CA Unpub Decisions

The issue presented in this case is whether the trial court erred in finding the defendants statements obtained in violation of Miranda were nevertheless voluntary and thus admissible to impeach his testimony at trial. Court find his statements were voluntary and accordingly affirm the convictions. However, Court order the abstract of judgment corrected to delete the one year term erroneously added to the One Strike sentence imposed on the forcible sex offense count. As so modified, Court affirm.

This is an appeal from a default judgment and underlying orders. Court affirm.

Defendant and appellant Clellan James Hall appeals from the judgment sentencing him to three years in prison following his plea of no contest to committing a lewd act upon a child under the age of 14 years and misdemeanor unlawful touching, and subsequent revocation of probation. Defendant contends: (1) the finding that defendant was in possession of a firearm was not supported by substantial evidence; (2) it was an abuse of discretion to sentence defendant to prison rather than reinstate probation; (3) the record does not clearly indicate that the trial court understood it had discretion to reinstate probation; and (4) there was not an adequate statement of reasons for imposing a prison term. Court affirm.

Lawrence Flores (Flores) appeals the judgment entered following a jury trial which resulted in his conviction of attempted, willful, deliberate, premeditated murder (Pen. Code, 664/187, subd. (a)), during which he personally used and discharged a firearm ( 12022.53, subds. (b) & (c)) and a principal used and discharged a firearm causing great bodily injury ( 12022.53, subds. (b), (c), (d) & (e)(1)); assault with a firearm ( 245, subd. (a)(2); and mayhem ( 203), during which he personally used and discharged a firearm ( 12022.53, subds. (b) & (c)) and a principal used and discharged a firearm causing great bodily injury ( 12022.53, subds. (c), (d) &(e)(1)); and the jurys findings each of the crimes had been committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)). The trial court sentenced Flores to life in prison with the possibility of parole.
Court remand the matter to the trial court to correct the abstract of judgment to properly reflect the sentence imposed and direct the court to send a certified copy of the corrected abstract of judgment to the Department of Corrections. In all other respects, Court affirm the judgment.

When two sheriffs deputies spotted a speeding car and started to follow it, the car abruptly pulled over and stopped. The passenger got out of the car, dropped a shotgun to the ground, and ran off. The driver (Ricardo Sanchez) stayed at the scene and was arrested. After waiving his rights, Sanchez told the deputies that they had the shotgun for protection. The unregistered 12-gauge short-barreled shotgun was loaded, and the deputies found four live 12-gauge shotgun rounds on the floorboard of the drivers side of the car. Sanchez was arrested and charged, and later convicted of carrying a loaded unregistered firearm in a vehicle (count 2), possession of a firearm by a felon (count 3), and possession of ammunition by a felon (count 4), with true findings on allegations that he had suffered one prior strike and served one prior prison term. (Pen. Code, 12031, subd. (a)(1), 12021, subd. (a)(1), 12316, subd. (b)(1), 667, subds. (b)-(i), 667.5, subd. (b).)[1] He was sentenced to state prison for a term of eight years, four months. Sanchez appeals, claiming there were sentencing errors. Court disagree and affirm the judgment.

James Robert Howe appeals from the judgment of the trial court denying his petition for writ of administrative mandate that challenged the one-year suspension of his driving privilege imposed by the California Department of Motor Vehicles (the Department). The suspension was occasioned by a determination that on August 21, 2005, Howe had a blood alcohol content (BAC) exceeding the legal limit of .08 percent while driving a motor vehicle. (Veh. Code, 13559.) Howe contends that he carried his burden at the administrative hearing to rebut the presumption that his BAC was over the legal limit. (Veh. Code, 23521, subd. (b).) Court disagree and affirm the judgment.

James Young appeals from a judgment entered after the trial court granted summary judgment in favor of State Farm Fire and Casualty Company (State Farm) in this action alleging breach of an insurance contract and bad faith. Young contends the trial court improperly excluded declarations from his expert witnesses and resolved factual disputes which should have gone to the jury. Court affirm the summary judgment on two grounds: First, the appellants appendix Young submitted on appeal which includes a selective and small portion of the papers and exhibits he filed in opposition to State Farms summary judgment motion and none of State Farms moving or reply papers is inadequate for this court to review the trial courts order granting summary judgment. Second, in considering the respondents appendix State Farm submitted to assist this court in reviewing the merits of the matter, Court find State Farm met its burden on summary judgment and Young has not shown a triable issue of material fact on either of his causes of action.

A police officer was accused of failing to process a citizen complaint against a fellow officer and then lying about it to her superiors and to internal affairs investigators. She was timely served with a personnel complaint containing the specific accusations against her. The complaint stated the officer was being demoted from her position as a Sergeant I to Police officer III pending a hearing before and decision by a Board of Rights on the charges. After a hearing, the Board of Rights recommended her removal from the police force and the chief of police accepted the Boards recommendation. The officer filed a petition for writ of mandate, claiming the Boards guilty findings were not supported by the weight of the evidence. She also argued she did not receive a fair hearing in the penalty phase because termination was the expected and thus predetermined discipline for all officers ordered to a Board of Rights by the chief of police. The trial court found the officers claims without merit and denied her petition for a peremptory writ of mandate. On appeal, the officer expressly abandons the arguments she made in the trial court. She instead contends the order of termination must be reversed because she first received notice of removal as the proposed discipline outside the one year limitations period for providing such notice. Court conclude she has forfeited her right to make this claim for the first time on appeal by failing to raise her statute of limitations (lack of notice) defense in either the administrative proceedings or in the trial court. Accordingly, Court affirm.

In 1998, appellant Roderick C. Elder was charged with a violation of Health and Safety Code section 11350, subdivision (a), possession of cocaine. The information also alleged that he had suffered three prior felony convictions within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and one prior felony conviction within the meaning of Penal Code section 667.5, subdivision (b). A jury convicted appellant of the Health and Safety Code violation, and the court found true two of the strike priors, including a conviction for violation of Penal Code section 459, in Case No. A617997. Appellant was sentenced to 25 years to life. He appealed, and in June 2000, Court affirmed.

Appellant Sandra M. (mother) is the mother of nine children who have been in the dependency system. She appeals from the order of the juvenile court that terminated her parental rights over three of her children, Yanira F., Anthony F., and Bryan S. Mother contends the juvenile court erred in failing to apply the exception to adoption found in Welfare and Institutions Code section 366.26, subdivision (c)(1)(A). Court affirm the order.

On January 27, 2006, defendant negotiated a plea bargain agreement pursuant to which defendant pleaded no contest to manslaughter (Pen. Code, 192) and admitted using a firearm (Pen. Code, 12022.5, subd. (a)(1)) in exchange for a sentence of 15 years in state prison. In negotiating the plea, the prosecution presented defendant with a spreadsheet calculation showing that under the terms of the proposed agreement, defendant, with custody credits earned, would serve only an additional 1.17 years before he would be released on parole. Defendant accepted the plea bargain based upon this representation. Court grant the petition and remand for resentencing.

Appellant Jacqueline G. appeals from orders denying her petition under Welfare and Institutions Code section 388 and terminating her parental rights to her daughter, Amanda G., under section 366.26. She contends that because her section 388 petition showed both significantly changed circumstances and that reunification was in Amandas best interest, the dependency court abused its discretion in denying her petition. She also maintains that the dependency court used an incorrect standard in evaluating and determining her petition. Court find no error or abuse of discretion and affirm.

Cross-defendant James Kay appeals from an order denying his motion to set aside a judgment entered June 5, 2000, in favor of cross-complainant Floyd Rothenberger and Texas Bar-B-Que, Inc. (collectively Rothenberger). The judgment awarded Rothenberger $245,000 in compensatory damages and $185,000 in punitive damages.

After two years of litigation, Kay gave notice he was proceeding in propria persona and gave his address as a post office box where he could receive service of process. Documents subsequently sent to that address by the court and counsel were returned to the sender as undeliverable. Meanwhile the claims on the underlying complaint were settled and the case on Rothenbergers cross-complaint proceeded to trial in Kays absence after the trial court found sufficient proof Kay had been given notice of the trial date. Four and one-half years after judgment was entered, Rothenbergers assignee, respondent herein, recorded the judgment, which was mailed to Kays home address. A few months later, Kay filed a motion to set aside the judgment for failure to give notice of trial as required by Code of Civil Procedure section 594.[1]

On appeal, Kay contends the judgment against him must be set aside because he was not served with notice of trial, return of mail by the postal service does not excuse failure to give written notice of trial, the possibility that notice of trial was misfiled does not excuse its absence from the courts file, and a judgment for failure to comply with section 594 is void and can be set aside at any time.

Respondent makes no appearance on appeal. Nevertheless, after considering Kays contentions and reviewing the record, we find the trial court properly denied Kays motion because the judgment was voidable not void, the motion to set aside the judgment was filed five years after entry of judgment, and Kays absence from trial was due to his own inexcusable neglect in failing to provide the court and counsel with an address where he could be reached knowing the matter was nearing a trial date and never once contacted the court or counsel in the following five years to provide a change of address or inquire about the status of the case. Court therefore affirm the courts order denying Kays motion.

Defendant Gabriel Isaac Gumpfer and his companions stole two fish filters and gift cards from a pet store. A jury found defendant guilty of second degree burglary and theft with a prior. (Pen. Code, 459, 666.) The court sentenced defendant to the upper term of three years on the burglary count and doubled the sentence because of a prior strike. The court sentenced defendant to two years for the theft with a prior and doubled the sentence because of the prior strike, but stayed sentence pursuant to section 654. Defendant appeals, claiming the court erred by imposing the upper term based on facts not found by the jury. Court affirm the judgment.