CA Unpub Decisions

Andrew Cohen, a uniformed San Francisco police officer, appeals from a judgment denying his petition for a writ of mandate to compel the City and County of San Francisco, and its police department and chief of police, to rescind his temporary suspension without pay from December 8 until December 16, 2005. The suspension arose from a video Cohen made that parodied police department life in a manner that the chief of police found to be offensive and harmful to the departments image. Cohen contends that the trial court erred in finding that the suspension was authorized by the city charter and police department regulations. Court agree in part with Cohens contentions, and reverse the judgment.

Defendant appeals a June 27, 2006 order extending his commitment as a mentally disordered offender (MDO) to May 16, 2007, pursuant to Penal Code section 2972.[1] He contends the courts finding that he represented a substantial danger of physical harm to others is not supported by substantial evidence. Court reject the contention and affirm.

Oscar Castellanos (defendant) appeals his conviction and sentence. He claims that the trial court erred in denying his motion to suppress on the ground that it was untimely. He also contends that there was insufficient proof that a prior conviction qualified as a strike. Court affirm.

Appellant Katherine H. appeals from an order establishing a conservatorship of her person and estate on the ground she is gravely disabled as a result of a mental disorder. Appellant contends (1) she has been denied the right to a jury trial; (2) the evidence is insufficient to support the order appointing a conservator; and (3) the evidence is insufficient to support the portion of the order with respect to four of the six special disabilities imposed. For the reasons set forth below, Court vacate the order imposing the four special disabilities. In all other respects Court affirm.

Carmel Spiteri appeals pro se from a judgment entered following the granting of respondent Ray Canter's motion for summary judgment on a single cause of action. The motion was granted after the trial court had sustained without leave to amend demurrers to four other causes of action. The demurrers were filed by Canter and the following respondents: The State of California (State), the California Department of Corrections (CDC), the Parole and Community Services Division (PCSD), Dennis Acosta, and Victoria Wood. Appellant contends that the trial court erred in sustaining the demurrers and in granting the motion for summary judgment. Court affirm.

Barbara Walker appeals from the summary judgment entered in favor of defendant Washington Mutual Bank (Washington Mutual or the bank) in her action for breach of contract. Court hold that the trial court abused its discretion in sustaining certain hearsay objections and that triable issues of material fact precluded summary judgment. Court also conclude that Washington Mutual failed to carry its burden to demonstrate its entitlement to summary judgment as a matter of law. Accordingly, the judgment is reversed.

A jury convicted Edward Hunter of first degree murder in which a principal discharged a firearm causing death (count 1) and premeditated attempted murder (count 2), both committed to benefit a gang and in both of which a principal discharged and used a firearm. (Pen. Code, 187, subd. (a), 189, 12022.53, subds. (d), (e); 664, subd. (a), 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (e); all further undesignated section references are to the Penal Code.) The court sentenced Hunter to 50 years-to-life on count 1 (25 years-to-life for first-degree murder and a consecutive 25 years-to-life for the firearm and gang enhancements) and a concurrent term on count 2. Hunter appeals, contending that (I) insufficient evidence supports his convictions under the prosecutions trial theory that he was not a perpetrator but was guilty as an aider and abettor; (II) the court erred in not instructing the jury sua sponte that an aider and abettor can be guilty of a lesser crime than the perpetrator; and (III) the court prejudicially erred in letting the prosecutions gang expert testify that Hunters defense that he did not know the perpetrators planned to shoot was very, very highly, highly unlikely. Court reject these contentions and affirm the judgment.

A jury convicted defendant Sandra Prescott of possession of methamphetamine for sale. (Health & Saf. Code, 11378.) The trial court sentenced her to the low term of 16 months. On appeal, defendant contends the trial court improperly denied her motion to suppress evidence seized during a probation search. Court reject her contention and affirm.

A jury found defendant Noah Charles Church guilty of possessing heroin for sale, a felony (Health & Saf. Code, 11351), maintaining a place for selling/using heroin, a felony ( 11366), possessing a smoking device, a misdemeanor ( 11364), and possessing a hypodermic syringe without a permit, a misdemeanor (Bus. & Prof. Code, 4140). The jury found him not guilty of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)), being a felon in possession of ammunition (Pen. Code, 12316, subd. (b)(1)), and possessing heroin while armed with a loaded firearm ( 11370.1, subd. (a)). In a bifurcated proceeding, the trial court sustained allegations that defendant had two prior strike convictions (Pen. Code, 1170.12, 667, subds. (b)-(i)) and a prior narcotics conviction ( 11370.2, subd. (a)). After denying defendants motion to strike at least one of his prior strike convictions, the trial court sentenced him to an aggregate term of 28 years to life in prison, consisting of 25 years to life for possessing heroin for sale, plus a consecutive three years for the narcotics enhancement. Sentence on the remaining felony count was stayed pursuant to Penal Code section 654.
Defendant appeals, contending the trial court erred in failing to strike one or both of his prior strike convictions. Court affirm.

A jury found defendant Arthur Leonard Wilson guilty of corporal injury to a cohabitant in violation of Penal Code section 273.5, subdivision (a). The court sustained an allegation that defendant suffered a prior conviction. Defendant appeals the trial courts admission of portions of the victims 911 call as violative of his right to confrontation under the Sixth Amendment. Defendant also contends, and the People concede, that the trial court improperly sentenced him under section 273.5, subdivision (e)(1). Court affirm the judgment and, in accepting the Peoples concession, remand for resentencing.

Dena A., the mother of minors A.J. and F.A., appeals from an order of the San Joaquin CountyJuvenile Court terminating her parental rights. (Welf. & Inst. Code, 366.26, 395.) She contends the courts finding that the minors are adoptable is not supported by sufficient evidence. Court affirm the judgment (order terminating parental rights as to A.J. and F.A.).

James Edward Walker entered guilty pleas to sale of cocaine (count 1; Health & Saf. Code, 11352, subd. (a)), and possession of cocaine for sale (count 2; Health & Saf. Code, 11351.5). Walker admitted the truth of enhancements under Health and Safety Code section 11370.2, subdivision (a) and Penal Code section 1203.07, subdivision (a)(11); four prison priors within the meaning of Penal Code section 667.5, subdivision (b), and four serious/violent felony (strike) prior convictions within the meaning of Penal Code section 667, subdivisions (b)-(i).
At the time of sentencing the trial court denied Walker's motion to strike at least three of his serious felony prior convictions and sentenced him to an indeterminate sentence of 25 years to life plus seven years for the enhancements. The trial court imposed a concurrent 25-year-to-life sentence on count 2, possession of cocaine for sale. Walker appeals contending the trial court abused its discretion in declining to strike at least three of the serious/violent felony prior convictions; that the sentence imposed is cruel and unusual and that the enhancement imposed under Health and Safety Code section 11370.2 cannot be applied based on prior convictions for crimes in Illinois. Court reject each contention and affirm the judgment as modified to stay the sentence on count 2 pursuant to Penal Code section 654.

Salvardor P. Melendez seeks a writ of mandate directing the trial court to grant his request for a certificate of probable cause. Briefly stated, pursuant to a plea bargain, Melendez entered a plea of no contest to attempted murder with firearm and criminal street gang enhancements. At the sentencing hearing, Melendezs attorney requested a continuance to permit Melendezs family to hire new counsel, who assertedly would file a motion to set aside Melendezs no contest plea. The trial court granted a two-week continuance but, when new counsel failed to appear, denied a request for a second continuance and sentenced Melendez pursuant to the plea bargain. Melendez filed a notice of appeal in which he requested a certificate of probable cause, alleging the trial court erroneously denied the request for a continuance to permit Melendez to hire an attorney who would file a motion to set aside Melendezs no contest plea. The trial court failed to act on the request for a certificate of probable cause.
Here, notwithstanding Avals stated purpose in seeking the continuance on Melendezs behalf, or Melendezs framing of the issue in his request for a certificate of probable cause, Arfa never appeared and Melendez never delineated any basis for the motion to withdraw the plea. Accordingly, we agree with the rule stated in Osorio and Vera and conclude Melendez did not require a certificate of probable cause in order to appeal the trial courts denial of his request for a continuance of the sentencing hearing.
Court therefore need not address whether the trial court erred in refusing to issue a certificate of probable cause.
The petition for writ of mandate is denied as moot.

Darrell Lee Smith appeals from the judgment (order of commitment) entered following a court trial in which he was determined to be a mentally disordered offender. (MDO; Pen. Code, 2962 et seq.) He was committed to the California Department of Mental Health for treatment as a condition of his parole. (Pen. Code, 2966, subd. (b).)
Court appointed counsel to represent him in this appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. The judgment (order of commitment) is affirmed.