CA Unpub Decisions

Defendant Joseph Johnson, Jr. appeals from an order of the trial court recommitting him to the Department of Mental Health for a period of two years from 2002 to 2004 under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, 6600 et seq.)[1] He argues: (1) the trial court should have dismissed the recommitment petition before trial because it was moot; (2) trial on the moot petition violated his right to substantive due process; (3) the trial court abused its discretion by permitting the prosecutions expert witnesses to testify about offenses for which defendant was arrested and charged but not convicted; (4) the trial court abused its discretion by permitting the prosecutions experts to testify about a murder solicitation charge of which defendant was not convicted; (5) these evidentiary rulings violated his due process right to a fair trial; and (6) the trial courts order requiring him to pay attorney fees is not supported by substantial evidence and did not comply with statutory procedures.
Court find merit in defendants attorney fee claim. Court therefore strike the order requiring payment of attorney fees and remand the matter for a hearing on defendants ability to pay the actual costs of the legal services provided. However, because the commitment period at issue (2002 to 2004) has expired, Court dismiss this appeal as moot after deciding the attorney fee question for the guidance of future SVPA proceedings.

The trial court denied the petition for writ of administrative mandamus in which Deputy Sheriff Louis Parker,[1] sought to vacate the disciplinary action terminating his employment with the Monterey County Sheriffs Office (Sheriffs Office). The Sheriffs Office terminated Parker on the grounds that he was negligent when he accidentally shot a civilian and that he lied during the internal affairs investigation into the shooting. The Monterey County Board of Supervisors (the Board) upheld the termination.
Parker contends his due process rights were violated because his termination was based on charges that were not set forth in the Notice of Punitive Action. He asserts the Boards finding that other negligent discharge cases were dissimilar was not supported by substantial evidence and that substantial evidence does not support the Boards decision to distinguish this case from accidental discharge cases that did not result in human injury. He argues the decision to terminate him was an abuse of discretion because it was the result of disparate treatment and was not supported by the evidence. Court find no error and affirm the superior court judgment.

Defendant Arron Matthew Hernandez was convicted by a jury of two counts of lewd and lascivious acts against a nine year old girl (Pen. Code, 288, subd. (a)) and one count of annoying or molesting her 10 year old sister when convicted of a prior specified felony. (Id., 647.6, subd. (c)(2).) The jury also heard evidence of uncharged lewd conduct against five girls who were four, six or seven, seven, and seven or eight years old when the acts happened between 13 and 20 years earlier. Defendant admitted five prior strike convictions and a prior one strike conviction. He received a total sentence of 175 years to life. On appeal, defendant challenges a jury instruction on the use to which the evidence of uncharged acts could be put, the sentence imposed, and trial counsels competence.

Pursuant to a negotiated disposition, appellant pleaded no contest to one count of assault with force likely to produce great bodily injury. (Pen. Code, 245, subd. (a)(1).) The trial court placed appellant on probation with various conditions including a county jail sentence and ordered appellant to pay probation costs. Appellant contends, "The trial court erroneously ordered appellant to pay probation costs without properly considering his ability to pay." Court affirm.

Appellant Eric Jason Delahoussaye seeks to reverse his conviction after jury trial of two counts of assault, and one count each of participation in a criminal street gang and possession of methamphetamine, along with criminal street gang enhancement allegations, for which he was sentenced for a total of 11 years. Appellant contends there was not sufficient evidence that he possessed a usable quality of methamphetamine or had specific intent to promote, further, or assist in criminal gang activity, and that the court committed prejudicial error by failing to adequately instruct the jury about the definition of primary activities in determining the criminal street gang count and the two enhancement allegations. Appellant also contends that the trial court violated his constitutional rights when it imposed upper term and consecutive prison sentences for his convictions.
Court affirm the trial courts judgment in all respects other than sentencing. Regarding sentencing, pursuant to Cunningham, supra, 549 U.S. [127 S.Ct 856], and Black II, supra, 41 Cal.4th 799, Court affirm the trial courts imposition of consecutive sentences and an upper term sentence for count 1, vacate the other upper term sentences, and remand this matter for further proceedings regarding sentencing consistent with this opinion and Sandoval, supra, 41 Cal.4th 825.

James Lamont Baldwin (defendant) was convicted by jury of first degree murder, and being a felon in possession of a firearm. The jury also found true an enhancement allegation that he discharged a firearm causing great bodily injury.[1] The court sentenced defendant to a prison term of 25 years to life for first degree murder, and a consecutive term of 25 years to life for the firearm use.
On appeal defendant contends: (1) The prosecutor engaged in numerous instances of misconduct that individually or cumulatively rendered the trial fundamentally unfair; (2) the court abused its discretion under Evidence Code section 352 by admitting many portions of recorded telephone calls between defendant and one of his girlfriends, and the admission of this evidence violated his federal constitutional right to due process; (3) the court erred by admitting evidence of threats and violence against witnesses that were neither made nor authorized by defendant; (4) the court failed adequately to investigate jury misconduct; and (5) the cumulative prejudicial effect of the foregoing errors deprived defendant of due process and a fair trial. The judgment is affirmed.

The Board of Trustees of the California State University (CSU) hired Perini to design and build a residence hall and guest center in 1988. Among Perinis subcontractors was Alagia-Crosby, which provided structural engineering services. Alagia-Crosby in turn hired Baumann to work on a portion of the project. The contract between Perini and Alagia-Crosby required Alagia Crosby to indemnify Perini from claims arising out of Alagia-Crosbys services. Perini states, and Alagia Crosby and Baumann do not dispute, that the project was substantially complete in 1990.
Alagia Crosby moved to dismiss the first amended cross complaint, the amendment, and all remaining unnamed Roe cross-defendants, and Kalman and Baumann joined in the motion. The trial court granted the motion. Alagia Crosby moved for entry of judgment, and Baumann and Kalman joined in the motion. Judgment was entered in favor of Alagia Crosby, Baumann, and Kalman. This timely appeal ensued. The judgment is affirmed.

Joseph Boldt (Boldt) appeals from a judgment entered after a jury found him guilty of multiple criminal offenses and he was sentenced to an upper term based in part on his recidivism. He contends that the upper term of sentence violates his constitutional rights. Court disagree and affirm the judgment.

Defendant Deandre Q. (Deandre) appeals from the juvenile courts jurisdictional and dispositional findings sustaining allegations that he committed second degree robbery and felony false imprisonment, ordering out-of-home placement, and setting the maximum time of confinement (MTC) at six years four months. Deandre makes three arguments on appeal, the first of which is that the felony false imprisonment charge was not supported by substantial evidence, with the facts establishing misdemeanor false imprisonment at most. We agree with this contention, and therefore reduce the charge to misdemeanor false imprisonment, which was supported by substantial evidence. Court thus hold that the jurisdictional finding shall be amended to reflect the reduction of the false imprisonment charge from a felony to a misdemeanor, and the matter is remanded to the juvenile court for a recalculation of the MTC in light of that amendment. In all other regards, the jurisdictional and dispositional findings are affirmed.

Ruby R. (mother) appeals from the order following a hearing pursuant to Welfare and Institutions Code section 366.26. The juvenile court found M.V. adoptable and terminated mothers parental rights to M.V. Mother claims that insufficient evidence supported the courts finding that M.V. was adoptable. Court are unpersuaded by her argument and affirm the judgment.

Michael J. Arlington is a state prisoner who was involuntarily committed as a mentally disordered offender (MDO) pursuant to Penal Code section 2960.[1] He appeals from a judgment after a bench trial extending his commitment to the state mental hospital pursuant to section 2970. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436 (Wende); see Smith v. Robbins (2000) 528 U.S. 259.) Upon independent review of the record, Court conclude that no arguable issues are presented for review, and affirm the judgment.

Carlos Gilberto Higueros (Higueros) appeals from the trial courts order denying his motion to vacate his 1991 plea of guilty to the unlawful driving or taking of a vehicle (Veh. Code, 10851), receiving stolen property (Pen. Code, 496) and grand theft (Pen. Code, 487). (Pen. Code, 1237, subd. (b).) Court affirm the trial courts order.

Defendant and appellant Jaime Adolfo Leiva (defendant) pleaded not guilty to a charge that he possessed cocaine base for sale in violation of Health and Safety Code section 11351.5. After the trial court denied defendants motion to suppress evidence pursuant to Penal Code section 1538.5, defendant pleaded nolo contendere to the charged offense. The trial court placed defendant on formal probation for three years under various terms and conditions. On appeal, defendant contends that the trial court erred when it denied his motion to suppress evidence. Court affirm.

Peter R. (father), the father of Cruz R., petitions for extraordinary relief pursuant to California Rules of Court, rule 8.452. He seeks review of an order setting a permanent plan hearing under Welfare and Institutions Code section 366.26. Father contends that the juvenile court erred in sustaining a portion of the section 300 petition establishing jurisdiction over Cruz, and in denying him reunification services pursuant to section 361.5. Court deny the petition.