CA Unpub Decisions

A jury convicted defendant Celeste Packer of second degree robbery. (Pen. Code, 211, 212.5, subd. (c).)[1] The trial court found true allegations that defendant was a second-strike offender (id., 667, subds. (b)-(i), 1170.12) and had a prior serious felony conviction (id., 667, subd. (a)) and three prior convictions for which he had served prison terms (id., 667.5, subd. (b)). Citing section 1385, the court struck or stayed (the record is conflicting) one of the prison priors and sentenced defendant to 13 years in prison. On appeal, defendant contends that there was insufficient evidence to convict him of robbery, that the trial court abused its discretion in excluding certain testimony, that it abused its discretion in denying his mistrial motion, that the cumulative effects of its rulings on the evidentiary and mistrial issues violated his due process rights, and that it abused its discretion in denying his new trial motion. Court affirm the judgment.

On March 15, 2006, defendant Tina Latham Brown was charged with three felonies: presenting a false or fraudulent insurance claim (Pen. Code 550, subd. (a)(1)),[1]presenting a false motor vehicle claim ( 550, subd. (a)(4)), and perjury ( 118). Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) The judgment is affirmed.

Following a contested jurisdictional hearing, the juvenile court sustained a petition filed under Welfare and Institutions Code section 602 alleging that the minor, John D., committed a robbery. (Pen. Code 211/212.5, subd. (c).) The court subsequently ordered a ranch commitment for the minor. On appeal, the minor challenges the sufficiency of the evidence to support the juvenile courts finding that he committed a robbery. Specifically, he argues there was no evidence of force or fear. For reasons explained below, Court reject the minors challenge. Court therefore affirm the courts dispositional order.

Based on a traffic accident in which defendant Lamar Whatley caused the death of one person and injuries to three others while driving intoxicated, a jury found him guilty of gross vehicular manslaughter while intoxicated (count one), driving under the influence with injury (count two), and driving with a blood-alcohol level of .08 percent or more (count three). As to counts two and three, the jury also found true that defendant injured more than one person and inflicted great bodily injury within the meaning of Vehicle Code section 23558 and Penal Code section 12022.7, respectively.
On appeal, defendant contends the courts imposition of the upper term on count one and a consecutive term on count two violated his federal constitutional right to trial by jury and proof beyond a reasonable doubt because the court relied on a fact neither found by the jury nor admitted by defendant to impose that sentence. Court reject these contentions.

Defendant Ricardo Contreras entered a straight up no contest plea to assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) in exchange for dismissal of a remaining count. The trial court sentenced defendant to the upper term of four years in prison. Defendants sole contention on appeal is that the trial courts imposition of the upper term contravenesBlakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Court affirm the judgment.

Defendant Curtis M. Scott was convicted, after a jury trial, of battery on a guard by an inmate (Pen. Code, 4501.5)[1]and attempting to prevent an officer from performing a legal duty by threat or violence ( 69).[2] The jury also found true an enhancement allegation that defendant had two prior serious or violent felony convictions. ( 667, 1192.7.) Sentenced to state prison for 50 years to life, defendant appeals. He contends the trial court erred in denying his requests to represent himself, in requiring him to wear physical restraints, in failing to properly admonish the jury concerning visible restraints, and by making disparaging remarks about him in the presence of the jury. Court affirm the judgment.

Defendant, Jose Zuniga, appeals his sentence, claiming the court erred when it imposed the upper term on the principle count and on the enhancement without submitting the aggravating facts to a jury under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We find that under the terms of his written plea agreement, defendant waived his right to raise a Cunningham claim on appeal, and even if he had not, his appeal fails pursuant to the recent California Supreme Court decision in People v. Black (2007) 41 Cal.4th 799 (Black II).
Defendant pled no contest to assault with a firearm and personal use of a firearm in the commission of a crime. In exchange for his plea, the prosecutor dismissed the special allegation that defendant committed the crime for the benefit of a street gang. The prosecution also agreed to a maximum sentence of 14 years in state prison. The judgment and sentence are affirmed.

Defendant, Jason Mori, pleaded no contest to voluntary manslaughter (Pen. Code, 192, subd. (a)) and admitted that he had personally used a firearm in the commission of the offense (Pen. Code, 12022.5, subd. (a)). Sentenced to 16 years in state prison, defendant appeals his sentence, claiming the trial court erred under the rule set forth in Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] when the court imposed the upper term on the conduct enhancement without submitting to a jury the aggravating factors upon which it relied. We find that under the terms of his written plea agreement, defendant expressly waived his right to have the aggravating factors submitted to a jury and affirm the judgment accordingly. The trial courts judgment is affirmed.

Defendant Lonnie Frederick Russell met C.H. at a store and invited her to his house to drink alcohol and consume methamphetamine. C.H. accepted the invitation. While walking to his home, defendant indicated that he wanted to have sexual intercourse with her. C.H. rebuffed him. At the house, defendant hit her, dragged her into a bedroom, and sexually assaulted her. The assaults continued, some at different times and in different places, until C.H. was able to escape and report the attacks. When officers went to defendants house to arrest him, defendant struggled violently with four officers, punching one of them in the leg, kicking and punching him in the midsection, and hitting him in the head.
A jury found defendant guilty of two counts of forcible oral copulation, two counts of forcible rape, one count of assault, and three counts of resisting an officer by the use of force or violence. He was sentenced to an aggregate term of 42 years and 4 months in state prison.
On appeal, defendant contends that the trial court erred in sentencing him to the upper term on counts two through six based upon facts not submitted to the jury, and in imposing consecutive sentences on counts three through five. Court affirm the judgment.

Defendant Rickey Paul Murray appeals the restitution and parole revocation fines imposed by the trial court as a result of his probation violation. Finding only a clerical error in the abstract of judgment, Court order the abstract to be amended and otherwise affirm the judgment.

In February 2004, a Paradise police officer saw defendant Paul Daniels, whom he knew from prior contacts, standing next to a car with an open trunk. When defendant saw the officer, he immediately closed the trunk and then identified himself with a false name. Defendant consented to a search of the car. In the trunk were two plastic bags containing pseudoephedrine tablets. Nine empty cartons of pseudoephedrine were recovered from a nearby trash can. Defendant claimed he was transporting the tablets to an individual who manufactured methamphetamine.
Court appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.

Defendant, Victor Adam Petkus, appeals his sentence, claiming the court erred when it imposed the upper term on the principal count without submitting the aggravating facts to a jury under Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Despite defense counsels argument at sentencing that the aggravating factors must be submitted to a jury, we find that under the terms of his written plea agreement, defendant waived his right to raise a Cunningham claim on appeal and even if he had not, his appeal fails pursuant to the recent California Supreme Court decision in People v. Black (2007) 41 Cal.4th 799 (Black II).
Defendant pled no contest to violation of Health and Safety Code section 11358 (cultivating marijuana), and admitted one prior prison term pursuant to Penal Code section 667.5, subdivision (b). In exchange for defendants plea, the prosecutor dismissed a strike and agreed to a maximum sentence of four years in state prison.
The judgment and sentence are affirmed.

Joseph Codinha, Jr., appeals from a judgment convicting him of indecent exposure with a prior conviction for lewd act on a child. (Pen. Code, 314, 288, subd. (a).) He contends the trial court (1) erred in admitting uncharged sexual offense evidence, and (2) violated his jury trial rights under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) by imposing an upper term sentence. Court reject his arguments and affirm the judgment.

Jonathan Loucks and Jeremiah Loucks appeal the granting of a summary judgment in favor of Eric Jacobs on their lawsuit for malicious prosecution. They contend the court erred in finding they had not raised triable issues of fact as to whether Eric conspired or aided and abetted his father, Harvey Barry Jacobs (Barry), in filing the underlying prior malicious prosecution suit against the Louckses. Court affirm the judgment.