CA Unpub Decisions

Defendant and appellant Kenneth Moore appeals from the judgment entered following a jury trial that resulted in his conviction for grand theft of personal property. Moore was sentenced to a prison term of 10 years.
Moores sole contention on appeal is that the trial court violated his Sixth Amendment and due process rights to have a jury determine the facts upon which the court relied to impose an upper term sentence (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856]). Court affirm.

A modification decision.

Defendant, Leslie Angelica Martinez, appeals from her felony convictions for robbery (Pen. Code,[1] 211), unlawful driving of an automobile (Veh. Code, 10851, subd. (a)), receiving stolen property ( 496d, subd. (a)), and evading an officer with willful disregard for the safety of others. (Veh. Code, 2800.2, subd. (a)). She also appeals her conviction for misdemeanor hit and run driving. (Veh. Code, 20002, subd. (a).) Defendant argues there was insufficient evidence to support her conviction for robbery and her sentence for receiving stolen property should have been stayed pursuant to section 654, subdivision (a). The Attorney General argues that certain fees must be imposed. Court affirm the judgment with minor modifications.

Defendant, Marques Ray Washington, appeals from his conviction for lewd act upon a child under the age of 14. (Pen. Code, 288, subd. (a).) Defendant argues he was denied effective assistance of counsel. Defendant was convicted during a retrial after the jury was unable to reach a verdict during the initial trial concerning count 1 of the information. The Attorney General argues the abstract of judgment should be corrected to more accurately reflect the sentence imposed. Court affirm with modifications.

Defendant, Sirlasie Rayshon Curry, appeals from his convictions for two counts of assault on a peace officer with a semiautomatic firearm and one count of firearm possession by a felon. (Pen. Code,[1] 245, subd. (d)(2); 12012, subd. (a)(1).) Defendant also appeals from the jurors firearm use finding. ( 12022.5, subds. (a), (d), 12022.53, subd. (b).) Defendant argues the trial court improperly imposed the upper term and should have stayed the count 3 firearm possession sentence pursuant to section 654, subdivision (a). The Attorney General argues the trial court should have imposed a court security fee as to each count. The judgment is affirmed with modifications.

Defendant, Victor L. Paleologus, purports to appeal after he pled guilty to first degree murder. (Pen. Code[1], 187.) We noted that defendant had waived his right to appeal as part of a plea bargain whereby the prosecution, in the midst of a capital trial, moved to dismiss: a count of identity theft in violation of section 530.5, subdivision (a); a count of preparing a false financial statement ( 532, subd. (a)); a count of burglary ( 459); a count of grand theft of an automobile ( 487, subd. (d)(1)); a count of forgery ( 475, subd. (b)); a count of receiving stolen property; an allegation he had served 6 prior prison terms; an allegation he had twice been convicted of violent or serious felonies ( 667, subd. (b)-(i), 1170.12); and two special circumstance allegations. ( 190.2, subds. (a)(15) & (17).) We have a duty to raise issues concerning our own jurisdiction on our own motion. (Jenningsv. Marralle (1994) 8 Cal.4th 121, 126; Olsonv. Cory (1983) 35 Cal.3d 390, 398.) Court issued an order to show cause and set the dismissal issue for oral argument.
Court agree with the Attorney General. Defendant waived his right to appeal as part of the settlement of a pending capital case. (People v. Panizzon (1996) 13 Cal.4th 68, 80; People v. Aparicio (1999) 74 Cal.App.4th 286, 292; see People v. Nguyen (1993) 13 Cal.App.4th 114, 124.) The fact the trial court issued a probable cause certificate does not mitigate defendants waiver of the right to appeal under these facts. Thus, the appeal must be dismissed. The appeal is dismissed.

On July 29, 2005, a panel of the Board of Parole Hearings (Board) denied petitioner Kenneth Williams parole for a period of two years. On April 28, 2006, petitioner filed a writ of habeas corpus in the superior court. On July 10, 2006, the superior court issued an order to show cause and appointed counsel for petitioner. On December 18, 2006, the superior court found that the Boards decision denying parole was not supported by some evidence, and ordered the Board to reconsider its decision and to conduct a new hearing within 45 days of service of this order to reconsider defendants suitability for parole using, without restriction, the factors deemed appropriate by the relevant statutes and regulations and in accordance with the requirements of due process. The Attorney General filed a timely appeal, and we issued a stay of supersedeas on February 27, 2007. The Attorney General contends the superior court erred by applying a more stringent standard of review of the Boards decision than that established by the Supreme Court in In re Rosenkrantz (2002) 29 Cal.4th 616 (Rosenkrantz). Court agree and reverse the superior court order.

James Newman (Newman) appeals from the judgment entered following his plea of no contest to possession of cocaine (Health & Saf. Code, 11350, subd. (a)) and his admission that he had previously suffered a prior felony conviction within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Newman to 32 months in prison. Court affirm the judgment.

Plaintiff, Craig Horangic, appeals from a judgment of dismissal following an order granting summary judgment to defendants Ebara Technologies Incorporated (Ebara) and Raymond Campbell (Campbell). Plaintiff contends defendants are not entitled to summary judgment because material issues of fact exist on his wrongful termination and related claims. Court agree and reverse the judgment.

A jury found defendant Joshua Payton guilty of carjacking (Pen. Code, 215, subd. (a))[1]and found true that defendant personally used a firearm during the offense ( 12022.53, subd. (b)) and that the victim was age 65 or older or disabled. ( 667.9, subd. (a).) The trial court denied probation and sentenced defendant to 14 years in state prison, consisting of a low term of three years for the underlying offense, 10 years consecutive for the firearm use enhancement and one year consecutive for the enhancement based on the victims age and disability.
Court have undertaken an independent examination of the entire record in this case and have found no other arguable issues that would result in a disposition more favorable to the defendant.

A jury convicted defendant Thomas Cesar Bursiaga of first degree murder (Pen. Code, 187, subd. (a); 189)[1]and found true the special circumstance allegation that he discharged a firearm from a motor vehicle with intent to inflict death ( 190.2, subd. (a)(21)). The jury also found true allegations that defendant intentionally and personally discharged a firearm and killed the victim ( 12022.53, subd. (d)), and that he committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)). Defendant was sentenced to state prison for life without possibility of parole plus a consecutive term of 25 years to life for the firearm discharge enhancement. The gang enhancement was stayed. Among the fines and fees imposed was a $10,000 restitution fine suspended unless parole is revoked. On appeal, defendant contends (1) his mistrial motions were erroneously denied, (2) the firearm discharge enhancement must be stricken because it is effectively a lesser included offense of the special circumstance of murder by discharging a firearm from a motor vehicle with intent to inflict death, and (3) the suspended restitution fine must be stricken; the Attorney General concedes this last point. Court modify the judgment as to the latter point and otherwise affirm.

K.M. (appellant), the mother of four minors (the minors), appeals from juvenile court orders terminating appellants parental rights. (Welf. & Inst. Code, 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the juvenile court violated appellants due process rights by terminating her parental rights in the absence of sufficient evidence that the Department of Social Services (DSS) provided her with reasonable reunification services. Disagreeing with that contention, Court affirm.

Mark Farnsworth pled no contest to conspiracy to bring controlled substance into state prison. The plea agreement states, "I understand that I have the right to appeal any adverse decision and I give up that right." He subsequently moved to withdraw the plea, and the trial court denied the motion. Farnsworth contends: (1) there was an insufficient factual basis for the plea; (2) his attorney mislead him and denied him effective assistance of counsel; therefore, he did not freely and voluntarily enter into the plea; (3) the court erred in denying his motion for a further continuance to subpoena his former attorney; (4) he is entitled to appeal sentencing issues which were not foreseeable when he signed the plea agreement; (5) he is entitled to work credits, and this court should order the trial court to amend the abstract of judgment accordingly. Affirmed.

Plaintiffs and appellants Pablo Guerrero, Jr. and Sarah Arakawa appeal from a summary judgment entered in favor of defendant and respondent City of San Diego (City) on plaintiffs' complaint in which they alleged a roadway constituted a dangerous condition of public property. Plaintiffs contend summary judgment was improper because they presented evidence raising triable issues of fact as to whether (1) City employees negligently or wrongfully created the dangerous condition (2) City had actual or constructive notice of the dangerous condition; and (3) statutory design immunity applied. Plaintiffs also contend City is estopped from asserting Guerrero's comparative fault on the issues presented. Court affirm.