CA Unpub Decisions

Booker Timothy Cole petitioned for recall of sentence under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126) (Proposition 36) and The Safe Neighborhoods and Schools Act (§ 1170.18) (Proposition 47). The superior court denied Cole’s petitions, finding beyond a reasonable doubt that Cole had suffered a prior juvenile adjudication for murder in 1975 that made him ineligible for relief under both propositions. On appeal Cole contends the court erred in considering facts outside the limited record of his juvenile adjudication to determine his eligibility for relief under Proposition 36. Alternatively, he requests we remand the matter to allow him to present evidence of his eligibility at a new Proposition 47 hearing. We affirm.

The Mendocino County district attorney charged Ryan Porter Silva with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and felony vandalism (Pen. Code, § 594, subd. (b)(1)), together with enhancement allegations that he had suffered a strike prior for arson (Pen. Code, §§ 1170.12, 667) and served a prior prison term (Pen. Code, § 667.5 subd. (b)).
These charges arose out of an incident in which Rebecca Larue told police that Silva had kicked her in the stomach, hit her with a baseball bat, and then fled, only to return a short time later while she was in her trailer. When Silva returned, Larue heard the sound of breaking glass outside the trailer. She then went outside and discovered her car windows had been broken and the trailer had been damaged.
Silva pled no contest to the vandalism count with the prison prior enhancement, on stipulation that he would waive all presentence credits.

Chad Pallett failed to report for probation on felony false imprisonment and assault convictions. Probation was revoked, and Pallett was sentenced to two years in prison. Court-appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Our independent review of the record reveals no arguable issues, and we affirm.

Rare is the criminal case in which the defendant and the People agree the trial court committed error that requires reversal of a conviction. This is one. For an unexplained reason, during deliberations and over defense counsel’s objection, the trial court responded to a jury question with an instruction on a new theory of liability. The instruction was not only incomplete but also one the court had previously refused to give for lack of supporting evidence. To add insult to injury, the court then denied defense counsel’s request to address the jury on this new theory. Defendant Brianna Nikol Williams was found guilty as charged five minutes after the court gave the jury this new instruction. Reversal is required to protect defendant’s right to a fair trial.

This is the sixth appeal by appellant Norman Bartsch Herterich involving the estate of his father, decedent Hans Herbert Bartsch (Estate). We previously upheld the probate court’s determination that appellant has no claim to the Estate as a pretermitted child. We affirmed the trial court’s summary judgment order dismissing a separate civil fraud action brought by appellant against Arndt Peltner, the executor of the Estate, and Peltner’s attorney, Alice Brown Traeg. We dismissed two other appeals after concluding appellant lacked standing because he has no interest in the Estate. Our orders made clear that dismissal was required under the law of the case and that we would not revisit our prior rulings. Undeterred, appellant moved to set aside orders entered by the probate court more than a decade ago. He now appeals from the denial of his motion. We conclude, once again, that appellant does not have standing to raise this appeal and dismiss it for lack of jurisdiction.

Sharon Goldstone appeals from an order imposing sanctions and requiring reunification counseling at her cost in a proceeding for dissolution of marriage and child custody. She contends the order should be reversed because (1) this relief was requested in a responsive declaration rather than by noticed motion; (2) the sanctions are contrary to public policy, unsupported by the evidence, and imposed without adequate notice; and (3) the reunification counseling is precluded by Family Code section 3026 and was ordered without adequate findings under section 3190. She further requests that a different trial judge be assigned to her case. We will affirm the order.

Codefendants David Espinal and Donald Parker appeal judgments convicting them of murder and robbery and sentencing them to terms of life in prison without the possibility of parole (LWOP). Defendants contend the court erred in admitting testimony regarding their prior criminal activity and that the court erred by instructing the jury with CALCRIM No. 375 regarding the use of this evidence. Defendants also assert the court erred by instructing the jury on flight using CALCRIM No. 372. Espinal contends the court erred in failing to sever defendants’ trials to avoid prejudice caused by the admission of testimony regarding Parker’s prior criminal acts and in denying his request for juror identifying information in support of a potential motion for new trial.

Defendant Anna Alicia Garcia pleaded no contest to second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and admitted the allegation that she personally used a deadly and dangerous weapon, a knife, during the commission of the offense (§ 12022, subd. (b)(1)). The trial court suspended imposition of sentence, ordered defendant to serve one year in the county jail, and placed defendant on probation for three years.
On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case, but raises no issue. We notified defendant of her right to submit written argument on her own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.

Appellant Greg Murrow, the owner of a now-defunct business called Freedom Stamps, appeals from a judgment of dismissal entered against him and others after the trial court sustained a demurrer brought by PayPal, Inc. without leave to amend. As explained further below, we conclude that the trial court properly sustained the demurrer but abused its discretion in not allowing Murrow leave to amend certain causes of action. Accordingly, we reverse the judgment.

A jury convicted defendant Jose Sanchez Hernandez of felony cultivation of marijuana (Health & Saf. Code, § 11358, count 1) and misdemeanor possession of marijuana for sale (§ 11359, count 2). The jury also found that Hernandez was armed with a firearm during the commission of a felony. (Pen. Code, § 12022, subd. (a)(1).) Hernandez argues the trial court erred in failing to instruct the jury on simple possession of marijuana as a lesser included offense of possession of marijuana for sale and in omitting an element of the crime in the instruction for the crime of cultivation of marijuana. Hernandez also claims his trial counsel was ineffective for failing to make the trial court aware that, pursuant to Proposition 64, his conviction for cultivating marijuana was a misdemeanor.

In 2014, appellant Theresa Barreras, then a psychiatric social worker employed by respondent the County of Monterey (County), accessed records for 65 County mental health patients and contacted them, encouraging them to attend an upcoming public board of supervisors (BOS) meeting to voice their concerns about their care. At the BOS meeting, Barreras addressed the board and spoke about deficiencies with the County’s treatment of mental health patients. Following her comments, she gestured toward the audience and stated that there were individuals attending the meeting who were there because of their mental health issues, and 11 individuals stood up. Several individuals spoke at the meeting and identified themselves as County patients or family members of County patients.

Appellants Zachary Calhoun and Stefan Calhoun appeal from orders holding them in contempt of court. Respondent Samira Hariramasamy obtained temporary restraining orders against the Calhouns, who are her next door neighbors. The parties met with a court ordered mediator on Hariramasamy’s request for a civil harassment restraining order and agreed to terms of conduct, which were memorialized in a stipulated court order. Hariramasamy later filed orders to show cause and affidavits for contempt, alleging multiple violations of the stipulated order. After a bench trial, the court agreed and found the Calhouns each in contempt on several of the counts charged.

Plaintiff Jerry Garcia is a homeowner seeking relief from the threatened sale of his home by nonjudicial foreclosure. Garcia claims on appeal that the assignment of the deed of trust securing his loan on the property was invalid pursuant to provisions of the California Homeowner Bill of Rights (HBOR) (Civ. Code, § 2923.4 et seq.) and the subsequent recording of notices of default and trustee’s sale were unauthorized.

On January 3, 2018, appellant, Gerald Linn Yost, entered into a plea agreement in which he would plead guilty to allegations that he committed robbery (Pen. Code, § 212.5, subd. (c), count 1) and admit two prior prison term enhancements (§ 667.5, subd. (b)) and two prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)). Under the terms of the agreement, two prior serious felony conviction enhancements (§ 667, subd. (a)) and four prior prison term enhancements would be dismissed.