CA Unpub Decisions

Defendant Michael Christopher Fields appeals from a judgment sentencing him to prison for burglary. We appointed counsel to represent defendant. Counsel filed a brief containing a statement of the case and the facts and, while not arguing against her client, failed to raise any specific issue. Court gave defendant 30 days to file written argument on his own behalf. That period has passed and Court have received no communication from him. Under People v. Wende (1979) 25 Cal.3d 436, Court have examined the entire record to see if any arguable issue is present. The judgment is affirmed.

Before transferring them to this division of the Fourth District Court of Appeal, our colleagues in Division 2 wisely consolidated these three appeals because they constitute essentially one case -- a case that has gone on about eight years now and manifested itself in no less than four different trial-level courts and no less than five separate proceedings. (And still hasnt been authoritatively decided!)
The case about which we speak is the claim of the wife of a doctor that a certain item of real property (two contiguous parcels known in this litigation as the Riverside Property, which was operated as a pre school until 2003) was community property in which she has an interest.
The single judge who will take over this case in the San Bernardino court is encouraged to use the courts full lawful powers, including contempt if necessary, to prevent such scofflawry from happening in the future.

This action involves a franchise agreement to operate a CoolBrands Smoothie franchise in San Jose, California. After a lawsuit was filed against the franchisor and others, the court denied a motion to stay the litigation and compel arbitration in New York pursuant to the agreement's arbitration provisions. The question before us is whether the agreement to arbitrate, which is subject to the Federal Arbitration Act (FAA) (9 U.S.C., 1 et seq.), is valid and enforceable as claimed on appeal or unconscionable as implicitly found by the trial court. The order denying the motion to compel arbitration is affirmed.

After a jury trial, defendant Thomas Lee Horton was convicted of 40 felony and misdemeanor counts involving eight minor victims, including 10 felony counts of lewd acts upon a child (Pen. Code, 288, subd. (a)),[1] two felony counts of criminal threats ( 422), 13 counts of misdemeanor child molestation ( 647.6, subd. (a)), 13 counts of misdemeanor indecent exposure ( 314), and two counts of misdemeanor dissuading a witness ( 136.1, subd. (b)(1).)
The People concede defendants claim of sentencing error, and for reasons that Court explain Court find the concession appropriate. Court find no merit in defendants remaining contentions regarding Christinas testimony, for reasons Court also explain. Therefore, Court reverse the judgment and remand for the limited purpose of resentencing.

A jury convicted appellant Albert Sandner of first degree murder (Pen. Code, 187, 189). The court imposed a prison term of 25 years to life.
On appeal, appellant contends (1) he was denied his constitutional right to the effective assistance of counsel by his trial counsels failure to object to certain evidence elicited on cross-examination and recross-examination of an expert witness testifying for the defense, and (2) the abstract of judgment and sentencing hearing minute order incorrectly state that appellant was sentenced to life without possibility of parole. Court direct the trial court to issue an amended abstract of judgment and amended sentencing minute order, and otherwise affirm.

U.S. Supreme Court decision invalidating California Determinate Sentencing Law to extent it permits imposition of upper prison term other than on basis of prior convictions or facts found by a jury or admitted by defendant created a new procedural rule, which does not apply to cases in which direct appeals were exhausted before decision was handed down.

A jury convicted defendant Lamont Carter of robbery. The trial court sustained recidivist allegations that doubled the imposed middle prison term and added five years to it.
The defendant contends that evidence of the victims reasonable fear is insufficient (as is evidence of force with respect to one item of the victims property); that the court erred in failing to instruct on reasonable fear on its own motion; and that the court improperly instructed on the lesser offense of grand theft rather than some species of petty theft because his appropriation of the victims property was not theft from the victims person. Court affirm.

A petition alleged minor Daniel A. committed one count each of assault by means likely to produce great bodily injury and assault with a deadly weapon (Pen. Code, 245, subd. (a); all further references are to this code unless otherwise stated; counts 1 & 2), made criminal threats ( 422; count 3), participated in a street gang ( 186.22, subd. (a); count 4), and committed vandalism ( 594; count 5). It also alleged all but count 4 were committed for the benefit of a street gang ( 186.22, subds. (b), (d)) and that counts 1 and 3 were hate crimes ( 422.75, subd. (b)). After a hearing, the court found all allegations to be true. The only ground for minors appeal is exclusion of character evidence about one of the victims. He contends the court erred in finding the testimony irrelevant and barring it under Evidence Code section 352, exclusion violated his constitutional right to put on a defense, and the error was prejudicial. Court disagree and affirm.

Following an appeal and a remand by this court, the trial court sentenced appellant to a state prison term of 27 years to life for one count of attempted felony false imprisonment. (Pen. Code, 664, 236 to 237.) Appellant contends that the trial court erred in denying his request to have a new probation report prepared and that his sentence constituted cruel and unusual punishment. Court affirm.

Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. (People v. Buckhalter (2001) 26 Cal.4th 20, 30, citing People v. Bruner (1995) 9 Cal.4th 1178, 1180 (Bruner) and Penal Code sections 2900, subd. (c), 2900.1, and 2900.5, subds. (a), (b).) The trial court in this case sentenced defendant Ray Eleigh Levell to three years in prison based on his conviction for false imprisonment (Pen. Code, 236, 237) and a prior prison term enhancement (Pen. Code, 667.5, subd. (b)).[1] The court awarded 194 days of presentence credit, but no credit for time served during a presentence parole revocation term. Defendant appeals from the trial courts post judgment order denying his motion for additional presentence credit. Court conclude that defendant has shown that 108 days of his parole revocation term were solely attributable to the same conduct that led to his conviction and sentence in this case. court therefore find that the trial court erred in denying additional presentence credit and direct the court to modify the abstract of judgment accordingly.

Defendant was convicted by a jury of one count each of possession of a firearm by a felon and misdemeanor possession of a smoking device. He contends the prosecutor committed prejudicial misconduct by misstating the definition of reasonable doubt during closing argument. Court affirm.

Arnold Malter appeals from an order granting respondent Barry Willdorfs special motion to strike (Code Civ. Proc., 425.16). Because Malters notice of appeal was not timely filed, Court lack jurisdiction to consider his appeal. Accordingly, the appeal is dismissed.

The Workers Compensation Appeals Board (Board) issued an order denying reconsideration of a decision by a workers compensation Judge (WCJ) awarding Vincente Ruiz permanent disability based on the 1997 rating schedule that was in effect on the date of his injury in 2004. Ruizs employer, Lyngso Garden Materials, Inc., and its workers compensation carrier, Travelers Indemnity Company of Connecticut (collectively, Lyngso), argue that the Board should have applied the new permanent disability rating schedule that went into effect on January 1, 2005. (Lab. Code, 4660, subdivision (d).) Court agree and annul that portion of the award.

After he was convicted of several offenses and sentenced to a total of 19 years 8 months in prison, appellant Mark Delroy Daley filed an appeal. In an opinion filed March 13, 2007, this court affirmed the conviction but determined the case had to be remanded for resentencing pursuant to Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856]. (People v. Daley (Mar. 13, 2007, A109917) [nonpub. opn.].)
On April 3, 2007, before our decision was final, the trial court issued a notice of hearing and transportation order scheduling further proceedings in the case on April 19, 2007. (See Cal. Rules of Court, rule 8.264(b)(1) [Court of Appeal decision is final in that court 30 days after filing of opinion].) At the April 19, 2007 hearing, the trial court stated it had conferred with counsel and understood the Appellate Court had determined a new sentencing hearing was required. The court then conducted a new hearing on May 17, 2007, at which it sentenced appellant once again to an aggregate term of 19 years 8 months imprisonment.
An appellate court has inherent power to grant a motion for summary reversal, even of criminal judgments, in an appropriate case. (People v. Browning (1978) 79 Cal.App.3d 320, 323.) Because the trial court lacked jurisdiction to resentence appellant, the sentence it imposed on May 17, 2007, reflected in the June 11, 2007 abstract of judgment, is null and void, and the matter must again be remanded for resentencing.