CA Unpub Decisions

Donald Wayne Grinstead appeals a judgment following his negotiated plea of no contest to voluntary manslaughter under Penal Code section 192, subdivision (a).[1]

The prosecution initially filed an information charging appellant with a single count of murder with malice aforethought. ( 187, subd. (a).) Appellant was held to answer that information after a preliminary hearing on May 26, 2006.
The evidence at the preliminary hearing showed that on the afternoon of July 4, 2005, appellant accompanied his girlfriend to her friends home to pick up the girlfriends child. At first, appellant waited in the car while the girlfriend went into the house. Darryn, the friends brother and victim, lived with his sister and was at home. Court have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; People v. Wende (1979) 25 Cal.3d 436, 441; People v. Kelly (2006) 40 Cal.4th 106, 123-124.) The judgment is affirmed.

Plaintiff and appellant Peter Neise (plaintiff) appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrers of defendant Empire West Foam Corporation (defendant) to plaintiffs first amended complaint. Court affirm.

Appellants Raymond S., Sr. (Raymond) and Celia M. (Celia) (collectively, the parents) appeal from orders denying Celias petition under Welfare and Institutions Code section 388 and terminating their parental rights to their children, Raymond S., Jr. (Raymond Jr.) (born in 2002), Jesse S. (Jesse) (born in 2003), and Angel S. (Angel) (born in 2004) (collectively, the children), under section 366.26. Both parents also filed writ petitions for habeas corpus related to this appeal. Celia contends that she was denied effective assistance of counsel as to both her section 388 petition and the section 366.26 hearing, and that the dependency court violated the federal Indian Child Welfare Act (ICWA) by failing to ensure proper inquiry into Celias possible Native American heritage. Raymond maintains that his counsel also did not provide him with adequate assistance and joins in Celias argument based on ICWA. Both parents writ petitions allege ineffective assistance of counsel.
Because the dependency courts ICWA inquiry in this case was insufficient, as the County Counsel concedes, we reverse the order terminating parental rights solely on that basis and remand to allow the court to conduct the proper inquiry. On all other issues, Court affirm. As to Raymond and Celias separate petitions for writs of habeas corpus, which Court consider with this appeal, Court deny both petitions.

Defendant, Arthur J. Ross, was originally convicted of: kidnapping to commit robbery (Pen. Code,[1] 209, subd. (b)(1)); second degree robbery ( 211); three counts of attempted second degree robbery ( 211, 664); and two counts of assault with a semiautomatic firearm. ( 245, subd. (b).) In an unpublished opinion (People v. Jones and Ross (March 15, 2006, B179610) [nonpub. opn.]), we reduced defendants conviction for kidnapping to commit robbery to false imprisonment by violence ( 237, subd. (a)) and remanded the matter to allow the trial court to resentence him on all counts. Thereafter, the trial court: selected count 6 (assault with a semiautomatic firearm) as the principal term; imposed the upper term of nine years; and doubled that term pursuant to section 667, subdivision (e)(1). The trial court also imposed a consecutive term as to count 3, attempted robbery. Defendant argues the trial court improperly imposed the upper term as to count 6. Court affirm with modifications.

William Dana Tartaglione appeals from an order recommitting him to the Department of Mental Health for treatment as a mentally disordered offender. (MDO; Pen. Code, 2962 et seq.) Appellant argues that the trial court erred in denying his Faretta motion (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]) after counsel waived jury trial over appellant's objection. Court affirm.

Edgar S. (father) appeals from the judgment of February 8, 2007, declaring his daughter, E.S., a dependent of the court under Welfare and Institutions Code section 300. He contends substantial evidence does not support the sexual abuse allegation sustained under section 300, subdivisions (b) and (d). He further contends that if the record does not support the allegation, the orders removing E. from his custody and requiring father to participate in sex abuse rehabilitation services should be reversed. As substantial evidence supports the findings, Court affirm the judgment.

Dwayne Glover appeals from an order recommitting him to the Department of Mental Health for treatment as a mentally disordered offender. (MDO; Pen. Code, 2962; 2966, subd. (c).) Appellant contends that the evidence does not support the finding that he represents a substantial danger of physical harm to others. Court affirm.

Defendant was convicted by a jury of four counts of assault with a firearm (Pen. Code, 245, subd. (a)(2)) and one count each of assault of a peace officer (id. at 245, subd. (d)(1)), discharge of a firearm at an occupied vehicle (id. at 246), possession of a firearm by a felon (id. at 12021, subd. (a)(1)), possession of ammunition by a person prohibited from owning or possessing a firearm (id. at 12316, subd. (b)(1)), and reckless driving while fleeing a peace officer (Veh. Code, 2800.2). He was acquitted of two other counts of discharging a firearm at an occupied vehicle but, on each count, was convicted of the lesser included offense of negligent discharge of a firearm. (Pen. Code, 246.3.) Finally, defendant was acquitted of attempted murder. (Id. at 664/187, subd. (a).)
Following discharge of the jury, the court found defendant had a prior strike (Pen. Code, 1170.12, subds. (b) and (c)), was convicted of a prior serious felony (id. at 667, subd. (a)), and served a prior prison term (id. at 667.5, subd. (b)).
Defendant was sentenced under the three strikes law to an aggregate, unstayed term in state prison of 54 years. He appeals, contending: (1) the jury was improperly admonished to conceal misconduct; (2) the conviction for assault on a peace officer is not supported by substantial evidence; (3) the jury was improperly instructed on an element of the charge of fleeing a peace officer; (4) the trial court improperly polled the jury; (5) the prior strike finding is not supported by substantial evidence; (6) imposition of the upper term on two of the offenses violated his Sixth Amendment rights; and (7) the abstract of judgment must be corrected. Court agree the abstract of judgment must be modified to reflect accurately the sentence imposed by the court but otherwise affirm the judgment.

Defendant Shanon Bell was convicted after a jury trial of first degree murder (Pen. Code, 187, subd. (a)) and two counts of possession of a firearm after conviction of a felony ( 12021, subd. (a)(1)). The jury also found true an enhancement allegation that defendant intentionally discharged a firearm causing death in committing the murder ( 12022.53, subd. (d)). He appeals from the judgment sentencing him to 50 years to life in state prison. He contends that the trial court erred in admitting evidence over his objections under Evidence Code sections 352 and 1101; that the prosecutor committed prejudicial misconduct in argument; and that his trial counsel was prejudicially ineffective in failing to object to some of the prosecutors arguments. Court affirm the judgment.

A jury found defendant Charles Edward Lee guilty of second degree murder (Pen. Code, 187)[1]and found true an allegation he used a knife as a deadly weapon in committing the offense. ( 12022, subd. (b)(1).) The trial court found defendant had a prior felony conviction for assault with a deadly weapon under section 245 that qualified both as a serious felony ( 667, subd. (a)) and as a strike. ( 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to an indeterminate term of 30 years to life, plus a determinate term of one year under section 12022, subdivision (b)(1) and five years under section 667, subdivision (a).
On appeal, defendant claims the trial court erred in ruling defendants proposed expert witness testimony regarding the victims bipolar disorder was character evidence that would open the door to rebuttal evidence regarding defendants character for violence. He asserts numerous jury instruction errors and error by the trial court in responding to jury questions. He claims prosecutorial misconduct in closing argument, ineffective assistance of his trial counsel, and cumulative error. Court affirm the judgment.

Defendant Colby Coats pleaded no contest to assault with force likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1)) and admitted a great bodily injury enhancement (id., 12022.7, subd. (a)). The trial court sentenced defendant to seven years in state prison, suspended execution of the sentence, and imposed five years of formal probation.
Pursuant to a plea agreement involving the dismissal of other pending charges, defendant subsequently admitted to violating probation with execution of the previously suspended seven-year sentence as the stipulated term. The court stayed a $200 restitution fine pending successful completion of parole, ordered $2,353.84 in victim restitution (Pen. Code, 1202.4, subd. (f)), and awarded 485 days of presentence credit. The judgment is affirmed.

On July 24, 2007, the public defender attempted to file a petition to set aside Simpson's plea under Penal Code section 1203.4. (All further statutory references are to the Penal Code unless otherwise indicated.) The public defender had been in contact with superior court for two weeks before the attempted filing and had provided the court a copy of Lewis v. Clarke (2003) 108 Cal.App.4th 563, 570 [ 1203.4, subd. (c) does not authorize court clerk to require prepayment of filing fee, and defendant cannot be compelled to apply for waiver of fee that court clerk is not authorized to collect]. The clerk nevertheless refused to accept or file the petition without advance payment of the $120 filing fee or the grant of an application to proceed in forma pauperis. Let a peremptory writ of mandate issue directing the superior court to accept for filing, without requiring prepayment payment of a filing fee or the filing of an application for fee waiver, any petition for relief under section 1203.4. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)

LaShawnda Trenell OBrien Allen pled guilty to a single count of receiving stolen property. (Pen. Code, 496, subd. (a).)[1] The plea agreement also provided that the People would dismiss the remaining 27 counts in the complaint, and Allen would serve an aggravated term of three years. After obtaining a certificate of probable cause ( 1237.5), Allen argues the judgment must be reversed because the trial court violated section 1192.5 by failing to obtain an adequate factual basis for her plea. Court conclude the trial court erred, but find the error harmless and therefore affirm the judgment.

Ituau Leauasoga appeals from the judgment sending him to prison for two, 25-years-to-life terms for using a gun in the first degree murder of Michael Decker. (See Pen. Code, 187, 12022.5, subd. (a), 12022.53, subd. (d).) On appeal, Leauasoga contends the trial court erroneously instructed the jury regarding one term affecting self-defense and imperfect self defense, the trial court improperly denied his request for juror identification information, and the prosecutor erred in his argument to the jury. Finally, he notes the sentencing court failed to accord him all the days of actual, presentence custody credit to which he was entitled. This last issue is correct as conceded by the Attorney General, and the judgment must be modified to correct the miscalculation. ( 1260.) In all other ways, the judgment is affirmed.