CA Unpub Decisions

Appellant was convicted of grand theft from the person as a lesser included offense of robbery. We reject his claim the trial court erred in failing to instruct sua sponte on theft of lost property. However, Court agree with him the court erred in conditioning his probation on his payment of probation costs. Court modify the probation order to delete this condition and affirm the judgment in all other respects.

Defendant was convicted by jury trial of failing to reregister as a sex offender within five days of changing his address (Pen. Code, 290, subd. (a)(1)(A)) in August 2004, and of failing to update his sex offender registration within five days of his birthday (Pen. Code, 290, subd. (a)(1)(D)) in January 2005. The court found true allegations that defendant had suffered three prior serious felony convictions (Pen. Code, 667, subds. (b)-(i), 1170.12) and served three prison terms for prior felony convictions (Pen. Code, 667.5, subd. (b)). The court imposed a state prison term of four years. On appeal, defendants sole contention is that the trial court prejudicially erred in failing to instruct sua sponte on mistake of fact. Court find no prejudicial error and affirm the judgment.

Following a jury trial, appellant was convicted of two counts of making a criminal threat and one count of assault with a deadly weapon. (Pen. Code, 422, 245, subd. (a).) The jury found true an allegation that appellant used a deadly weapon in the commission of one of the criminal threats. (Pen. Code, 12022, subd. (b)(1).) The jury acquitted appellant of one count of robbery. (Pen. Code, 211.) Appellant pleaded no contest to seven misdemeanor counts. In a separate proceeding, the jury found true allegations that appellant had six prior strike convictions and two prison prior convictions. (Pen. Code, 667, subds. (b)-(i), 1170.12, subd. (a), 667.5, subd. (b).) The trial court sentenced appellant to a state prison term of 53 years to life. Appellant contends that the prosecutor committed misconduct in closing argument. Court affirm.

Defendant Anthony Rashawn Denard was sentenced to 40 years to life in prison for the murder of Kevin Davis (Pen. Code, 187, subd. (a)) with use of a firearm (Pen. Code, 12022.53, subd. (d)). This was defendants second trial for the killing; we reversed an identical judgment following the prior trial for instructional error. (People v. Denard (Dec. 6, 2002, A097159) 2002 WL 31732690 [nonpub. opn.])Instructional issues are again the primary focus in the current appeal. Defendant argues that the court should have instructed on the offense of involuntary manslaughter, and on the principle of unreasonable defense of another. He further contends that the imperfect self-defense instructions were flawed, and that the court erred in limiting his introduction of character evidence. Court conclude that an involuntary manslaughter instruction should have been given, but hold that the error was harmless and that defendants other arguments lack merit. The judgment is therefore affirmed.

A jury found Chalee Wilson guilty of first degree murder with personal use of a firearm (count 1; Pen. Code, 187, subd. (a), 12022.53, subd. (d)) and, from the same incident, unlawful firearm use by a misdemeanant (count 2; Pen. Code, 12021, subd. (c)(1)). Wilson stands sentenced to 50 years to life in prison, comprised of two consecutive 25 year to life terms for the murder and firearm use, with sentence on the second count stayed (Pen. Code, 654). He appeals, claiming various trial errors and instances of ineffective assistance of counsel. Court reject all of his claims and affirm.

Petitioner John Hsu was dissatisfied with the performance appraisal prepared by his employer, real party in interest California Department of Toxic Substances Control (DTSC). Hsu sought review of that appraisal by the appeals unit of respondent California Department of Personnel Administration (DPA). Before the DPA appeal process was complete, Hsu filed a petition for writ of mandate, prohibition, or other appropriate relief seeking, inter alia, a stay of the DPA proceedings, disqualification of the hearing officer, and a new administrative hearing. The petition was denied, and Hsu filed this appeal. The appeal is dismissed.

A judgment for dissolution of marriage was entered pursuant to a stipulation between appellant Rebecca Shumye and respondent Samuel Felleke. Appellant, in propria persona, appeals after the trial court denied her postjudgment motion to Reverse Uncontested Judgment to Contested. Court dismiss the appeal.

County of Sonoma (County) appeals the order denying its motion to disqualify attorney Gail Flatt from representing Tiffany Cooper, a County employee who has filed a disability employment discrimination action against the County. The trial court also denied the Countys request for certain protective orders. Countys primary claim of error is that Flatt should be disqualified because she received, reviewed and retained confidential, privileged and protected County documents and had ex parte communications with Countys managing agent, Linda Jenkins, while Jenkins was represented by Countys counsel in the action Flatt brought on behalf of Cooper, an existing client, against County. The order is affirmed.

Appellants Vernon Van and Mary Rose Barry brought separate actions against Target Corporation, Wal-Mart Stores, Inc. and Home Depot U.S.A., Inc. (sometimes collectively respondents) alleging that respondents unlawfully prevented them from gathering signatures in front of respondents stores that are located in commercial retail complexes. The trial court granted summary judgment in favor of respondents, ruling that individual stores did not possess the attributes of a public forum. Court affirm.

Appellant Benjamin Frandsen challenges his first degree murder convictions on numerous grounds, including sufficiency of evidence, evidentiary error, and instructional error. Court conclude substantial evidence supports appellants murder convictions and the multiple murder special circumstance finding. The trial court properly admitted Shane Huangs statements reflecting an intent or desire to kill the victims, which were relevant to establish appellants liability for first degree murder as an aider and abettor. However, the trial court erred prejudicially by failing to properly instruct the jury on the elements of the multiple murder special circumstance, the natural and probable consequences doctrine, and involuntary manslaughter.

Appellant Andres Santana was convicted, following a jury trial, of one count of false imprisonment in violation of Penal Code[1]section 236, one count of kidnapping in violation of section 207, subdivision (a), three counts of assault with a firearm in violation of section 245, subdivision (a)(2), two counts of making criminal threats in violation of section 422, one count of second degree robbery in violation of section 211 and one count of attempted second degree robbery in violation of sections 211 and 664. The jury found true the allegations that six of the crimes were committed for the benefit of a criminal street gang within the meaning of section 186.22, and also found true various firearm allegations for eight of the crimes. Appellant admitted that he had suffered a prior serious felony conviction within the meaning of sections 667,
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the jury's true findings on the gang allegations. Court affirm the judgment of conviction.

Appellant Raul Friday Ramos challenges his assault with a deadly weapon conviction on the ground the trial court violated his right to a jury trial by imposing an upper term sentence on the basis of factors not found by the jury. Court conclude appellant forfeited the contention by failing to object in the trial court.

A modification decision.

Appellant Errol Winbush waived his right to a jury trial and pled guilty to two counts of residential burglary in violation of Penal Code section 459,[1]and one count of attempted commercial burglary in violation of sections 664 and 459. Appellant also admitted the allegations that he had suffered nine prior felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (the "three strikes" law) and had served a prior prison term within the meaning of section 667.5, subdivision (b).
Appellant obtained a certificate of probable cause from the trial court and now appeals, contending that the trial court erred in sentencing him to two one year enhancement terms for the prison prior. Respondent agrees. Court agree as well. Court order one of the one-year terms imposed pursuant to section 667.5 stricken and appellant's total sentence reduced to 13 years. Court affirm the judgment of conviction in all other respects.