CA Unpub Decisions

In the course of investigating the possibility that utility pole ground wires were being stolen and then sold to a recycling center in Needles, the San Bernardino County Sheriffs Department contacted the recycling center and learned that the center had received suspicious wire scrap metal from certain individuals whom employees were able to describe. The following day, defendant and his coparticipant were contacted at the same recycling center and questioned. Defendant insisted that he had obtained the wire off downed poles left in the desert.
Defendant was arrested and charged with grand theft of personal property (Pen. Code, 487, subd. (a)) and receiving stolen property (Pen. Code, 496, subd. (a)). Subsequently, defendant, represented by counsel, pleaded no contest to receiving stolen property (Pen. Code, 496, subd. (a)) in exchange for a maximum prison lid of no more than two years in state prison. Following a sentencing hearing, defendant was sentenced to two years in state prison.
Defendant appealed from matters occurring after the plea or based on the sentence, failed to obtain a certificate of probable cause, 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 defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant makes arguments related to four purported arguable issues: (1) failure to see the judge in a timely manner; (2) his innocence, (3) the pressure he felt by the officer in charge in pleading guilty, and (4) his unfair sentence. Court have reviewed the entire record and the contentions both of counsel and defendant, and Court have found no arguable issues.

The court readjudged appellant, Emilio A., a ward of the court (Welf. & Inst., 602) after Emilio admitted allegations charging him with vehicle theft (Veh. Code, 10851, subd. (a)). On appeal, Emilio contends: 1) the probation department prepared an inadequate social study report and 2) the court abused its discretion when it committed him to the Department of Corrections and Rehabilitation, Juvenile Justice (DJJ). Court affirm.

A Kern County jury found Eduardo Gutierrez (Appellant) guilty of two counts of willful, deliberate, and premeditated attempted murder (Pen. Code, 187, subd. (a), 664) with a single enhancement for using a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)). The trial court sentenced Appellant to two consecutive life sentences with the possibility of parole for the attempted murders plus 25 years to life for the firearm enhancement. Appellant contends the trial court abused its discretion by denying his motions for new counsel and in imposing consecutive life sentences. Court affirm.

By information filed September 6, 2006, it was alleged appellant committed attempted second degree robbery (Pen. Code, 212.5, subd. (c), 664)[1] and that he had suffered a prior felony conviction that qualified as a strike[2]and as a prior serious felony conviction ( 667, subd. (a)), and that he had served four separate prison terms for prior felony convictions ( 667.5, subd. (b).) 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. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant himself, in response to this courts invitation to supplemental briefing, has submitted a brief in which he argues, as best Court can determine, that (1) he was denied his constitutional right to the effective assistance of counsel, and (2) his plea was neither knowing, voluntary nor intelligent. Court affirm.

The court readjudged appellant, Manuel B., a ward of the court (Welf. & Inst. Code, 602) after Manuel admitted allegations charging him with second degree robbery (count 1/Pen. Code, 212.5, subd. (c)), a gang enhancement (Pen. Code, 186.22, subd. b)(1)) in that count, and violating his probation (count 8/ 777). On December 8, 2006, the court committed Manuel to the Department of Corrections and Rehabilitation, Juvenile Justice (DJJ) for a maximum term of confinement of nine years four months. On appeal, Manuel contends the court abused its discretion when it committed him to the DJJ. Court affirm.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450 to 8.452) to vacate the dispositional orders of the juvenile court denying reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his alleged daughter, R. Court deny the petition.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450 to 8.452) to vacate the dispositional orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter R. Court deny the petition.

Appellant filed a timely notice of appeal. On appeal, appellant takes issue with two aspects of his sentence. First, appellant contends that the trial court violated his due process rights when it punished him for pleading not guilty and exercising his right to trial. Second, the trial court erred when it imposed a probation supervision fee as a condition of his probation. For reasons that follow, Court agree with both of appellant's contentions. Accordingly, Court reverse the judgment below.

Appellant Theresa L. appeals from an order terminating the guardianship of T. On appeal, she contends that the trial court did not follow certain procedures to ensure T.s safety and there was insufficient evidence to support the order. Court find no error and affirm.

At issue in this appeal is the accrual date of the plaintiffs causes of action against the defendant for negligence, negligent misrepresentation, and breach of contract. The plaintiff was the victim of embezzlement by an employee, whom the defendant had recruited and placed with the plaintiff. The trial court concluded that the plaintiff should have discovered the embezzlement sooner, and it therefore sustained the defendants demurrer, brought on statute of limitations grounds. The plaintiff brought this appeal from the ensuing judgment. Applying the delayed discovery rule to the plaintiffs claims of independent wrongdoing by defendant, we conclude that the trial court erred in finding the plaintiffs claims barred as a matter of law. Court therefore reverse the judgment.

Raul Ezequiel Rodriguez appeals from a judgment entered after a jury found him guilty of first degree burglary, making a criminal threat, felony vandalism, and knowingly violating a restraining order. He contends the trial court made a number of prejudicial instructional errors, and he claims the evidence is insufficient to support his conviction for knowingly violating a protective order. He also argues that, under Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham), the trial court erred by imposing the upper term on his burglary conviction. Court reverse the misdemeanor conviction for knowingly violating a restraining order. Court also reverse appellants sentence on the burglary conviction and remand for resentencing in light of Cunningham. In all other respects, Court affirm the judgment.

This appeal is taken from orders granting summary judgment in favor of 2122 Lakeshore Apartments, LP (Lakeshore), Crown Fortune Properties, Inc. (Crown Fortune), and Santino DeRose (DeRose) (collective referred to as respondents) and against Isaac Kashama Kalonji (appellant). Court affirm.

The juvenile court sustained allegations of a Welfare and Institutions Code section 602 petition alleging the juvenile committed grand theft person and attempted second degree robbery. The juvenile appealed from the courts order of wardship, claiming the evidence was insufficient to support a finding of either offense. He also claimed a probation condition ordering him to stay away from areas where users congregate was unconstitutionally vague and overbroad. The juvenile further contended the court erred in failing to declare on the record whether the grand theft person wobbler offense would be a misdemeanor or felony for an adult convicted of the same offense. Finally, the juvenile argued the maximum term of commitment set by the court should be stricken as both erroneous and unnecessary where the disposition the court ordered was home on probation.
In Court's initial decision Court concluded the evidence did not support a finding the juvenile took the property from the person as is required for the offense of grand theft person. Court thus reduced the offense to misdemeanor petty theft, a lesser included offense of grand theft person. Court also modified the courts order with respect to the challenged probation condition and affirmed the courts order in all other respects. The Supreme Court granted the Peoples petition for review. In In re Jesus O. the Supreme Court concluded the evidence of the juveniles intent to steal, plus the later taking of property which had been on the victims person, was, in combination, sufficient to sustain the grand theft person offense. Accordingly, the Supreme Court reversed and remanded the matter to this court for further proceedings consistent with its opinion.
On remand the parties filed letter briefs addressing omitted and other issues. Court now affirm the juvenile courts findings sustaining the allegations of the petition.

In a jury trial, Steven Trigger Gallegos (Gallegos) was convicted of kidnapping for robbery (Pen. Code, 209, subd. (b)(1); count 1); kidnapping during carjacking ( 209.5, subd. (a); count 2); two counts of second degree robbery ( 211; counts 3 & 6); carjacking ( 215, subd. (a); count 4); and attempted murder ( 667/187, subd. (a); count 5). With respect to counts 1 through 5, the jury found that Gallegos had personally inflicted great bodily injury and had used a deadly or dangerous weapon, a knife. ( 12022.7, subd. (a), 12022, subd. (b)(1).) In the same jury trial, Gallegos and Charles Casper Cepeda (Cepeda) were each convicted of two counts of first degree murder ( 187, subd. (a); counts 7 & 8), and simple kidnapping ( 207, subd. (a); count 9). For the murder of Carmen Cepeda in count 7, the jury found special circumstances of financial gain and that the perpetrators had committed more than one offense of murder. ( 190.2, subds. (a)(1) & (a)(3).) For the murder of Steven Kimzey in count 8, the jury found special circumstances that the victim was a witness who was killed to prevent his testimony and that the perpetrators had committed more than one offense of murder. ( 190.2, subds. (a)(3) & (a)(10).) With respect to the murder and the simple kidnapping convictions, the jury found that Gallegos had personally discharged a firearm proximately causing death ( 12022.53, subd. (d)), and as to Cepeda, that a principal was armed with a firearm ( 12022, subd. (a)(1)). In a court trial, the trial court made findings that Gallegos had a prior conviction that qualified him for sentencing pursuant to the Three Strikes law and that he had served a separate prison term. ( 667, subds. (b)(i), 1170.12, 667.5, subd. (b).) For Gallegos, at sentencing, the trial court imposed a determinate term of 22 years (a doubled determinate term of 11 years), plus two consecutive terms of life without the possibility of parole enhanced by terms of 25 years to life for the use of a firearm proximately causing death, plus a consecutive term of 14 years to life (a doubled life term).
For Cepeda, the trial court imposed two consecutive terms of life without the possibility of parole, with a one year term applied to each term for the two enhancements of a principal armed with a firearm. On appeal from the judgments, the defendants raise the following claims: (1) Cepeda contends that the trial court committed Marsden error when it failed to grant Cepedas several motions for the substitution of counsel (People v.Marsden (1970) 2 Cal.3d 118 (Marsden)); (2) Cepeda and Gallegos make different contentions as to the trial courts failure to sever counts 1 through 6 (the Jimenez and Manukyan crimes) from counts 7 through 12 (the murders); (3) Cepeda contends that he was denied his Sixth Amendment right to a speedy trial; (4) Cepeda contends that he was denied due process as the trial court failed to inquire into his mental competency, and trial counsel was constitutionally ineffective as he failed to investigate Cepedas mental competency; (5) Gallegos contends that he was denied due process and a fair trial by the admission of certain portions of the reporters transcript of E.A.s plea bargain; (6) Gallegos contends that the use of gang evidence denied him due process and a fair trial; and (8) Gallegos contends that the cumulative effect of the errors requires a reversal. Court find no merit in the contentions and affirm the judgments.