CA Unpub Decisions

Defendant Michael Sterling Day was sentenced to state prison after pleading guilty to two counts of possessing methamphetamine for sale. For each conviction, the trial court imposed a Health and Safety Code section 11372.5 “criminal laboratory analysis fee” as well as penalty assessments. We affirmed defendant’s convictions in a separate appeal after defendant’s appellate counsel filed a brief citing People v. Wende (1979) 25 Cal.3d 436 (Wende). (People v. Day (Dec. 20, 2016, H043232).) Defendant filed the instant appeal after the trial court denied his postjudgment request to strike the penalty assessments imposed on the Health and Safety Code section 11372.5 levy. (Pen. Code, § 1237.2.) Defendant argues that the $50 levy imposed under Health and Safety Code section 11372.5 is a fee rather than a fine or penalty, meaning that it is not subject to penalty assessments. For the reasons stated here, we will affirm the judgment.

As part of a judgment of conviction for second degree robbery and grand theft, defendant was ordered to pay a $129.75 Criminal Justice Administration fee (colloquially referred to as a booking fee) to the City of San Jose. He challenges that fee on appeal, arguing that it was imposed based on an insufficient record. For the reasons explained here, we will affirm the judgment.

Appellant Rosanne Mayhew, M.D., dba For Women By Women, a California Corporation, (Mayhew) appeals from a judgment confirming an arbitration award to respondents Blum Plaza, LLC and Sheldon R. Blum, Trustee of the 1998 Sheldon R. Blum Family Trust. Finding no prejudicial error by the arbitrator, we will affirm.

Defendant pleaded no contest to possession of child pornography. (Pen. Code, § 311.11, subd. (a).) He was placed on formal probation for three years and required to register as a sex offender. The trial court imposed probation conditions under Penal Code section 1203.067, which was enacted as part of the Chelsea King Child Predator Prevention Act of 2010 (Stats. 2010, ch. 219, § 1 et seq.) and mandates certain probation conditions in sex offender cases. Defendant was ordered to “enter and participate in and complete an approved sex offender management program,” to “participate in polygraphs exams [as] part of the sex offender management program,” and to “waive any psychotherapist-patient privilege only to the extent necessary to enable communication between the sex offender management professional and the probation officer[.]” Defendant challenges as overbroad the probation conditions ordering him to participate in polygraph examinations and to waive the psychotherap

A felony complaint charged defendant Kanakis Fragiadakis with one count of possession of child pornography (Pen. Code, § 311.11, subd. (a)). Defendant pleaded no contest to that charge. The trial court placed defendant on probation subject to various terms and conditions.

A man sued his ex-wife and her parents for slander because they told nine named individuals and other unnamed people that the man was a “crook,” a “thief,” a “money launderer,” and was someone who associated with and was at risk of being killed by criminals; they also reported him to the Department of Homeland Security. The ex-wife and parents filed a motion to strike the slander lawsuit under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court granted the motion as to the reports allegedly made to the Department of Homeland Security, but otherwise denied the motion. The ex-wife and her parents appeal. We independently conclude there was no error, and affirm.

Petitioner Jesus L., in propria persona, seeks an extraordinary writ from the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing as to his now one-year-old daughter, Ana L. Jesus contends his court appointed counsel was ineffective. We deny the petition.

Petitioners Roberto G., Sr. (father) and G.C. (mother) seek an extraordinary writ from the juvenile court’s orders issued at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)(1)) terminating their reunification services and setting a section 366.26 hearing as to their now 11-year-old son Robert G., Jr. (Robert) and 21 month-old son, M.G. Petitioners contend there is insufficient evidence to support the juvenile court’s findings the Stanislaus County Community Services Agency (agency) provided them reasonable reunification services and there was not a substantial probability the children could be returned to their custody by the 18-month review hearing. We deny the petition.

A jury convicted defendant Rachel Nickole James of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), making criminal threats (§ 422; count 2), and petty theft (§ 488; count 4), and the trial court found true the special allegation, as to counts 1 and 2, that defendant had served a prior prison term (§ 667.5, subd. (b)). On appeal, defendant contends the court violated section 654’s proscription against multiple punishment when it sentenced her to consecutive terms for counts 1 and 2. We find merit to this contention and modify the judgment accordingly.

Defendant Jason Christopher Pacheco, Jr., was convicted by no contest plea of assault with a deadly weapon with personal infliction of great bodily injury after he beat a romantic rival with a baseball bat. On appeal, he contends the trial court abused its discretion in denying him probation. We affirm.

Defendant Floyd Ernest Brewer, Jr., contends on appeal that the trial court imposed an unauthorized fine and failed to itemize and provide statutory authority for each fine it imposed. The People concede and we agree. Accordingly, we remand to the trial court with directions to properly itemize and authorize the fines on the abstract of judgment and minute order.

Appellant Tina Marie Roberto appeals from the trial court’s denial of her motion pursuant to Penal Code section 1170.18 for resentencing of her second degree burglary in case No. F07909207. On appeal, Roberto contends the court erred when it denied her motion because her second degree burglary conviction constituted shoplifting under section 459.5. We reverse and remand for further proceedings.

Appellant Isaac Jonathan Sanders stands convicted of multiple offenses, including two counts of carjacking, one count of assault with a semiautomatic weapon, and one count of evading a peace officer. He contends his convictions must be reversed because the prosecutor in rebuttal argument made one misstatement of the evidence and defense counsel failed to object, thus rendering ineffective assistance of counsel. We affirm.

Appellant Robert Dale Crabb appeals a 2015 order from the superior court that resentenced his prior conviction for petty theft (Pen. Code, § 666) to a misdemeanor under Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47) (§ 1170.18). The parties agree, as do we, that the superior court improperly resentenced appellant on this conviction. Apparently unbeknownst to the superior court, this court had already reversed this same conviction on appeal in 1997. (People v. Crabb (Aug. 5, 1997, F024598) [nonpub. opn.] (Crabb).)
Appellant argues he is entitled to a new resentencing hearing. We disagree. He does not qualify for resentencing under Proposition 47. We reverse the superior court’s order and set aside the resentencing proceeding. We otherwise affirm appellant’s judgment.