsel provided ineffective assistance by failing to object to the misconduct. Additionally, the People note sentencing errors and errors in the abstract of judgment. Court find no prejudicial error warranting reversal of the conviction; however, Court agree that the trial court erred during sentencing and reverse the judgment as to the sentence and remand the matter for resentencing. In all other respects, Court affirm the judgment.

A jury convicted Freddie F. Ferraz of unlawfully driving a vehicle without the consent of the owner (Veh. Code, 10851, subd. (a)) and receiving a stolen vehicle (Pen. Code, 496, subd. (d)). The trial court sentenced Ferraz to a two year prison term for each crime, but stayed the sentence on the receiving a stolen vehicle count pursuant to Penal Code section 654. The judgment is affirmed.

Crystal L. appeals the findings and order entered at a nonstatutory hearing at which the court entered custody and visitation orders and terminated dependency jurisdiction. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) court therefore deny her requests to review the record for error and to address her Anders issues. (Anders v. California (1967) 386 U.S. 738.)

Jaie Rainer Thompson entered a negotiated guilty plea pursuant to Peoplev. West (1970) 3 Cal.3d 595 to second degree burglary (Pen. Code, 459) and admitted a strike ( 667 subds. (b)-(i), 1170.12, 668). The court sentenced him to prison for 32 months (twice the 16 month lower term). Thompson appeals. Court affirm.

Defendant Andrew Tinker was found guilty by a jury of receiving stolen property (Pen. Code, 496, subd. (a)),[1]driving without a valid license (Veh. Code, 12500, subd. (a)) and driving on a suspended license (Veh. Code, 14601.1, subd. (a)). On appeal, he contends the trial court committed instructional error and failed to adequately respond to the jurys request for clarification of jury instructions. Court affirm.

Pursuant to a negotiated settlement, defendant Luis Macias Barajas pled guilty to possession of pseudoephedrine with intent to manufacture methamphetamine (Health & Saf. Code, 11383, subd. (c)(1)). Without objection by defendant, the court imposed the upper term of six years because it found as aggravating factors that (1) defendant was on probation and parole at the time of the offense, and (2) he was continuing to . . . participate in criminal enterprises and antisocial behavior insofar as there were narcotics involved. Defendant appeals, contending that the courts imposition of the upper term cannot stand because it was based on reasons which violated his right to have any fact, other than a prior conviction, that increases the penalty tried to a jury and proven beyond a reasonable doubt as required by Apprendi v. New Jersey (2000)530 U.S. 466 at page 490 [147 L.Ed.2d 435, 455] and Blakely v. Washington (2004) 542 U.S. 296 at pages 303 305 [159 L.Ed.2d 403, 413-414]. The judgment is affirmed.

During the dark of a summer night, defendant Eleazar Calderon Soria fired on police officers who were called to investigate a disturbance he had caused. Convicted of assault with a firearm on a peace officer, along with other crimes and enhancements, and sentenced to an aggregate term of 48 years in state prison, defendant appeals.
Defendants two contentions on appeal are that (1) the evidence was insufficient to sustain the convictions for assault with a firearm on a peace officer and (2) the trial court erred by not instructing the jury on brandishing a weapon as a lesser included offense of assault with a firearm on a peace officer. Court conclude that (1) drawing all reasonable inferences in favor of the convictions, the evidence was sufficient to sustain the conviction for assault with a firearm on a peace officer and (2) brandishing a weapon is not a lesser included offense of assault with a firearm on a peace officer.

We therefore affirm.

The County of Yuba adopted the conclusions of an administrative law judge (ALJ), who found that Sharon Sager should be retired from her position as a Deputy Sheriff III due to her mental condition. Sager obtained a writ of mandate compelling the County to vacate its decision, and the County appealed. Court conclude that the trial court misapplied the standard of review, disregarded significant evidence, and applied the wrong substantive standard to determine whether Sager was fit for duty. Court reverse with directions to deny Sagers petition.

While on probation for robbery, defendant was arrested for and convicted of two charges arising from the same incident: lewd and lascivious act on a child under the age of 14 and burglary. Of the two enhancements alleged, the jury found true only Penal Code section 667.61, subdivision (e)(2),[1]that defendant committed the violation of section 288, subdivision (a) during the commission of a burglary; it rejected the section 667.71, subdivision (d)(4) enhancement that defendant committed the burglary with the intent to violate section 288, subdivision (a).
Court affirm the judgment. Because the abstract of judgment reflects an unauthorized sentence, Court remand for resentencing to permit the court to pronounce sentence on the section 667, subdivision (a) enhancement.