CA Unpub Decisions

Simon G. appeals the findings and orders entered at a hearing on Respondent's Welfare and Institutions Code section 388 petition. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error. Simon G.'s counsel also requests leave for him to file a supplemental brief in propria persona. The request is denied. The appeal is dismissed.

Audry Hamill claims that she was injured when Melanie Smiths car struck the rear end of the car in which she was riding. The trial court directed a verdict on the issue of whether Smith was negligent and as a result caused harm to Hamill. Smith claimed that there was very little injury to the Hamill car and that Hamills claims of injury and expenses for medical treatment were excessive and unnecessary. Hamill asserts that the trial court erred when it refused to continue the trial in order to allow her to investigate a recent medical report regarding her condition. In addition, Hamill asserts that the jury verdict for her medical expenses was inadequate as a matter of law. Court find no trial court error and confirm the judgment of the jury.

Dale C. Tatum, Ph.D., plaintiff and appellant (hereafter plaintiff), appeals from the summary judgment entered against him and in favor of defendants and respondents, Chaffey Community College District, Donald Berz, and Paul Parnell (hereafter referred to collectively as defendants, or individually by name), on plaintiffs complaint for damages based on wrongful termination of employment and employment discrimination. In their motion for summary judgment, defendants asserted that plaintiffs claims all were barred because he (1) had failed to pursue the appropriate judicial remedies, and (2) had failed to present a written claim as required by the Tort Claims Act, Government Code section 810 et seq. The summary judgment in favor of defendants is reversed.

After two mistrials, a jury finally acquitted defendant in a third trial of burglary (count 1) but convicted him of being a felon in possession of a firearm and being in possession of a concealed weapon (counts 2 and 3). ( 459; 12021, subd. (a)(1); 12025, subd. (b)(3).)
Defendant had previously admitted the gang enhancement allegations regarding counts 1 and 2 ( 186.22, subd.(b)); being a convicted felon with respect to count two; and being an active participant in a criminal street gang with respect to count 3.
The court found true the allegations that defendant had suffered two prior convictions. ( 667, subd. (a).) The court denied defendants request to dismiss his prior strike offenses and sentenced him to a prison term of 38 years to life. ( 667, subds. (b)-(i).) At the time defendant committed the present offenses, he was 19 years old.
On appeal, defendant challenges the sufficiency of the evidence for count 3, being in possession of a concealed firearm. He also charges instructional and evidentiary error concerning his gang membership. He contends the trial court wrongly excluded hearsay impeachment evidence regarding James Parsons, the chief prosecution witness. He asserts the foregoing constituted cumulative prejudicial error. Finally, he contends the trial court abused its discretion by denying his motion to strike his prior strikeoffenses. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Court affirm the judgment.

A jury convicted Pedro Trujillo of possession of a weapon by a prisoner in violation of Penal Code section 4502, subdivision (a),[1]and possession of drug paraphernalia by a prisoner in violation of section 4573.8. Defendant admitted five prior prison term allegations within the meaning of section 667.5, subdivision (b).
Defendant was given a four year upper term sentence on count 1, the violation of section 4502, subdivision (a). On appeal, he contends this upper term sentence violated Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), because the trial court, in reaching its upper term sentencing decision, made factual findings that aggravating factors existed and then weighed them against a mitigating factor. Defendant was given a consecutive term (one third the middle term) of eight months for count 2, and one year for each of the five prior prison term enhancements, for a total sentence of nine years eight months.
The matter is remanded to the trial court for resentencing consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.

Defendant and appellant Raymond R., a minor, appeals from a juvenile court judgment finding he made a terrorist threat in violation of Penal Code section 422[1]and committed the offense for the benefit, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1). He claims there is insufficient evidence to support the judgment. Defendant also argues his case must be remanded because the juvenile court did not (1) declare the section 422 offense either a felony or a misdemeanor as required by Welfare and Institutions Code section 702; and (2) did not establish a maximum period of confinement as required by Welfare and Institutions Code section 726, subdivision (c).
The matter is reversed and remanded to allow the juvenile court to clarify whether the Penal Code section 422 offense is a felony or misdemeanor pursuant to Welfare and Institutions Code section 726, subdivision (c), and to then specify the maximum term of confinement pursuant to Welfare and Institutions Code section 726. In all other respects, the judgment is affirmed.

Defendant and appellant Robert Edwards appeals after he pleaded guilty to two charges of carjacking and admitted a gang enhancement. He contends that the trial court abused its discretion in denying his motion to withdraw his plea. He further argues there were errors in his sentence concerning fines. Court affirm.

The People charged defendant by information with possession of methamphetamine for sale (count 1 Health & Saf. Code, 11378), with a special allegation that he had incurred a previous drug conviction (Health & Saf. Code, 11370.2, subd. (c)), possession of heroin (count 2 Health & Saf. Code, 11350, subd. (a)), and possession of a hypodermic needle (count 3 Bus. & Prof. Code, 4140). The People additionally alleged defendant had suffered three prior prison terms (Pen. Code, 667.5, subd. (b)) and a prior strike conviction (Pen. Code, 667, subds. (c) & (e), 1170.12(c)(1)). Defendant pled guilty to the sheet, i.e., to all counts and allegations as alleged in the information. In return, the court sentenced him to an aggregate prison term of five years eight months and stayed imposition of sentence on the three prior prison term enhancements. On appeal, defendant contends the court erred in staying, rather than striking, the three prior prison term enhancements. The People concede the matter. Court agree and, therefore, order the three prior prison term enhancements stricken. In all other respects, the judgment is affirmed.

A jury found defendant guilty of transportation of a controlled substance (Health & Saf. Code, 11352, subd. (a)) (count 1) and possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)) (count 3). Defendant thereafter admitted that he had previously been convicted of a prior drug-related offense within the meaning of Health and Safety Code section 11370.2, subdivision (a). Defendant was sentenced to a total term of seven years in state prison as follows: the middle term of four years on count 1, plus a consecutive three-year term for the prior drug conviction allegation, and a concurrent term of two years on count 3. On appeal, defendant contends (1) the trial court erred in denying his suppression motion; (2) the trial court erred in denying Proposition 36 (Pen. Code, 1210 et seq.) treatment and making a factual finding that the heroin found on his possession was being transported for purpose of sale; and (3) his sentence on count 3 should have been stayed pursuant to section 654. Court agree with the parties that defendants sentence on count 3 should have been stayed but reject defendants remaining contentions. Court agree with the parties that defendants sentence on count 3 should have been stayed but reject defendants remaining contentions.

This is defendants second appeal in this matter. In an information filed by the Riverside County District Attorneys Office on September 25, 1997, defendant was charged with six counts of residential burglary (Pen. Code, 459), three counts of receiving stolen property (Pen. Code, 496), and one count of evading an officer with reckless driving (Veh. Code, 2800.2). It was also alleged that defendant had served two prior prison terms (Pen. Code, 667.5, subd. (b)), had suffered four prior strike convictions (Pen. Code, 667, subds. (c)-(e), 1170.12, subd. (c)(1)), and four prior serious felony convictions (Pen. Code, 667, subd. (a)). Defendant was convicted on all charges, was sentenced to 200 years to life plus 22 years, and filed an appeal. Defendants conviction was reversed on the ground that the trial court erred by failing to grant substitute counsel a continuance in order to prepare for trial. The matter was remanded for retrial. (See People v. Medina (Mar. 12, 2002, E027383) [nonpub. opn., pp. 1, 5].) Court have now concluded our independent review of the record and find no arguable issues. The judgment is affirmed.

A jury convicted defendant of making criminal threats. (Count 1 Pen. Code, 422.) On appeal, defendant contends the trial court erred in refusing to give jury instructions on self defense. Court conclude defendant did not rely on the theory of self defense as to the criminal threat count. Moreover, Court determine that substantial evidence did not support such a defense and self defense was inconsistent with defendants theory of the case; thus, the trial court had no duty to so instruct the jury. The judgment is, therefore, affirmed.

A jury convicted Javier Murillo, Jr. of one count of first degree burglary, a violation of Penal Code section 459. He appeals, contending that the trial court erred in refusing his request for a continuance to obtain the tape of a 911 call. He also argues that the trial court erred in refusing to give an instruction for the alleged lesser included offense of unlawful entry. Finding no error, Court affirm.

Defendant Irene Marie Vela was charged with transportation of methamphetamine under Health and Safety Code section 11379, subdivision (a) (count 1); possession of methamphetamine under Health and Safety Code section 11377, subdivision (a) (count 2); possession of drug paraphernalia under Health and Safety Code section 11364 (count 3); and being under the influence of a controlled substance under Health and Safety Code, section 11550, subdivision (a) (count 4). After the trial court denied defendants motion to suppress evidence under Penal Code section 1538.5, defendant pleaded guilty to transportation of methamphetamine (count 1) in exchange for a dismissal of the remaining charges and sentencing under Proposition 36.
On appeal, defendant contends that the trial court erred in imposing certain fees and costs as conditions of her probation. The People contend that the appeal must be dismissed because defendant failed to obtain a certificate of probable cause. Court conclude that defendants failure to obtain a certificate of probable cause requires that the appeal be dismissed.

An information charged defendant with (1) kidnapping with intent to commit rape under Penal Code section 209, subdivision (b)(1) (count 1); (2) kidnapping under section 207, subdivision (a) (count 2); (3) assault with a firearm under section 245, subdivision (a)(2) (counts 3 and 4); (4) making criminal threats under section 422 (counts 5 and 6); (5) felony false imprisonment under sections 236 (count 7); and (6) possessing a firearm as a felon under section 12021, subdivision (a)(1) (count 8). The information specially alleged (1) personal use of a firearm in a specified felony under section 12022.53, subdivision (b) (counts 1 and 2); (2) personal use of a firearm under section 12022.5, subdivision (a) (counts 3-8); (3) a prior prison term under section 667.5, subdivision (b); and (4) a prior serious felony conviction under section 667, subdivision (a) and strike under section 667, subdivisions (b) through (i).
The trial court granted a defense motion of acquittal of counts 2 and 7. The jury found defendant guilty of count 8 and not guilty of counts 1 and 3 through 6. Defendant admitted the prior prison term and the prior serious felony conviction and strike.
The trial court sentenced defendant to state prison for six years, comprised of the upper three year term for count 8, doubled to six years by the strike. The trial court dismissed the remaining enhancements.
On appeal, defendant contends that the trial court erred in sentencing him to the upper term under Cunningham v. California (2007) U.S.[127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). For the reasons set forth below, Court affirm the judgment.