CA Unpub Decisions

On February 24, 2006, an information was filed by the Santa Clara District Attorney alleging that defendant Robert Clifton Stancil resisted, delayed, and obstructed a peace officer in the discharge of his duties, a misdemeanor (Pen. Code, 148, subd. (a)(1)) and drove and took a vehicle, a felony (Veh. Code, 10851. subd. (a)). Defendant waived his right to a preliminary examination and pleaded no contest on April 24, 2006, to resisting, delaying and obstructing an officer in the performance of his duties, a misdemeanor (Pen. Code, 148, subd. (a)(1)), and unauthorized use or theft of a vehicle, a felony (Veh. Code, 10851, subd. (a)). Defendant was placed on formal probation for three years on condition that he serve the stipulated term of 90 days in jail with credit for 12 days, along with additional terms and conditions. Defendant filed a timely notice of appeal and we appointed counsel to represent defendant in this court.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelley (2006) 40 Cal.4th 106, Court have reviewed the entire record and have concluded that there is no arguable issue on appeal. The judgment is affirmed.

Defendant appealed from a judgment following pleas of guilty and imposition of a ten year state prison term: the upper term of eight years on count one, and a two year consecutive term on count two. His counsel raised no issues and asked 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. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Upon review of the record we found no arguable issues, although we ordered an amendment of the abstract of judgment to require AIDS testing. We subsequently granted defendants petition for rehearing to consider the impact of the decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), upon defendants sentence. We concluded that under Blakely the upper term imposed upon defendant must be vacated, but otherwise affirmed the judgment as amended. The California Supreme Court then transferred the case back to this Court for reconsideration in light of People v. Black (2005) 35 Cal.4th 1238 (Black). In accordance with the opinion in Black Court found no error in the imposition of upper and consecutive terms under the California Determinate Sentencing Law (DSL), and therefore vacated our prior opinion and affirmed the judgment of the trial court.

Defendant was convicted following a jury trial of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), misdemeanor assault (Pen. Code, 240), and making a criminal threat (Pen. Code, 422).[1] He received a four-year upper term for assault with a deadly weapon, a three-year concurrent upper term for the conviction of making a criminal threat, and 180 days in county jail for the misdemeanor assault conviction. In a prior appeal we reversed the conviction of making a criminal threat for lack of supporting evidence of the victims sustained fear, but otherwise affirmed the judgment. Bound by the California Supreme Court opinion in People v. Black (2005) 35 Cal.4th 1238 (Black), we concluded that defendant was not denied his due process rights to a jury trial and finding of guilt beyond a reasonable doubt under [Blakely v. Washington (2004) 542 U.S. 296] by the trial courts imposition of an upper term.
The United States Supreme Court then reversed Black in Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856](Cunningham), and concluded, Contrary to the Black courts holding, our decisions from Apprendi[] to Booker[] point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Cunningham, supra, 166 L.Ed.2d 856, 876.) This case has now been remanded to us for further consideration in light of Cunningham. Court conclude that no prejudicial sentencing error occurred and affirm the judgment.

In September 2004, Harold Joseph Adler was informed by the California Department of Justice that he is required to register as a sex offender based on a 1984 conviction for the distribution of child pornography that was dismissed pursuant to Penal Code section 1203.4 following Adlers successful completion of probation. Adler thereupon successfully sought a declaration that he need not register for the commission of what is now a registerable offense but was not so when he committed the offense or when his conviction was expunged under section 1203.4. The superior court entered a permanent injunction prohibiting Adlers prosecution for failing to register. The Attorney General appealed, and during the pendency of the appeal there have been several amendments to the relevant provisions of the Penal Code. We conclude that under current section 290, subdivision (a)(2)(F), Adler is subject to the sex offender registration requirements unless and until he obtains a certificate of rehabilitation under section 290.5. This interpretation of the statute does not violate the ex post facto provisions of the state or federal Constitutions on the basis urged by Adler. Accordingly, Court reverse the judgment.

Defendant was convicted of five felonies including residential burglary, robbery, assault with a vehicle likely to produce great bodily injury, and evading a police officer. As a third strike defendant, he was sentenced to 80 years to life imprisonment. He challenges his convictions for robbery and assault with a deadly weapon and several aspects of his sentence. Court affirm.

Plaintiff appeals from a judgment entered in favor of defendant Shindaiwa, Inc. (Shindaiwa) on his complaint for negligence and strict product liability. He contends the trial court erred by limiting the testimony of his expert witnesses and by failing to include separate interrogatories on the verdict form addressing his claim for negligent failure to warn. Court affirm.

Appellant was convicted, following a jury trial, of possession for sale of methamphetamine and maintaining a place for selling or using methamphetamine. On appeal, he contends (1) the evidence was insufficient to support either of his convictions; and (2) the trial court erred in failing to instruct the jury, sua sponte, that mere access to an object is not sufficient to support a finding of unlawful possession. Court affirm the judgment.

Appellant contends the trial court erred in granting summary judgment against her claims of wrongful termination of employment, and related claims. Court affirm.

A modification decision.

Defendant appeals from a judgment convicting her of several offenses including assault with a deadly weapon on a police officer and second degree robbery. She contends that the trial court erred in failing sua sponte to instruct the jury on the lesser included offense of assault on a police officer and that there is insufficient evidence to support her robbery conviction. She also argues that the trial courts imposition of an upper term sentence violated her constitutional right to a jury trial under (Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 546 U.S.[127 S.Ct. 856] (Cunningham).) Court conclude that the trial court did not err in instructing the jury and that substantial evidence supports defendants robbery conviction, but that the imposition of an upper term sentence violated defendants constitutional right to a jury trial as construed in Blakely and Cunningham. Accordingly, Court affirm the conviction and remand for resentencing.

Appellant appeals from the judgment entered after his guilty plea. His counsel raises no issues and asks this court for an independent review of the record as required by People v.Wende (1979) 25 Cal.3d 436. Our independent review of the record reveals no arguable issues. Accordingly, the judgment is affirmed.

David Hanhan appeals from a superior court order prohibiting him from coming within 100 yards of Eon King. Hanhan argues that the 100 yard stay away order should be modified due to the proximity of his sons school to Kings house, as well as his mistake in failing to appear at a court hearing. Hanhan also wishes to subpoena witnesses and introduce evidence. Court affirm.

Following a hearing on the propriety of terminating appellant Kevin Ray Whites probation, the Marin County Superior Court terminated his probation as unsuccessful. Appellant challenges the courts designation of unsuccessful and asks that this label be stricken from the record. Court direct that the designation unsuccessful be stricken from the termination order.

This is the fifth appeal resulting from the litigation between Rainer Joachim Faerber and Thomas F. Hyde and The Hyde Law Firm (Hyde). This protracted litigation began with a vehicle accident between Faerber and a third party. Faerber settled the lawsuit and sued his former counsel, Hyde, for legal malpractice. Hyde filed a cross complaint against Faerber for unpaid attorney fees. The trial court granted Hydes motion for judgment on Faerbers pleadings, and Court reversed in Faerber I. Once the matter returned to the lower court, Hyde moved for summary judgment, which the trial court granted in 2003. Court affirmed in Faerber II. The trial court conducted a bench trial on Hydes cross complaint for attorney fees and ruled in favor of Faerber.