CA Unpub Decisions

Defendant pled no contest to first degree burglary, admitted having a prior serious felony conviction for purposes of the five year enhancement and the three strikes law, and was sentenced to state prison for nine years. He appealed, and this court affirmed the judgment. (People v. Cruz (Mar. 15, 2006, C050414) [unpub. opn.].) The remittitur issued on May 19, 2006.
Beginning in July 2006, defendant, in propria persona, filed a series of petitions for writ of habeas corpus, motions, letters, requests, and lawsuits in the trial court asking it to reconsider defendants sentence, strike his prior conviction, and sentence him to a drug program on the grounds that he had AIDS and cryptococcal meningitis, was receiving inadequate medical care in prison, and wanted to give back to the community by speaking to children about the pitfalls of drug use. On November 13, 2006, the trial court denied defendants post conviction motions, finding that it lacked jurisdiction to modify defendants sentence or to consider his motion to strike. The appeal is dismissed.



Defendant filed notices of appeal from the denial of his post-conviction motions.

Anisha H., mother of the minors, and Curtis C., father of A. C., appeal from orders denying the mothers petition for modification and terminating parental rights. The father contends the juvenile court abused its discretion in denying his request for a continuance to permit him to file a petition for modification. The mother argues the juvenile court abused its discretion in denying her petition for modification. The mother also asserts it was error in failing to give notice of the proceedings to a nonfederally recognized tribe and her trial counsel provided inadequate representation in failing to raise the issue. Court affirm.

Appellant appeals from an order and judgment in this dissolution action between him and his former wife, Lorraine Whelan. He contends the trial court erred: (1) in its choice of law ruling as to the parties' prenuptial agreement; (2) by not treating deeds referencing the prenuptial agreement as enforceable contracts; and (3) by denying his request for reimbursement in the division of the family residence under Family Code section 2640. (All undesignated statutory references are to this code.) Lorraine filed a cross-appeal contending she was entitled to a section 2640 reimbursement for using part of a separate inheritance to pay off an equity line of credit secured by a deed of trust against the family residence. Court reject all contentions and affirm.

Defendant David Garcia appeals from a judgment of conviction and sentence. A jury convicted Garcia of two counts of robbery and found true the allegation that Garcia reasonably should have known that the victim of one of the robberies was 65 years of age or older. After the jury found him guilty, Garcia admitted to having suffered a prison prior, a serious felony prior, and a strike prior. Court conclude that Garcia's challenges to his conviction are without merit. Further, under recent Supreme Court precedent, the trial court did not violate Garcia's right to a jury trial when it imposed the upper term. The conviction and sentence are therefore affirmed.

A jury convicted Douglas Vasquez of two counts of grand theft of an automobile (Pen. Code, 487, subd. (d)(1),[1]counts 1 and 5), two counts of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a), counts 3 and 6), and one count of selling a stolen vehicle ( 496d, count 4). He asserts the evidence does not support the count 6 unlawful driving conviction or, in the alternative, it was improper to convict him of count 6 because it is a lesser included offense to count 5; and the court's sentences imposed on counts 3 and 4 should have been stayed under section 654.

A jury convicted Eliseo Salgado of robbery (Pen. Code, 211)[1]and found that he personally used a firearm in the commission of the offense ( 12022.5, subd. (a), 12022.53, subd. (b)). The trial court sentenced Salgado to 13 years in prison: three years for robbery with a 10 year enhancement under section 12022.53, subdivision (b) for use of a firearm.

Salgado appeals, contending that the firearm enhancement must be stricken because: (i) a firearm use enhancement cannot apply if, as in Salgado's case, the use of the firearm itself transforms the offense from a petty theft (to which the enhancement is not applicable) to a robbery; and (ii) the evidence was insufficient to support the jury's finding that he used a firearm. Salgado also contends that his robbery conviction must be reversed because: (i) there was insufficient evidence to support the jury's finding that he was the perpetrator of the robbery; and (ii) the photographic array that the police showed to the eyewitnesses was unduly suggestive. As discussed below, Court find no merit to these contentions.

Petitioner Richard Shaputis was sentenced to a prison term of 15 years to life following his 1987 conviction for second degree murder. Shaputis, now nearly 71 years old, has been in prison for the past 20 years. Although Shaputis first became eligible for parole in 1998, the former Board of Prison Terms (now Board of Parole Hearings, hereafter BPH)--despite Shaputis's exemplary conduct in prison and his unblemished record of rehabilitative progress--found him unsuitable for parole at hearings conducted in 1997, in 2002, and finally in 2004. After the 2004 denial of parole by the BPH, this court granted Shaputis's petition for writ of habeas corpus because we found no evidence to support the BPH's conclusion that Shaputis would pose an unreasonable risk of danger to public safety were he released. (In re Shaputis (Dec. 28, 2005) D046356, opn. ordered nonpub. May 17, 2006 (Shaputis I).) However, this court did not order the BPH to set a parole date. Instead, we remanded the matter to the BPH with directions to hold a new parole suitability hearing and consider whether there was any new evidence, apart from the evidence available to it at the 2004 hearing, which might support a finding that Shaputis would pose an unreasonable risk of danger to public safety were he released from prison. (Id at pp. 19-21.)
The BPH held a new suitability hearing and, operating under the guidelines of Shaputis I, concluded he was suitable for parole because there was no new evidence supporting a conclusion he would pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger found Shaputis did pose an unreasonable risk of danger to society if released and reversed the BPH's decision. Shaputis filed a petition for writ of habeas corpus in the trial court, which was denied, and Shaputis now petitions this court for a writ of habeas corpus, challenging the Governor's decision. In the face of such evidence, Court are compelled to affirm the Governor's decision.

S.A. (the Mother) and K.A. (the Father) (together the parents) appeal orders of the juvenile court removing their minor children Mohamad A. and Mona A. (together the minors) from the Father's care following true findings made on a supplemental petition under Welfare and Institutions Code section 387. The parents challenge the sufficiency of the evidence to support the court's findings the previous placement with the Father was ineffective in protecting the minors and removal from the Father's custody was necessary to prevent substantial danger to them. Court affirm the orders.

Appellant Craig Christopher Leon was found in possession of 11.53 grams of heroin during a traffic stop of his truck. He was convicted of transportation and possession for sale and sentenced to the third strike term of 25 years to life. On appeal, he contends there is insufficient evidence of possession because his passenger could have placed the heroin in his vehicle without his knowledge. He also raises several challenges to the true findings on the two prior strike convictions, and argues the court abused its discretion when it denied his motion to dismiss one of the prior strike convictions. Court affirm.

On December 8, 2005, the Fresno County District Attorney filed an information in superior court charging appellant Rocky Julian Phelps, Jr., as follows: count Iunlawful taking or driving of a vehicle (Veh. Code, 10851, subd. (a)); count IIreceiving stolen property (Pen. Code, 496d, subd. (a)); count III misdemeanor resisting an officer (Pen. Code, 148, subd. (a)(1)); and counts IV and Vmisdemeanor hit run driving (Veh. Code, 20002, subd. (a)). On December 9, 2005, appellant was arraigned and pleaded not guilty to all counts.
The trial court imposed an upper term based on judicially found facts deemed constitutionally permissible under Apprendi, Blakely, Cunningham, and Black II. Therefore, resentencing is not required on count II. The judgment is affirmed.

A modification decision.

On February 16, 2006, the Kings County District Attorney filed a felony complaint in the Lemoore Division of superior court charging appellant as follows: count Iunlawful transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)); count IIunlawful possession of methamphetamine for sale (Health & Saf. Code, 11378); and count IIIwillful harm or injury to a child (Pen. Code, 273a, subd. (a)). As to counts I and II, the district attorney specially alleged that appellant was personally armed with a firearm (Pen. Code, 12022, subd. (c)) and that each offense precluded a grant of probation except in an unusual case (Pen. Code, 1203.073, subd. (b)(2)).
Court's independent review discloses no reasonably arguable appellate issues. [A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.) The judgment is affirmed.

On March 21, 2005, the Fresno County District Attorney filed a 12 count information in superior court charging appellant Joe Angel Noriega with multiple felonies and multiple attendant special allegations. On April 12, 2005, appellant was arraigned, pleaded not guilty to the substantive counts and denied the special allegations.
Even if the court had allowed extensive inquiry into the basis for I.P.s knowledge of crystal methamphetamine, it is not reasonably probable a result more favorable to appellant would have occurred given the strong direct and circumstantial medical and DNA evidence presented at trial. Reversal for alleged evidentiary error is not required. The judgment is affirmed.

On appeal, appellant Hector Adam Valdez contends that the trial court abused its discretion in denying his motion to withdraw his plea of guilty to armed robbery. Valdez claims his plea was entered on the mistaken belief that he would receive custody credits at the normal rate and serve only half of his seven-year sentence. Because Valdez admitted that he had personally used a firearm in the commission of the offense, however, he was statutorily limited to earning no more than 15 percent custody credits. (Pen. Code,[1] 2933.) Valdez claims he would not have entered his plea had he known of the statutory limitation. Court find no abuse of discretion and affirm.