CA Unpub Decisions

Appellant Donald Kinzel returns to this court for a second review of an attorney fees award made more than 13 years ago in favor of his former wife, respondent Pamela Vanneman. On this occasion he contends that the order, which sanctioned him under Family Code section 271 for improper litigation conduct, was void, as it characterized the award as additional child support. Appellant's new argument fails.

After a court trial, defendant John Hamm was convicted of one felony count of threatening to commit a crime resulting in death or great bodily injury (Pen. Code, 422) and one misdemeanor count of indecent exposure (Pen. Code, 314, subd. (1)). The trial court placed defendant on formal probation for one year, suspended imposition of any additional jail sentence or a prison sentence, ordered defendant released to a crisis residential treatment program, and ordered defendant to register pursuant to Penal Code section 290 upon his release from custody, among other terms and conditions. On appeal, defendant contends there was insufficient evidence to sustain the conviction on each count. For reasons that Court explain, Court find no merit in defendants contentions and, therefore, Court affirm the judgment.

A jury convicted defendant Jodi Lingefelt of one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), two felony counts of transportation of methamphetamine ( 11379, subd. (a)), one count of being under the influence of methamphetamine ( 11550, subd. (a)), one count of possession of drug paraphernalia ( 11364), one count of misdemeanor child endangerment[2] (Pen. Code, 273a, subd. (b)), and one count of driving with a suspended license (Veh. Code, 14601.1, subd. (a)). In a bifurcated proceeding, the court found true enhancement allegations that defendant had suffered two prior convictions for possession of a controlled substance for sale ( 11378), one prior conviction for attempted possession of stolen property (Pen. Code, 664, 496), and two prior prison terms (Pen Code, 667.5, subd. (b)). The court sentenced defendant to the lower term of two years in prison on one of the transportation counts, plus one year each for the two prior prison terms, for a total term of four years. The court sentenced defendant to concurrent 90-day jail terms on each of the misdemeanor counts for child endangerment, driving on a suspended license, possession of drug paraphernalia, and being under the influence of methamphetamine. It dismissed the second transportation count and stayed the sentence on the conviction for simple possession under Penal Code section 654. On appeal, defendant challenges her misdemeanor conviction for child endangerment on the ground that it is not supported by substantial evidence. Court conclude the jurys verdict was supported by substantial evidence and affirm the judgment.

With no promises having been made as to a specified prison term or other disposition, defendant Derick Anthony Mitchell, a habitual offender, pleaded guilty to one count of making criminal threats in violation Penal Code section 422. He also admitted three prior strike allegations, three prior serious felony allegations, and four prior prison term allegations. The court, which expressed the intention to sentence defendant to the minimum term possible, dismissed the three prior strikes and the prison priors and sentenced defendant to a mitigated term of 16 months on the criminal threats charge and three consecutive five-year terms for his prior serious felony convictions, for a total prison term of 16 years, four months. In addressing the restitution fund fine and parole revocation fine under sections 1202.4, subdivision (b), and 1202.45, respectively, the court stated its intention to modify the maximum $10,000 that had been recommended for each fine in the probation report. But the court then omitted any mention of the amount of the fines that it actually intended to impose. Both the clerks minute order and the abstract of judgment reflect the maximum fines of $10,000 each, the latter fine imposed but suspended. Defendant appeals and respondent concedes that the court failed to state the amount of fines it intended to impose. Court accept the concession and reverse the judgment with directions for the trial court on remand to specify the amount of the restitution fund fine under section 1202.4, subdivision (b), and the parole revocation fine under section 1202.45. The abstract of judgment shall then be amended to reflect the actual amount of the fines imposed.

Moses M. is in the custody of the Division of Juvenile Facilities (DJF)[1]for an aggregate term of 18 months (see Welf. & Inst. Code, 602, subd. (a)), which the juvenile court imposed on him for a current offense of misdemeanor battery (Pen. Code, 242, 243, subd. (a)), aggravated by prior sustained offenses of misdemeanor battery, attempted first degree burglary, second degree burglary, robbery, vandalism, and trespassing (see Welf. & Inst. Code, 726). The court also found that Moses M. had violated his probation (see id., 777). He appeals from the commitment order (id., 800, subd. (a)), claiming that it amounts to an abuse of discretion. Court disagree and affirm the order.

John Wilbur appeals his convictions by a jury for transportation of methamphetamine, possession of 28.5 grams or more of methamphetamine for sale, possession of a firearm by a felon, and possession of ammunition by a felon. Wilbur argues that (1) the court erred when it denied his motion for judgment of acquittal on the firearm and ammunition counts, (2) his counsel was ineffective, (3) his sentence to concurrent terms violated Penal Code section 654,[1]and (4) imposition of the upper term sentence for possession of methamphetamine violated his rights secured by the Sixth and Fourteenth Amendments because the sentence was based on factors not found by the jury.

In April 2007, we remanded this case for resentencing in accordance with the principles announced in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We otherwise affirmed the judgment. Thereafter, the California Supreme Court granted review and deferred further action pending further order of the court. In September 2007, the matter was transferred to this court with directions to vacate its decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. Having so reconsidered the matter, we conclude the error in the imposition of the upper term cannot be considered harmless. Court again remand for resentencing in accordance with Cunningham and otherwise affirm the judgment.

Appellant Eugene Snow seeks reversal on multiple grounds of the jury finding that he is a sexually violent predator (SVP), as alleged by the People in a petition filed in June 2004 pursuant to Welfare and Institutions Code section 6600 et seq. Court affirm the judgment.

Patricia S. (Mother) and Albert L. (Father) appeal contending the juvenile court erred when it terminated their parental rights as to their daughter Anna L. The maternal grandmother, Marie T., also appeals contending that if the trial court erred, then Anna should be placed with her. Court conclude the trial court did not commit any prejudicial errors and affirm.

Appellant Andrew F. was continued as a ward under Welfare and Institutions Code section 602 after the juvenile court sustained a petition alleging he had committed the felonies of receiving stolen property and taking or driving a vehicle. (Pen. Code, 496, subd. (a); Veh. Code, 10851, subd. (a).) At the disposition hearing, he was placed in his mothers custody under the Family Preservation Unit. Appellant contends the evidence presented at the contested jurisdictional hearing was insufficient to support the true findings, and he argues that the case must be remanded so the juvenile court can expressly designate his wobbler offenses as misdemeanors or felonies. Court agree with the later contention, but otherwise affirm the judgment.

Defendant Todd Davie challenges the trial courts selection of the upper term sentence, claiming that it violated his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296. In our original opinion, we affirmed the trial court on the basis of our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), that upper term sentencing on the basis of factors found true by the trial court, rather than a jury, did not violate the rule of Blakely and other high court decisions. Subsequently, the United States Supreme Court granted certiorari to review our decision, and later remanded the case to this court. It did so for reconsideration in light of the decision in Cunningham v. California (2007) 549 ___ U.S. ___ [127 S.Ct. 856, 871], which rejected the rationale of Black I. While the case was pending in this court following remand, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. These cases further define the validity of upper term sentencing under the determinate sentencing law. Court invited the parties to submit letter briefs on the application of these 2007 decisions to the present appeal. They have done so, and we have considered their responses. Based on Black II, Court conclude that the upper term sentence imposed does not violate constitutional principles.

Joseph Musharbash appealed from the judgment entered following a jury trial in which he was convicted of four counts of grand theft of personal property (Pen. Code, 487, subd. (a)) and four counts of second degree commercial burglary (Pen. Code, 459). Sentenced to prison for a total of three years, he contended the jury did not make the factual determinations necessary to impose the upper term. In an opinion filed April 18, 2005, we affirmed the conviction but reversed the sentence and remanded the matter for resentencing. Thereafter, a petition for review in the Supreme Court of California was granted and the matter was transferred to this court with directions to vacate our decision and to reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238. On October 20, 2005, Court filed an opinion finding no constitutional error in sentencing in light of that case.

Appellant Justin Ritchie appeals from convictions for residential burglary (Pen. Code, 459, count 1),[1]grand theft firearm ( 487, subd. (d)(2), counts 2-4), ex-felon in possession of a firearm ( 12021, subd. (a)(1), count 5), and possession of a controlled substance (Health & Saf. Code, 11377, subd. (a), count 6). Before jury trial, appellant waived his constitutional rights and admitted he had a previous felony conviction which qualified as a strike under the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and as a serious felony ( 667, subd. (a)). He also admitted he served a separate prison term for a prior conviction. ( 667.5, subd. (b).)

Several issues are raised on appeal. First, appellant contends the trial court erred in concluding a prima facie case for discovery had not been made pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Second, he contends he should only have been convicted of one count of grand theft firearm, an issue conceded by respondent. Third, he contends the court erred in imposing an additional term of imprisonment on count 5, ex felon in possession of a firearm, arguing that section 654 should have precluded the additional term. Finally, he challenges imposition of the upper term on count 1 pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Appellant contends that the imposition of an upper term sentence for the burglary conviction is in violation of his Sixth Amendment right to a jury trial under Blakely. Court disagree.

Defendant and appellant Kau Ashanita Elam appeals from the judgment entered following a jury trial that resulted in his convictions for assault on a peace officer and resisting executive officers. Elam was sentenced to a term of six years in prison. He contends the trial court erred by: (1) denying his motion for release of juror identification information; (2) imposing the upper term sentence based on facts neither admitted by appellant nor found by a jury (Blakely v. Washington (2004) 542 U.S. 296); and (3) imposing sentence on numerous counts in violation of Penal Code section 654. Elam also requests that we review the sealed transcript of the in camera Pitchess hearing to determine whether the trial court erred by finding only one discoverable document. The People request that the abstract of judgment be corrected. Court find the abstract of judgment reflects the correct judgment. Court affirm the judgment.

Appellant Oscar Marin was convicted of petty theft with prior convictions. (Pen. Code, 666.) His sole claim on appeal is that the trial court violated his Sixth Amendment right to jury trial by sentencing him to the upper term for the offense, based on aggravating facts that were neither found by a jury nor admitted by appellant. He relies on Blakely v. Washington (2004) 542 U.S. 296, for that proposition. In our original opinion, we rejected his position, based on the decision of the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I) that such upper term sentencing under the determinate sentencing law did not violate constitutional principles as declared in Blakely and other high court decisions.
The United States Supreme Court granted certiorari to review our decision and ultimately reversed the decision and remanded the case in light of its decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 871], rejecting the rationale of Black I. While on remand, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, which bear on the issue. We invited the parties to submit letter briefs on the application of these 2007 decisions to the present case. They have done so, and we have considered their responses. Court conclude that the upper term sentencing in this case did not violate constitutional requirements.