CA Unpub Decisions

Defendant Drexel Quincy Jackson appeals from his conviction of willfully discharging a firearm in a grossly negligent manner that could result in death or injury (Pen. Code, 246.3) and associated enhancements. He contends: (1) the trial court erred in instructing the jury with CALJIC No. 2.92 that the jury should consider the witnesss level of confidence in his or her identification as a factor in assessing the accuracy of the identification; (2) during closing argument, the prosecutor impermissibly lowered the burden of proof and shifted the burden to defendant; (3) the trial court erred in excluding evidence that the police had shot defendants dog; and (4) there was insufficient evidence that defendants prior conviction was a strike offense. Court conclude the evidence was insufficient to establish that defendants prior conviction was a strike. Court find no other prejudicial errors.

Defendant Drexel Quincy Jackson appeals from his conviction of willfully discharging a firearm in a grossly negligent manner that could result in death or injury (Pen. Code, 246.3) and associated enhancements. He contends: (1) the trial court erred in instructing the jury with CALJIC No. 2.92 that the jury should consider the witnesss level of confidence in his or her identification as a factor in assessing the accuracy of the identification; (2) during closing argument, the prosecutor impermissibly lowered the burden of proof and shifted the burden to defendant; (3) the trial court erred in excluding evidence that the police had shot defendants dog; and (4) there was insufficient evidence that defendants prior conviction was a strike offense. Court conclude the evidence was insufficient to establish that defendants prior conviction was a strike. Court find no other prejudicial errors.

Following a jury trial, defendant was found guilty of robbery (Pen. Code, 211). The jury also found true that defendant had used a deadly weapon in the commission of the offense within the meaning of section 12022, subdivision (b)(1). Defendant thereafter admitted that he had suffered a prior strike conviction pursuant to sections 667, subdivisions (b) through (i), and 1170.12; in return, the prior prison term ( 667.5, subd. (b)) allegations and the gun-use enhancement were dismissed. Defendant was sentenced to a total term of 10 years in state prison: the upper term of five years, doubled to 10 years for the prior strike allegation. On appeal, defendant contends (1) his constitutional right to be present at all critical stages of the proceeding was violated when he was not present for the courts resolution of a jury note; and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term. Court reject these contentions and affirm the judgment.

A jury found Steven Leaf, defendant and appellant (hereafter defendant), guilty of evading a peace officer, in violation of Vehicle Code section 2800.2 (count 3), second degree burglary, in violation of Penal Code section 459 (count 4), assault with a deadly weapon or by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1) (counts 5 and 6), and possession of burglary tools, in violation of Penal Code section 466 (count 7). After he waived his right to a jury, defendant admitted that he had previously been convicted of three felonies for which he served separate terms in prison within the meaning of section 667.5, subdivision (b), and that he previously had been convicted of a serious or violent felony within the meaning of section 667, subdivisions (c) and (e) and section 1170.12, subdivision (c). Based on the jurys guilty verdicts and defendants admissions, the trial court sentenced defendant to serve a total term of 15 years eight months in state prison, a sentence that includes the upper term of four years on count 5.
In this appeal, defendant first contends that there was evidence presented at trial to show that he committed more than one act of possessing burglary tools, and therefore the trial court had a sua sponte duty to instruct the jury that, in order to find defendant guilty of that misdemeanor, the jury had to unanimously agree on the specific act of possession. Next, defendant contends that Court must reverse his admissions of the prior conviction allegations because the trial court did not fully advise defendant of the constitutional rights he would be waiving by his admissions, and therefore those admissions were not knowing and voluntary. Defendants third contention is that the trial court erred by having defendant admit the prior conviction allegations set out in the original information because that information was superseded by an amended information that alleged a different date for one of the prior convictions. Defendant also contends that the trial court violated his Sixth Amendment right to a jury by imposing the upper term sentence on count 5. Finally, defendant contends that the trial court violated the prohibition set out in section 654 against multiple punishment for a single criminal act by punishing defendant on count 3 for evading a peace officer and also on count 5 and count 6 for the assaults with a deadly weapon that occurred when defendant crashed into another vehicle in the course of evading the peace officer.
Court agree as Court must that defendants upper term sentence runs afoul of Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856]. Defendants other contentions lack merit. Accordingly, Court vacate defendants sentence and remand the matter to the trial court for further proceedings consistent with Cunningham v. California. The judgment is otherwise affirmed.

Defendant Jose Beleche appeals from his conviction of a felony count of penetration with a foreign object (Pen. Code,[1] 289, subd. (a)(1)) and a misdemeanor count of touching an intimate part of another for purposes of sexual arousal ( 243.4, subd. (a).) Defendant contends he was deprived of his constitutional due process rights and right to a fair trial by the trial courts (1) instructing the jury with a modified version of Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1045 that omitted the specific intent element of the crime of penetration with a foreign object; (2) admitting evidence of prior uncharged acts of domestic violence; (3) instructing the jury with CALCRIM No. 852; (4) admitting prejudicial and irrelevant evidence that defendant violated a restraining order; and (5) instructing the jury on flight after a crime. Defendant further claims the prosecutor committed misconduct and the cumulative error doctrine requires reversal. Court find that any error was harmless, and Court affirm.

A jury convicted defendant and appellant Ruben Tony Cervantez of: (1) count 1 unlawful taking or driving of a vehicle under Vehicle Code section 10851, subdivision (a); (2) count 2 receiving stolen property under Penal Code section 496d, subdivision (a); and (3) count 3 evading a police officer with willful disregard under Vehicle Code section 2800.2, subdivision (a). On appeal, defendant contends, and we agree, that the trial court erred in failing to instruct the jury that defendant could not be convicted of both taking and receiving the same vehicle. However, for the reasons set forth below, Court find that the error was harmless.

Defendant pled guilty to one count of selling methamphetamine (Health & Saf. Code, 11379, subd. (a)), and admitted four prior prison term allegations (Pen. Code, 667.5, subd. (b)). Prior to sentencing, defendant moved to withdraw her plea. The court denied the motion and sentenced defendant to a five-year prison commitment pursuant to the courts indicated sentence. On appeal, defendant contends the trial court erred in denying her motion to withdraw her guilty plea. For the reasons set forth below, Court affirm the judgment.

Pursuant to a plea agreement, defendant pleaded guilty to false imprisonment (Pen. Code, 236). In return, the remaining count for assault with a deadly weapon was dismissed, and defendant was granted three years of formal probation on various terms and conditions. On appeal, defendant contends (1) the probation condition requiring him to keep the probation officer informed of whether he owns any pets is unreasonable; and (2) the probation condition requiring him to submit to and cooperate in field interrogations infringes upon his Fifth Amendment constitutional right against self-incrimination and is unconstitutionally overbroad. Court reject these contentions and affirm the judgment.

Esther O. (Mother) appeals from the juvenile courts order terminating her parental rights to R., Reynold, and S., pursuant to Welfare and Institutions Code section 366.26.

John W., the father of four minor children, appeals the juvenile courts dispositional order which removed the children from parental custody and failed to give custody to the previously noncustodial father. Father contends that the juvenile court erred because the evidence was insufficient to support a finding of detriment under Welfare and Institutions Code section 361.2.
The juvenile court also ordered father to undergo a psychological evaluation. He argues that the evidence was insufficient to support the juvenile courts order. Finding no error, Court affirm.

Defendant and appellant Ricardo Delarosa Gamboa challenges his sentence after a contested probation revocation hearing because the trial court imposed the upper term based on facts not found by the jury. As discussed below, Court agree that the sentence violates Cunningham v. California (2007) U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). Therefore, Court remand the matter to the trial court for resentencing.

The California Land Conservation Act of 1965 (Gov. Code, 51200 et seq.), also known as the Williamson Act (hereafter Williamson Act), authorizes local governments to establish agricultural preserves, consisting of lands devoted to agricultural and other compatible uses. Once a preserve is established, the local government may enter into renewable contracts with owners of agricultural land to restrict the use of the land for at least 10 years, in exchange for favorable statutory property tax assessment standards. (Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 851-852 (Sierra Club), superseded on other grounds by statute as recognized by Friends of East Willits Valley v. County of Mendocino (2002) 101 Cal.App.4th 191, 204-205.) As a result, however, the local government loses substantial property tax revenue. In 1971, the Open-Space Subvention Act ( 16140-16146) was enacted to provide replacement revenues to the local government lost by reason of the reduced property taxes assessed on property subject to a Williamson Act contract.
The County declined to pursue any administrative remedies and instead filed the instant petition for writ of mandate against the Department (Code Civ. Proc., 1085), to compel the Department to pay the withheld subvention funds. The trial court denied the petition and found the Department had jurisdiction to withhold subvention funds and the County was obliged to exhaust its administrative remedies to challenge the Departments action. Court affirm.

A jury convicted appellant Mikhiel Jakob Leinweber of first degree murder (Pen. Code, 187). The jury also found true the allegation that Leinweber personally discharged a firearm causing death ( 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found true that Leinweber had two prior serious felony convictions pursuant to section 667, subdivision (a), two prior felony convictions pursuant to section 667, subdivision (d), and one prior prison term pursuant to section 667.5, subdivision (b). The trial court sentenced Leinweber to 111 years to life in state prison as follows: 25 years to life, tripled to 75 years because of the prior strike convictions; a consecutive 25-year term for the section 12022.53, subdivision (d) enhancement; two consecutive five-year terms for two section 667, subdivision (a) prior convictions; and a consecutive year for a section 667.5, subdivision (b) prior prison term.
Leinweber contends the prosecutor committed numerous instances of misconduct throughout the trial, and the trial court erred in refusing to give a defense-drafted instruction and in imposing a one-year enhancement. Court agree only with Leinwebers last contention, and in all other respects, affirm.

On October 5, 2005, a second amended information was filed against appellant Christopher Rivas and codefendant Daniel Vera. Appellant was charged with count I, assault by means of force likely to produce great bodily injury on Abel Martinez (Pen. Code,[1] 245, subd. (a)(1)), and count II, criminal threats on Jane Doe[2]( 422). Codefendant Vera was separately charged with count III, resisting an officer by force or violence ( 69). Appellant and codefendant Vera were both charged with count IV, active participation in a criminal street gang ( 186.22, subd. (a)).
As to count I, it was alleged appellant personally inflicted great bodily injury ( 12022.7, subd. (a)), and personally used a deadly weapon, a knife ( 12022, subd. (b)(1)). As to counts I and II, it was further alleged appellant committed the offenses for the benefit of a criminal street gang ( 186.22, subd. (b)(1)); he suffered one prior serious felony conviction ( 667, subd. (a)); and he suffered one prior strike conviction ( 667, subds. (b)-(i)). Appellant pleaded not guilty and denied the special allegations.
At the preliminary hearing, the court dismissed the aggravated assault charge as to codefendant Vera. Vera subsequently pleaded guilty to misdemeanor resisting an officer ( 148, subd. (a)(1)) as a lesser offense of count III, and was placed on probation for two years.
On October 5, 2005, appellants jury trial began on counts I, II and IV; the court had bifurcated the prior conviction allegations. The court granted appellants motion for acquittal as to the great bodily injury enhancement.
On October 6, 2005, appellant was convicted of counts I, II, and IV, and the jury found he personally used a knife in the commission of count I, and counts I and II were committed for the benefit of a criminal street gang. Appellant admitted the truth of the prior conviction allegations.
On February 10, 2006, the court sentenced appellant to an aggregate term of 14 years in state prison: as to count I, the upper term of four years, doubled to eight years as the second strike term, with consecutive terms of one year for the personal use enhancement, and five years for the gang enhancements. The court imposed concurrent second strike terms of six years for counts II and IV, with a concurrent term of five years for the gang enhancement as to count II.
On February 21, 2006, appellant filed a timely notice of appeal. The trial court is directed to prepare and serve as appropriate an amended abstract of judgment reflecting the foregoing modifications.