CA Unpub Decisions

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.

Appellant, pled no contest in case No. 05CM4504 to vehicle theft (Veh. Code, 10851, subd. (a)) and admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, 667, subds.(b)-(i)). In case No. 05CM4598, Sotello pled no contest to possession of stolen property (Pen. Code, 496, subd. (a)) and admitted allegations that he had a prior conviction within the meaning of the three strikes law. On appeal, Sotello contends the court: 1) violated the terms of his plea bargain; 2) erred in denying him counsel and a hearing with respect to his motion to withdraw his plea; and 3) committed Blakely error. Court affirm.

On appeal from a judgment of conviction of three felonies and one misdemeanor, Frank Enrico Perry argues that allowing the prosecutor to impeach him with his firearm prior was an abuse of discretion. The Attorney General argues the contrary and requests remand for the court to impose a sentence on the misdemeanor. Perry opposes the Attorney Generals request. Court affirm the judgment.

On November 15, 2005, a single-count criminal complaint was filed charging appellant, Frank Joseph Cheever, with continuous sexual abuse of a child under the age of 14 (Pen. Code, 288.5, subd. (a)). On March 15, 2006,[1]pursuant to a plea agreement, appellant pled no contest to the charged offense. On April 13, after determining that appellant had expressed the wish to withdraw his plea, the court, without relieving appellants appointed counsel, appointed a second attorney for the purpose of determining whether grounds existed for the withdrawal of the plea. On April 25, that attorney reported to the court he had determined no grounds existed for appellant to withdraw his plea. On May 6, the court sentenced appellant to six years in prison.
The judgment is reversed and the cause remanded to the superior court to permit appellant, within 30 days after the remittitur is filed in the trial court, to make a motion to withdraw his plea of no contest in a manner consistent with the views expressed in this opinion. If the superior court grants such a motion, the superior court shall reinstate the original charge, if the prosecution so moves, and proceed to trial or make other appropriate dispositions. If no such motion to withdraw the no contest plea is filed by appellant within the time limit set forth above, or if the motion to withdraw appellants plea is denied, the superior court is directed to reinstate the original judgment.

Daisy Smith appeals from the order confirming an arbitration award in favor of Terry Venturini and the resulting judgment. She argues Court must reverse because she did not consent to be bound by the contract that contained the arbitration agreement. Court disagree and affirm the judgment.

Appellant Lionel Ricky Ray Ortiz was found guilty after a jury trial of second degree robbery (Pen. Code, 211 & 212.5, subd. (c), count one), receiving a stolen check (Pen. Code, 496, subd. (a), count two), and second degree burglary (Pen. Code, 460, subd. (b), count three).[1] On June 8, 2006, the trial court sentenced appellant to the upper prison term of five years on count one. The court imposed the upper term of three years on count two but stayed sentence pursuant to section 654 and sentenced appellant to a concurrent midterm of two years on count three. Appellants total prison term is five years. The court imposed a restitution fine and granted appellant 133 days of custody credits.

On appeal, appellant contends, and respondent concedes, that appellants conviction for receiving stolen property on count two was based on the same facts as his robbery conviction on count one and his conviction on count two must be reversed. Appellant further contends the trial court violated his right to a jury trial when it relied on aggravating factors to impose the upper term sentence. (Cunningham v. California (2007)549 U.S. __ [127 S.Ct. 856] (Cunningham).) Court disagree and affirm.

The court readjudged appellant, T. S., a ward of the court (Welf. & Inst. Code, 602)[1]after he admitted allegations charging him with attempted robbery (Pen. Code, 664/211) and violation of probation ( 777). On July 12, 2006, the court set T. S.s maximum term of confinement at 5 years 10 months and committed him to the California Department of Corrections and Rehabilitation Division of Juvenile Justice. (DJJ.)
On appeal, T.S. contends: 1) the court abused its discretion when it denied his motion to withdraw plea; and 2) the court misunderstood its discretion in setting his maximum term of confinement. Court affirm.

This is an appeal from judgment after a jury found defendant Ricardo Ramos guilty of one count of arson of property (Pen. Code, 451, subd. (d)). Defendant contends the court abused its discretion in imposing the upper term of three years for the crime. He also contends the court violated his Sixth and Fourteenth Amendment rights in basing the sentence on facts not admitted or found true by the jury. (See Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856].) Court affirm the judgment.

On November 4, 1997, appellant, Prem Prakash Chandra, Jr., and another man entered the victims house in Modesto asking for a man who did not live there. While the second man ransacked the victims house, Chandra, who was armed with a handgun, took her to a second house on the property, where he raped her after making her orally copulate him. When the victims boyfriend arrived, the two men physically assaulted him before fleeing. Following independent review of the record, we find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

At the parties request, Court deny the instant writ petition as moot because the parties have effectuated a settlement. This court issued an alternative writ to determine whether a conservator for a severely brain damaged woman, who was unable to speak or communicate, could initiate and prosecute proceedings to dissolve her marriage. Michael J., husband, opposed the dissolution. We initially issued a published opinion holding that the conservator, real party in interest Linda Rogers, did not have this power, but suggested that she pursue the alternate remedy of legal separation. Conservator successfully petitioned for rehearing, pointing out that husband could thwart the alternate remedy by refusing to consent to legal separation. The petition is denied as moot.

Thai Bao Tran appeals from a judgment after a jury convicted him of two counts of first degree murder and found true he personally used a firearm during the commission of both counts. Tran argues the trial court erroneously admitted evidence, the district attorney committed misconduct, the court erroneously instructed the jury, and there was cumulative error. Although some of Trans claims have merit, Court conclude he was not prejudiced, and Court affirm the judgment.

Victor Hugo Salgado appeals to us following retrial on the same set of charges for which he was convicted originally in 2001. Court reversed the judgment for that conviction in the unpublished opinion, People v. Salgado, numbered G028368 and filed in June 2003. In the judgment following retrial, Salgado received a determinate term of 23 years plus an indeterminate term of 40 years to life.
On appeal from the retrial, Salgado contends our unpublished opinion held his statements to the police were involuntarily given, and thus, their exclusion was binding on any retrial as law of the case. In the alternative, any statements he made subsequent to the interrogating officers use of the inadmissible lie detector test were involuntary, and the retrial court erroneously failed to suppress them. However, we want to emphasize that the retrial court properly deleted all mention of the lie detector test before admitting Salgados incriminatory statements, and thoroughly edited those statements, redacting all language unduly prejudicial or irrelevant.
Additionally, Salgado contends that Roberto Gonzalez, a fellow gang member who testified for the prosecution, was an accomplice as a matter of law for which an instruction to that effect was required to be given sua sponte. Court affirm.

A jury convicted Marlon Jaime Castillo of three counts of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b); all statutory references are to this code unless noted) and possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). Castillo challenges the sufficiency of the evidence to support the verdict and argues he was entitled to an instruction on brandishing a firearm ( 417, subd. (a)(2)), as a lesser included offense to assault with a semiautomatic firearm. He also contends the trial courts comments during defense counsels cross-examination of key prosecution witnesses constituted misconduct. Court agree with the latter contention and therefore reverse the judgment.

The juvenile court in 1998 found John Gene Simon had committed a sex offense which subjected him to the registration requirements for sex offenders under Penal Code section 290 (all statutory references are to this code unless otherwise noted). In June 2005, Simon pleaded guilty to four counts of auto burglary. The trial court granted Simon probation after Simon agreed to follow certain terms and conditions, including a six-month jail term and a promise to violate no law. The trial court found Simon violated his probation when he failed to register as a sex offender after his release from custody on the six-month jail term for the auto burglaries.
Simon appeals the trial courts finding he violated probation, arguing section 290 is unconstitutionally vague as applied to him. He also challenges the sufficiency of the evidence to support the courts finding he willfully failed to register after his release from custody. Even if sufficient evidence supports the courts order, Simon contends the court abused its discretion in revoking probation. For the reasons stated below, Court affirm.