CA Unpub Decisions

Defendant was convicted after jury trial of possessing a deadly weapon (a billy club); he admitted two prior strikes and a prior prison term. (Pen. Code, 12021, subd. (a)(1); 667, subds. (b)-(i); 667.5.) The trial court exercised Romero[2]discretion and dismissed both of the strikes pursuant to section 1385 and sentenced Foletti to an aggregate term of four years imprisonment. The People appealed, challenging the trial courts decision to dismiss the strikes. Foletti cross-appealed, arguing that his trial counsel was ineffective and that a unanimity instruction should have been given sua sponte. Court conclude that it is necessary to remand for resentencing because the trial court failed to state in the minute order the reasons supporting its decision to dismiss the prior strikes. Section 1385, subdivision (a) provides that [t]he reasons for the dismissal must be set forth in an order entered upon the minutes. The provision is mandatory. (People v. Humphrey (1997) 58 Cal.App.4th 809, 811 (Humphrey).) The rest of the issues raised by the parties fail.

On July 22, 2006, appellant David C. and another juvenile approached nine year old Zachery F. at a skate park in Hanford and pushed him against a fence. David then reached into Zacherys pants pocket and took $10. Zacherys friend followed David and his friend to a restaurant and retrieved $6 from David, which he gave back to Zachery. Following independent review of the record Court conclude that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

On September 3, 2004, appellant, Juan Carlos Diaz, was a passenger in a car that was stopped by a highway patrol officer in Merced County. During the stop, Diaz admitted smoking marijuana in the car a short time earlier. An ensuing search of Diaz uncovered a plastic bag containing a small amount of methamphetamine. Diaz was arrested for transportation of methamphetamine (case No. 29931) and on an outstanding misdemeanor warrant. Further, following independent review of the record Court find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

A modification decision.

Defendant was convicted of possession for sale of methamphetamine and marijuana. He admitted two prior strikes (Pen. Code, 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)), three prior felony convictions (Health & Saf. Code, 11370.2, subd. (a)), and three prior prison terms (Pen. Code, 667.5, subd. (b)). He appeals claiming the court erred by failing to conduct an in camera hearing to determine whether the identity of a confidential informant should have been disclosed. He also asserts he did not receive all the custody credits to which he was entitled, CALJIC No. 2.01 as to circumstantial evidence should have been given, and he had a right to a jury trial on whether the upper term on one count should be imposed. After the original briefs were filed, the United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), which held that imposition of an upper term under Californias sentencing law generally violated a defendants constitutional rights. (Id. at p. [127 S.Ct. 856, 860].) Court allowed the parties to file supplemental briefs on this issue. Defendants prior convictions and parole status at the time he committed the crime were factors that need not have been determined by a jury and support an upper term sentence.
Court modify the abstract of judgment to correctly reflect defendants actual and good conduct credits, but otherwise affirm the judgment.

Defendant appeals from a judgment granting him probation after imposition of sentence was suspended, following his guilty plea to transportation of methamphetamine and possession of that drug for the purpose of sale. (See Health & Saf. Code, 11378, subd. (a), 11379, subd. (a).) On appeal, he contends this appellate court must review the sealed transcripts of the two in camera hearings conducted as part of his motions for discovery, for disclosure of informants and to suppress the evidence seized pursuant to the search warrantpart of which was sealedand determine if the denial of those motions was proper. He also contends his constitutional rights were violated when the trial court barred his counsel from attending the in camera hearings. Court disagree and affirm.

Alleging insufficient evidence, appellant challenges his convictions for receiving stolen property and possessing burglary tools. Court find ample evidence to support the convictions and affirm the judgment.

Court appointed counsel to represent Oscar Abel Mendez on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client, but advised the court no issues were found to argue on his behalf. Mendez was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him. Court have examined the record and found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)
The judgment is affirmed.

Defendant was convicted after a jury trial of having engaged in a crime spree consisting of robbing seven women of their purses at three different business locations. As a result, he was found to be guilty of five counts of robbery and one count of attempted robbery.
His appeal raises two issues: the denial of a live lineup and the imposition of consecutive sentences in the absence of a statement of reasons by the trial court. Court hold that the trial court did not abuse its discretion in denying defendants motion for a lineup. Defendant also waived his right for a statement of reasons by failing to object in the trial court and that the record fails to support a contention that defendants failure to object constituted ineffective assistance of counsel.

While a patient at Hoag Memorial Hospital Presbyterian (Hoag), John Theriault was moved from a gurney to a hospital bed by hospital attendants. At the time, Theriault had a Foley catheter inserted in his urethra, which ran to a collection bag attached to the gurney. Theriault claims that by moving him from the gurney without disconnecting the collection bag, the attendants caused him damage. Theriault sued Hoag for medical negligence, negligence, and medical battery. The trial court granted Hoags motion for summary judgment, and Theriault appealed. Court affirm.

Daniel B. appeals from a judgment that declared him a ward of the court and placed him on probation, after the juvenile court found him guilty of felony gang related vandalism. Daniel argues the evidence is insufficient to show he was the individual who spray painted graffiti on a building. Court disagree and affirm.

A jury convicted appellant Joseph Ramirez of two counts of lewd act on a child by force (Pen. Code, 288 subd. (b), counts one and two); sexual battery by unlawful restraint (Pen. Code, 242/243.4 subd. (a), count five); and sexual penetration by force (Pen. Code, 289, subd. (a)(1), count six). As to counts one, two and six, the jury found true an allegation that appellant committed an offense specified in Penal Code section 667.61, subdivision (c) against more than one victim. (See case number H024606.)
Appellant appealed his conviction and his initial sentence of 45 years to life in state prison. In an unpublished opinion (H024606 filed January 6, 2004), Court reversed appellant's conviction on count six, reduced the conviction on count five to a misdemeanor and remanded the case to the trial court for resentencing.

Defendant appeals from a judgment of conviction entered after a jury found him guilty of 14 felony counts of committing a lewd act upon his stepdaughter M., a child under the age of 14 (Pen. Code, 288, subd. (a)), and one count of attempting a lewd act (Pen. Code, 664, 288, subd. (a)). Defendant was sentenced to a total term of 33 years in state prison.
Defendant contends that the trial court erred in allowing evidence of defendants uncharged child molestations to be admitted under Evidence Code section 1108 for the purpose of demonstrating defendants propensity to commit such crimes. For reasons that Court explain, Court conclude that the trial court did not abuse its discretion and therefore Court affirm the judgment.

Appellant appeals from an order confirming an arbitration award and entering judgment in favor of Exatron, Inc. He argues that the award should be vacated for two reasons: 1) because the arbitrator exceeded his authority by deciding a disputed issue that was expressly excluded from arbitration by a provision contained in the parties written agreement; and 2) because his rights were prejudiced by the arbitrators refusal to hear evidence material to the controversy. (Code Civ. Proc., 1286.2, subd. (a)(4) & (5).) Court reject these arguments and accordingly affirm the judgment.