CA Unpub Decisions

Codefendants Tommy Leonard Evans (Evans) and Carlton Deandre Flemister (Flemister) were convicted of second degree robbery (Pen. Code, 211), assault with a deadly weapon ( 245, subd. (b)), and carrying a loaded firearm. ( 12031, subd. (a)(2)(f).) The jury also found true the enhancement allegations that they personally used a firearm. ( 12022.53, subd. (b) & 12022.5, subd. (a).) Evans was sentenced to 18 years, which consisted of the upper term of five years on count 1 plus a consecutive term of 10 years for the section 12022.53, subdivision (b) allegation. As to count 2, the trial court imposed a consecutive one year term which was one third the midterm. One third the term of 10 years on the section 12022.53, subdivision (b) allegation as to count 2, or three years and four months, was stayed. A consecutive term of two years, which was one third the midterm, was imposed as to count 3. The 16-month term (one-third of four years) on the section 12022.5, subdivision (a) allegation as to count 3 was stayed. Finally, a concurrent term of two years (one third the midterm) was imposed as to count 4. The trial court granted probation as to codefendant Flemister. On appeal, Flemister contends there was insufficient evidence that he was the driver of the vehicle used to commit the robberies and the trial court erroneously admitted into evidence a state gun registry showing he did not own the firearm. Court conclude his contentions are without merit and affirm.

A jury convicted defendant of second degree robbery (Pen. Code, 211), while using a firearm (Pen. Code, 12022.53, subd. (b)) and evading a police officer. (Veh. Code, 2800.2, subd. (a).) He was sentenced to prison for 13 years and appeals, claiming the trial court erred in refusing to instruct the jury or denying his motions for mistrial or a new trial, there was insufficient evidence to support the gun use finding and his trial counsel was incompetent. Court reject his contentions and affirm.

Jonathan Ray Hylton appeals from a four-year sentence imposed by the trial court following his guilty plea. In our original unpublished opinion, filed on May 26, 2006, we affirmed the judgment. Subsequently, the United States Supreme Court granted a petition for writ of certiorari filed by defendant, vacated the judgment, and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).[1]Cunningham concluded that Californias determinate sentencing law violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence. (Id. 127 S.Ct. at p. 870.) We requested and received further briefing from the parties on the effect of Cunningham and two recent California Supreme Court decisions interpreting that case, People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In light of those cases, Court vacate defendants sentence and remand to the trial court for resentencing.

Elizabeth English and Steven Kiss are the parents of a boy who is now seven years old. Elizabeth appeals from judgment after trial. The court denied her request to move to Maryland with the child. Elizabeth contends that the decision was impermissibly coercive, that as the customary custodial parent she was presumptively entitled to relocate with the child, that the trial court did not consider evidence of the effect on the child of Elizabeth's relocation without the child, and that the court ignored the presumption against awarding custody to a perpetrator of domestic violence. (Fam. Code, 3044.) Court disagree and affirm the judgment.

James Arias, a real estate agent, and his employer, IN CO Financial, Inc., appeal from the judgment entered in favor of Elaine Kelly as trustee of the Elaine Kelly Trust on her claim Arias negligently prepared an agreement in connection with Kellys sale of real property. Kelly has cross appealed from the damages portion of the judgment. Court affirm.

Appellant Adrian R. Baltazar appeals from a judgment[1]entered after a jury found him guilty of unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a), count 1); evading an officer with willful disregard (Veh. Code, 2800.2, subd. (a), count 2); possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1), count 3); carrying a loaded firearm (Pen. Code, 12031, subd. (a)(1), count 4); kidnapping for carjacking (Pen. Code, 209.5, subd. (a), count 5); and carjacking (Pen. Code, 215, subd. (a), count 6). The jury found true the allegation that appellant personally used a firearm in the commission of counts 5 and 6 ( 12022.53, subd. (b)). The trial court found that appellant had sustained a prior felony conviction within the meaning of the Three Strikes law.

William A. Miles appeals from the judgment entered following his conviction by jury of assault with a semiautomatic firearm and possession of an assault rifle. Court reject Miless contention he was improperly denied his right to represent himself. However, we conclude the trial court failed to hold a proper hearing after it declared a doubt as to Miles competence to stand trial and remand for a new competency hearing.

Defendant and appellant Armondo Gib Ortega was convicted, following a court trial, of six counts of committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, 288, subd. (a))[1], and one count of willfully failing to follow the registration requirements for a convicted sex offender ( 290). The court also found true allegations that defendant suffered both a prior strike conviction ( 1170.12) and a prior violent felony conviction ( 667, subd. (a)). Defendant challenges this conviction on numerous grounds, arguing that (1) he did not receive adequate notice of the charges filed against him; (2) he was denied assistance of counsel regarding his motion for a new trial; (3) insufficient evidence existed to support his six section 288, subdivision (a), convictions; (4) insufficient evidence existed to support his conviction for failing to register as a sex offender ( 290); (5) the trial courts sentence violates due process because the sentence was imposed in order to punish defendant for asserting his right to a trial; (6) he was entitled to a jury trial on the question of whether he was entitled to probation under 1203.066; and whether he had a prior serious felony conviction; (7) there was no substantial evidence of his probation ineligibility; (8) the court failed to find he did not meet the conditions for probation eligibility; (9) the court failed to properly state its reasons for imposing consecutive terms; and (10) he was denied his federal due process rights under Blakely v. Washington (2004) 542 U.S. 296, (Blakely) when the trial court imposed the upper term on count 3 based on facts that had not been either admitted or found to be true by a jury beyond a reasonable doubt. None of these contentions has any merit and, accordingly, Court affirm the judgment of conviction.

Defendant Linda Garner challenges a state prison sentence imposed after she opted out of Proposition 36 treatment at a third drug-related probation violation hearing. Court affirm.

Jennifer E. (appellant), mother of Julia E. (born in August 2000), appeals a disposition order (Welf. & Inst. Code, 361, subd. (c)(1))[1]removing Julia from her custody, and an order limiting her right to make educational decisions for Julia. Appellant contends the orders must be reversed because the Mendocino County Department of Social Services (Department) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). She also contends the court erred in requiring her to undergo a substance abuse assessment and participate in a domestic violence class as part of her reunification case plan, and violated her due process rights by limiting her authority to make educational decisions for Julia. Court reject the contentions and affirm.

By petition for writ of mandate, the City of Oakland (City) challenges an order of the County of Alameda Superior Court specifying a procedure to select an arbitrator to hear and resolve the challenge by former City of Oakland police officers (Officers)[1]to their dismissals.[2] City contends that the order is contrary to the provisions of its Memorandum of Understanding (MOU) with the Oakland Police Officers Association (Union), and that it violates Code of Civil Procedure section 1281.6.[3] Officers respond that (1) the City invited the superior courts intervention by filing a petition seeking broad relief; (2) section 1281.6 authorized the superior court to deviate from the MOU where, as here, the method specified in the MOU could not be followed; and (3) section 1281.6 specified the precise method of arbitrator selection set forth in the superior courts order. Court agree with Officers in part and, accordingly, deny the petition.

Defendant and appellant Tony Peralta appeals from the judgment entered following a jury trial that resulted in his convictions for vehicular manslaughter with gross negligence, reckless driving causing bodily injury, leaving the scene of an accident, driving without a license, receiving stolen property, unlawfully driving or taking a vehicle, and engaging in unlawful firearm activity. Peralta was sentenced to be incarcerated for 11 years, 4 months.
Court now conclude imposition of the upper term and consecutive terms did not violate Blakely v. Washington, supra, 542 U.S. 296 or Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856], and again affirm.

This case is before us on a remand from the California Supreme Court. (Action Apartment Ass'n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1253.) Pursuant to the mandate of the Supreme Court, the cause is remanded to the trial court for further proceedings consistent with the views expressed by the Supreme Court in its opinion. In terms of costs of appeal, given the language in Freeman v. State Farm Mutual Automobile Ins. Co. (1975) 14 Cal.3d 473, 482-487 and Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836-837, the position taken by each party, as well as the trial court, was eminently reasonable. The interests of the justice are best served by each side bearing its own costs on appeal. The judgment is reversed to the extent that it directs the superior court to enter a judgment declaring that Santa Monica Municipal Code section 4.56.020, subdivision (i)(1) is preempted by the litigation privilege.

Ricardo Rosas appeals from the judgment entered following a remand for the limited purpose of resentencing after this court determined the trial court had erred in concluding full, consecutive sentencing was mandatory under Penal Code section 667.6, subdivision (d). Following remand, he was sentenced to prison for a total of 12 years for having committed three counts of forcible lewd acts upon a child (Pen. Code, 288, subd. (b)(1)) to whom he was a stranger (Pen. Code, 1203.66, subd. (a)(3)) with substantial sexual conduct (Pen Code, 1203.066, subd. (a)(8)) and use of force, violence, duress, menace and fear of bodily injury (Pen. Code, 1203.066, subd. (a)(1)).

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal. 3d 436, 441.)
On February 23, 2004, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. An extension to file a supplemental brief was granted to May 24, 2004. On May 17, 2004, appellant filed a supplemental brief on appeal challenging the sufficiency of evidence to support his convictions. Court afforded the parties additional time to address those opinions. After review of Cunningham, Black II, Sandoval, and the parties supplemental briefs, Court affirm the judgment.