CA Unpub Decisions

Defendant was convicted following a jury trial of attempted murder (Pen. Code, 664/187, subd. (a)), assault with intent to commit forcible oral copulation (Pen. Code, 220, 288a, subd. (c)), attempted forcible oral copulation (Pen. Code, 664/288a), three counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)), and false imprisonment (Pen. Code, 236), with associated enhancements for personal use of a deadly weapon (Pen. Code, 12022, subd. (b)(1)).[1]The trial court subsequently found that defendant suffered prior convictions (Pen. Code, 1170.12, subd. (c)(1), 667, subd. (a)), and served a prior prison term (Pen. Code, 667.5, subd. (b)). He was sentenced to an aggregate term of 27 years in state prison. Defendant argues in this appeal that evidence of two uncharged sexual assaults was erroneously admitted by the trial court, proffered defense impeachment evidence was improperly excluded, and a prior prison term enhancement should have been stricken rather than stayed. In a supplemental brief he adds the argument that the court violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856](Cunningham), by imposing an upper term on count 1. Court conclude that the trial courts evidentiary rulings were not an abuse of discretion, and no prejudicial sentencing error occurred in the imposition of an upper term on count 1, but Court must strike the Penal Code section 667.5 prior prison term enhancement. The judgment is otherwise affirmed.

Ahn v. Kim
Filed 7/12/07 Ahn v. Kim CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

HYUNSOO KENNETH AHN,

Plaintiff and Respondent.

v.

HYUN SOO KIM,

Defendant and Appellant.
A115805

(San Francisco County

Super. Ct. No. 435400)


I.

INTRODUCTION

Appellant Hyun Soo Kim appeals in propria persona from an adverse judgment after the trial court denied his motion to set aside a default judgment entered against him, following his failure to appear at trial. Relying on Code of Civil Procedure section 473, subdivision (b) (section 473(b)), appellant contends that the trial court abused its discretion in denying his motion because his failure to appear was the result of insufficient notice. The court denied appellants written motion after declining to hear oral argument when appellant failed to comply with the notice requirements of California Rules of Court, rule 3.1308(a)(1). Court affirm the trial courts denial of appellants motion to set aside the default judgment.

Defendant appeals from a judgment following revocation of probation. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to appellant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) He has been advised by appellate counsel that a Wende brief would be a filed. A copy of the brief was mailed to him, and he was advised that he could file a supplemental opening brief of his own within 30 days, raising issues before this court. Court have not received a supplemental brief from the defendant. Court affirm.

Aminder Singh Sandhu was charged with one felony count of assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) and, in a negotiated disposition, pled no contest in exchange for probation with a 90 day jail term, a firearm prohibition, and domestic violence probation terms ( 1203.097). He appeals the ensuing sentence, claiming abuse of discretion in the courts imposition of a warrantless search condition. Court find no abuse of discretion and affirm.

The Chinese Daily News was sued for libel and related causes of action arising out of a newspaper article concerning the kidnapping of Bingzhang Wang. The Chinese Daily News prevailed in its motion under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuits against public participation) statute, and was awarded attorney fees. In two consolidated appeals, appellants argue (1) that the court erred in granting the anti-SLAPP motion because they established a probability of prevailing on the merits and (2) that the attorney fees award was not reasonable.
Court conclude that appellants fail to show a probability of prevailing on the merits because the allegedly defamatory article is privileged under Civil Code section 47. Court also hold that the attorney fees award is not supported by substantial evidence. Court affirm the order granting the anti-SLAPP motion and reverse the order granting attorney fees.

Following a court trial, appellant was found to be a sexually violent predator (SVP), within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, 6600 et seq.).[1] He was committed to the Department of Mental Health for two years. This appeal followed.
The SVPA defines a sexually violent predator as a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. ( 6600, subd. (a)(1).) Pursuant to that definition, the People had to establish: (1) at least two prior sexually violent offenses; (2) a current predisposing mental disorder, and (3) a likelihood that sexually violent criminal behavior would be repeated upon release. (Hubbartv. Superior Court (1999) 19 Cal.4th 1138, 1144-1145, 1162 (Hubbart).)
Appellant contends: (1) There was insufficient evidence that he suffered from a current mental disorder. (2) The trial court relied partly on unreliable, inadmissible hearsay evidence about an earlier uncharged crime. (3) The Static-99 test for predicting sexual recidivism is unreliable. (4) There was insufficient evidence that he was likely to reoffend. (5) The SVPA violates the ex post facto clause. (6) The SVPA violates the equal protection clause.
Court find no merit in the contentions, and affirm.

A jury convicted respondent Manuel Turcios of attempted premeditated and deliberated murder, kidnapping, and robbery. The trial court denied respondents motion for new trial with respect to the robbery count, but granted it as to the attempted murder. The People (appellant) appeal from that grant of new trial. Court reverse.

Court hold that compliance with former Insurance Code section 791.10, subdivision (a)(1), which governs adverse underwriting decisions, was not sufficient to constitute compliance with former Insurance Code section 677, which governs the cancellation of a homeowners insurance policy. Under Lee v. Industrial Indemnity Co. (1986) 177 Cal.App.3d 921 (Lee), strict compliance with former section 677 was required in order to cancel a homeowners insurance policy. Court reverse a trial court order striking class allegations.

The Los Angeles District Attorney charged Ledale A. Smith (appellant) in an amended information with second degree burglary of a Los Angeles County Metropolitan Transportation Authority (MTA) bus (count 1, Pen. Code 459) and with petty theft with a prior (count 2, 666). The information also alleged that appellant had previously been convicted of a serious or violent felony within the meaning of the Three Strikes Law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had suffered a prior conviction pursuant to section 667.5, subdivision (b).
Appellant testified at his trial. He testified that while waiting to catch the metro at the Vermont station, he saw a black male riding a bicycle away from the direction of the Rosa Parks station. Appellant testified that the person on the bicycle was wearing a sports jacket and wearing a baseball cap, which matched the description of the suspect. Appellant said the man stopped by some bushes across the street, reached into the bushes with his arm and sped away. Appellant then looked into the bushes and found a key, a cell phone and a booklet of bus passes. After finding the items, appellant boarded the train and got off at Imperial station where he was planning to turn the items over to the police. Appellants remaining arguments represent his dissatisfaction with the result of the trial and raise no recognizable claim of error. Court have examined the entire record and are satisfied that appellants attorney has fully complied with the responsibilities of counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.

Maricela P. and Umberto M. (appellants) appeal the orders of the juvenile court declaring certain children dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b), (c), (d) and (j) and removing them from their custody pursuant to section 361, subdivision (c)(1) and (c)(4). They contend that the courts findings are not supported by substantial evidence. Court affirm the judgment.

Cecilio R. (Father) and Stephanie T. (Mother) appeal from the order terminating their parental rights as to Teresa and Martha, who were three and two years old at the time of the order. Appellants argue that the order is not supported by substantial evidence in that the Welfare and Institutions Code section 366.26, subdivision (c)(1), exception applies. Substantial evidence supports the juvenile courts determination, and the orders terminating parental rights affirmed.

A jury found defendant Paul Lawrence Alexander guilty of two counts of aggravated sexual assault of a child (rape by force in violation of Penal Code section 269, subdivision (a)(1); undesignated section references are to the Penal Code), and oral copulation by force in violation of section 269, subdivision (a)(4), and three counts of lewd acts on a child under the age of 14 in violation of section 288, subdivision (a). The court denied defendants motion for new trial and sentenced him to an aggregate term of six years consecutive to 30 years to life in state prison. On appeal, defendant contends (1) he was denied his right to testify on his own behalf and (2) he was denied due process by virtue of the ineffective assistance of his counsel. Court affirm the judgment.

Defendant appeals from a conviction of attempting to deter an executive officer from his or her duty. (Pen. Code, 69.) LaFavor argues that the trial court erred in not providing a unanimity instruction. He contends that the instruction was required because his resistance involved two distinct incidents of conduct. As a result, the jury could have reached different judgments as to which act formed the basis for their verdict. LaFavor argues that the omission of this instruction deprived him of his constitutional rights to due process and a unanimous jury verdict. He additionally argues that the trial court violated his Sixth Amendment right when it imposed the upper term based on facts not decided by a jury. Court conclude that the unanimity instruction was not required, but, that even if it were, the omission resulted in harmless error. Court also conclude any error under the Sixth Amendment harmless beyond a reasonable doubt. Court affirm the judgment.

Travis Manuel (defendant), appealed from a conviction of mayhem. Defendant contended that the court abused its discretion in sentencing him to the upper term of imprisonment. In an opinion filed June 23, 2004, Court affirmed the judgment, holding that battery with serious bodily injury is a lesser-included offense of mayhem and aggravated mayhem, but the evidence still did not warrant the instruction. Court also held that the court did not err in sentencing.
The trial courts sentence is vacated and the matter remanded for resentencing in accordance with Blakely and Cunningham.