CA Unpub Decisions

Defendant was charged by information with three counts of lewd and lascivious acts on a child under the age of 14 (Pen. Code, 288, subd. (a)) based on incidents that occurred on two successive nights in 2000 and a third incident that occurred in 2004. The victim was the son of defendants sister, with whom defendant was residing on the occasions in question.
Concerns arose about defendants mental state during his jury trial. The jury ultimately convicted defendant on all three counts. Sentenced to 10 years, defendant appeals, arguing: (1) the court erred in delaying a competency hearing until the end of the trial, (2) the court abused its discretion in having defendant removed from the courtroom, (3) the court erred in permitting an amendment of the information, and (4) instructional error. Court affirm the judgment.

A jury convicted defendant Carl Howard Mohr of threatening the lives of, and threatening serious bodily harm to, Nevada County Superior Court Judges Carl Bryan and Ersel Edwards, and Deputy District Attorney Oliver Pong. (Pen. Code, 76, subd. (a).) A count of sending a letter with intent to extort ( 523) was dismissed following jury deadlock and declaration of a mistrial. Imposition of sentence was suspended and defendant was placed on probation for three years on conditions including 451 days of incarceration with credit for time served.
On appeal, defendant contends (1) his conviction is not supported by sufficient evidence of threats, and (2) a defense request for judicial notice of Code of Civil Procedure provisions on the disqualification of judges was erroneously denied. Court affirm the judgment.

On February 8, 2006, the Yuba County District Attorney filed a second amended complaint (later deemed an information) charging defendant Johnny Lee Ruggles in count I with second degree burglary (Pen. Code, 459; undesignated section references are to the Penal Code), in count II with attempting to obtain a controlled substance by fraud (Health & Saf. Code, 11173, subd. (a)), and in count III with being a person charged with commission of a felony who willfully failed to appear in court when required after having been released from custody on his own recognizance. ( 1320, subd. (b).) It was further alleged as to counts I and II that defendant had been previously convicted of a felony, possession of a controlled substance for sale (Health & Saf. Code, 11359), and that he served a separate prison term for said conviction. ( 667.5, subd. (b).) Court conclude: (1) substantial evidence supports defendants conviction for willful failure to appear while released on his own recognizance; (2) the trial court erroneously gave general intent instructions in connection with the charge of willful failure to appear while released on defendants own recognizance (count III), and the error cannot be deemed harmless; and (3) the trial court properly imposed the upper term sentence on count I.
Court therefore reverse defendants conviction on count III and remand to the trial court for a new trial on that count. Court otherwise affirm the judgment.

A jury convicted defendant Marlon Lavell Johnson of first degree burglary, two counts of first degree robbery in concert, and three counts of assault with a firearm, while sustaining an allegation that a principal was armed with a firearm. Finding that defendant had two prior serious felony convictions within the meaning of the three strikes law and had served a prior prison term, the trial court sentenced him to 60 years to life in state prison.
On appeal, defendant contends the trial court erred in not instructing on the crime of accessory after the fact (Pen. Code, 32) as an alternative to aider and abettor liability; the evidence does not support one of his convictions for assault with a firearm; and the court failed to exercise its discretion to strike one of the prior convictions for purposes of sentencing. Court affirm the judgment.

Defendant pled no contest to manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a)), being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, 11370.1, subd. (a)), and admitted a prior conviction for residential burglary. The trial court sentenced defendant to a stipulated term of nine years and four months in prison.
On appeal, defendant contends the trial court erred in denying his suppression motion. Court reject the contention and affirm.

Defendant Ahmad Rakeem Ali Hodges pled no contest to battery on a bus driver in case No. CM024516 and possessing a controlled substance (MDMA) for sale in case No. CM025047.
On appeal, he claims (1) both convictions must be reversed because the trial court failed to advise him of his right to withdraw his plea when the court chose not to honor the terms of his battery plea agreement (Pen. Code, 1192.5; further section references are to the Penal Code unless otherwise specified), and (2) the abstract of judgment incorrectly reflects that the court imposed a drug program fee. Court affirm the judgment and direct the trial court to correct the abstract.

Nicholas P., a minor, admitted maliciously removing a wireless communication device with the intent to prevent the use of the device for summoning assistance (Pen. Code, 591.5) and was placed on six months informal probation in the home of his guardian pursuant to Welfare and Institutions Code section 725, subdivision (a).
Conditions of probation imposed by the court included his being subject to testing for the presence of drugs, submitting to search and seizure at any time without a warrant or consent, and not being present in a place where illegal drugs are present.
On appeal, the minor contends (1) the juvenile court abused its discretion when it imposed, over his objection, the drug testing and search and seizure conditions because they were unrelated to the offense he admitted, and (2) the prohibition against being in a location where illegal drugs are present was constitutionally vague in that it failed to include the requirement that he know of the presence of the illegal drugs. Court reject the minors first contention, but agree with him as to the second. Accordingly, Court amend the latter probation condition to include a knowledge requirement.

While executing a search warrant for the purpose of arresting Virgil Randolph James, law enforcement officers searched a travel trailer and a residence and discovered a clandestine methamphetamine lab, several firearms, and 77 marijuana plants. Defendant John Russell Etherton was the registered owner of the travel trailer, and the owner of the residence stated that approximately 28 of the marijuana plants belonged to John. Officers then sought and obtained a second search warrant for, among other things, the same travel trailer and residence for the purpose of seizing certain property and arresting defendant.
Defendant was charged with manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a); count 1), sale or transportation of methamphetamine (id. 11379, subd. (a); count 2), possession of marijuana for sale (id. 11359; count 3), cultivating marijuana (id. 11358; count 4), possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1); count 5), illegal possession of ammunition ( 12316, subd. (b)(1); count 6), and driving without a license, a misdemeanor (Veh. Code, 12500, subd. (a); count 7). With respect to counts 1 and 2, it was alleged that defendant had a prior drug conviction. (Health & Saf. Code, 11370.2, subds. (b), (c).) With respect to count 1 only, it was alleged that defendant was personally armed with a firearm in the commission of that offense. ( 12022, subd. (c).) With respect to counts 3 and 4, it was alleged that a principal in the commission of those offenses was armed with a firearm. ( 12022, subd. (a)(1).)
However, the record reflects that the remaining counts and enhancement allegations were not dismissed as required by the plea agreement. Court direct the trial court to do so. Although the plea agreement does not expressly provide for their dismissal, Court conclude that such was an implicit term of the plea agreement since defendant agreed to imposition of the upper term for manufacturing methamphetamine.
The judgment is affirmed. The trial court is directed to dismiss counts 2 to 7 and the remaining enhancement allegations. (Health & Saf. Code, 11370.2, subd. (c); 12022, subds. (a)(1), (c).)

Defendant appeals his prison sentence following a conviction for possession for sale of methamphetamine (Health & Saf. Code, 11378) and residential burglary (Pen. Code, 459). Defendant contends his sentence should be modified because the trial courts sentence was unauthorized. The trial court imposed three one year prison term enhancements under section 667.5, subdivision (b), as well as two five year prior serious felony conviction enhancements under section 667, subdivision (a)(1). Two of the prison term enhancements were based on the same prior convictions as the serious felony enhancements. Defendant contends the trial court should have stricken the two one year enhancements that were based on the same prior convictions as the two five year enhancements. The People concede the error. Court agree and order these two duplicative one year enhancements stricken from defendants prison sentence.

Defendant, Byron Oneal West, shot his former girlfriend in the chest during an argument.
Pursuant to a negotiated settlement, defendant pled no contest to assault with a semiautomatic firearm (Pen. Code, 245, subd. (b)) and admitted a prior strike conviction (Pen. Code, 667, subds. (b)-(i)), 1170.12), use of a firearm (Pen. Code, 12022.5, subds. (a)(1), (d)), and infliction of great bodily injury (Pen. Code, 12022.7, subd. (e)). Defendants plea and admissions were given in exchange for an agreed upon sentence of 20 years and the dismissal of other counts. The court sentenced defendant to 20 years in prison plus restitution fines of $200 in accordance with Penal Code sections 1202.4 and 1202.45. 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.) 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. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

After correctional officers noticed that defendant Lawrence Brown, an inmate at Folsom State Prison, was not in his assigned bed at 2:35 a.m. on August 10, 2004, they discovered a freshly dug hole under a section of the perimeter fence. Later, defendant was found in his bed, with dried dirt and grass on his face. His pants and jacket were covered with dirt and grass stains. Defendant entered a negotiated plea of no contest to escape and admitted having a prior serious or violent felony conviction within the meaning of the three strikes law. He was sentenced to a stipulated term of 32 months in prison and was ordered to pay a $200 restitution fine, a $20 court security fee, and a $200 restitution fine stayed unless parole is revoked. Defendant appealed.
Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

R. N. and L. C., father and mother of the minor C. N. (collectively appellants), appeal from the juvenile courts order terminating their parental rights. (Welf. & Inst. Code, 366.26.) Appellants claim the evidence does not support the juvenile courts finding that the minor was adoptable, and the Sutter County Welfare and Social Services Division (Human Services) failed to adequately comply with the notice provisions of the Indian Child Welfare Act (ICWA).[2](25 U.S.C. 1901 et seq.) Agreeing only with the latter contention, Court reverse the juvenile courts order and remand for compliance with the ICWA notice provisions.

Defendant Juan Antonio Ramos was charged with being a felon in possession of a firearm, misdemeanor possession of drug paraphernalia, providing false identifying information to a peace officer, and being a felon in possession of ammunition. Defendant pled no contest to being a felon in possession of a firearm in exchange for dismissal of all other counts and a grant of probation with 180 days in county jail.
At the sentencing hearing, the court suspended sentence and placed defendant on formal probation for five years. The probation terms included, inter alia, that defendant not associate with known gang members and not go to places frequented by known gang members.
On appeal, defendant contends that the courts gang restriction conditions: (1) are not reasonably related to the purposes of his probation, nor are they related to his future criminality; (2) are overly vague; and (3) suffer from a constitutionally fatal overbreadth. Court conclude that the terms of the probation are reasonably related to the purposes of defendants probation, are not vague, and do not suffer from a constitutionally fatal overbreath. Therefore, Court affirm the judgment.

Defendant Cory Dean Allred pled no contest to robbery (Pen. Code, 211) and admitted personal use of a firearm (Pen. Code, 12022.53, subd. (b)) and an on bail allegation in case No. CRF061903, and pled no contest to second degree burglary (Pen. Code, 459) in case No. CRF060952. He was sentenced to the stipulated term of 14 years and eight months. The court also imposed $500 in actual restitution, a $2,800 restitution fine, $40 in court security fees, stayed a $2,800 parole revocation fine, and awarded 74 days (63 actual and 11 conduct) credit. Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.