CA Unpub Decisions

In a recommitment proceeding under subdivision (b) of Penal Code section 1026.5 (hereafter section 1026.5(b)), a jury found defendant Luke Lindeman had a mental disease, defect, or disorder and by reason of that condition represented a substantial danger of physical harm to others. As a result, the trial court ordered his commitment to Napa State Hospital extended two years. On appeal, defendant contends: (1) there was insufficient evidence to support the jurys findings; (2) the trial court erred in failing to instruct the jury that it also had to decide whether he suffered from a mental disorder that caused him to have serious difficulty controlling his dangerous behavior; and (3) the prosecutor committed misconduct in closing argument by telling the jury the consequences of their findings and arguing it would be good for defendant to lose his case.
Court conclude the evidence the testimony of a single psychologist was sufficient to support the jurys findings; however, the trial court erred in failing to instruct the jury that it had to decide whether defendants mental disorder caused him to have serious difficulty controlling his dangerous behavior. As the People now concede, under our Supreme Courts decision in In re Howard N. (2005) 35 Cal.4th 117 (Howard N.) a volitional element must be read into the test for recommitment in section 1026.5(b) to make that statute comport with general due process principles regarding civil commitments. We also conclude the instructional error was not harmless beyond a reasonable doubt. Accordingly, defendant is entitled to a new recommitment trial.

A modification decision.

Defendant pled no contest to possessing cocaine base in case No. 04F05647 and to brandishing a firearm at a police officer and possessing cocaine base for sale in case No. 05F05056.
On appeal, defendant claims the trial court abused its discretion in denying his motion to withdraw his pleas. Court disagree and affirm the judgment.

After defendant pleaded guilty to possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a), the court suspended execution of a prison sentence and placed him on formal probation, ordering him to attend Drug Court. Defendant made two motions pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), the first of which was heard and denied, and the second of which was neither heard nor decided. When the trial court found defendant had violated his probation, the court sent defendant to prison.
Defendant contends on appeal that the court failed to ascertain the reasons for his second Marsden motion, rendering the probation violation finding and the resulting three year prison sentence reversible per se. Court remand for further proceedings.

At a New Years Eve party, an argument between defendant, 19-year-old Gary Wayne Williams, and the victim led to their pushing one another. According to the victims brother, defendant pushed the victim through a glass window. The victim was seriously injured with numerous cuts. Defendant then punched and wrestled the victim. The victims brother intervened and defendant fled the scene. Another witness claimed the argument began when the victim mocked defendant about the way he was dancing, the two shoved one another, and that the fight was mutual. Defendant called the police and reported that he had been involved in a fight with the victim, which began when the victim teased defendant about his dancing. Defendant claimed the fight was mutual, each pushing and slugging the other. Defendant denied pushing the victim through the window; instead, defendant claimed he stepped aside when the victim charged towards defendant and the victim fell through the window. They continued to fight after the victim fell through the window.
The judgment is affirmed.

On April 7, 2005, defendant received a ticket because her trucks registration had expired. On April 30, 2005, another officer stopped her for the same violation and detained her. Defendant refused the officer permission to search the truck. The officer impounded the truck and conducted an inventory search, which disclosed methamphetamine. Defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, 11378), transportation of methamphetamine with a not for personal use allegation (Health & Saf. Code, 11379, subd. (a); Pen. Code, 1210, subd. (a)), and possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). Defendant moved to suppress evidence. (Pen. Code, 1538.5.) The trial court denied the motion. Defendant pled no contest to transportation of methamphetamine and was sentenced to four years of probation with jail time. The judgment is affirmed.

Defendant pled guilty to two counts of forcibly raping his minor daughter in exchange for a stipulated 16 year prison sentence and dismissal of the remaining charges with a Harvey waiver. He was sentenced to 16 years in prison, consisting of the maximum term of eight years for each offense, to be served consecutively.
On appeal, after having obtained a certificate of probable cause, defendant claims the trial court abused its discretion in denying his motion to withdraw his plea because: (1) the court accepted his plea without (a) advising him of the privilege against self-incrimination or (b) asking him to admit, or the attorneys to stipulate to, a factual basis for the plea; and (2) he was under great duress when he entered his plea. He argues that [t]aken together, these circumstances demonstrate [his] guilty plea was not free and voluntary. Court conclude that the circumstances described by defendant, whether taken individually or together, fail to establish the trial court abused its discretion in denying his motion to withdraw his plea and, therefore, affirm the judgment.

The Department of Real Estate (DRE) revoked the unrestricted real estate salespersons license of appellant Stephanie Ann Yarrigle based on her nolo contendere plea to a charge of misdemeanor driving under the influence. During the administrative proceedings, DRE conceded that Yarrigles offense was not a crime involving moral turpitude.
On this appeal from the denial of her ensuing petition for a writ of mandate, Yarrigle contends there is no statutory authorization for DRE to revoke her license for the commission of a misdemeanor not involving moral turpitude. Court agree, and reverse the judgment denying Yarrigle relief from the revocation of her license.

Appellant, the mother of L.B. (the minor), appeals from orders of the juvenile court denying appellants petition for modification and terminating her parental rights.[1] (Welf. & Inst. Code, 366.26, 388, 395; undesignated section references are to the Welfare and Institutions Code.) Appellant makes four contentions of alleged prejudicial error. For the reasons that follow, Court affirm the orders.

Defendants seek review of the trial court's September 20, 2005 order denying their motion to suppress evidence in their criminal cases.
On September 20, 2005, the trial court held a hearing on the defendants' joint motion to suppress evidence. Defense counsel argued that the requirements of the California wiretapping statute had not been met because the prosecution failed to establish that the district attorney was absent at the time Assistant District Attorney Rodriguez signed the applications for the wiretaps. At the conclusion of the hearing, the trial court adopted its prior tentative ruling and denied the defendants' motion.
On September 21, 2005, Kulesa pled guilty to possession of a controlled substance. Kulesa agreed to a deferred entry of judgment and was ordered to attend a drug program pursuant to Penal Code[1]sections 1000 and 1000.1. Ahwazi, A. Kocherga, and E. Kocherga each pled guilty to possession of a controlled substance on September 22, agreed to a deferred entry of judgment, and were also ordered to attend a drug program under sections 1000 and 1000.1.
The appeals are dismissed.

A jury found Jesus Ortiz guilty of first degree robbery, assault with a deadly weapon, criminal threats, unlawfully taking/driving a vehicle, and evading the police with reckless driving. The jury also found true an enhancement allegation that Ortiz personally used a deadly and dangerous weapon in committing the criminal threats offense. Ortiz waived a jury trial on the alleged priors, and the court found that Ortiz had previously suffered two prison priors (Pen. Code,[1] 1203, subd. (e)(4) & 667.5, subd. (b)), and a serious felony prior, which qualified as a strike prior ( 667, subd. (a)(1), 668, 1192.7, subd. (c)). The court imposed a sentence of 18 years and 4 months, which included a six-year upper term for the robbery conviction (doubled because of the strike).
On appeal, Ortiz contends his conviction for evading the police with reckless driving should be reversed because the trial court's modification of the necessity instruction amounted to a directed verdict and deprived him of his constitutional right to present an affirmative defense. Court conclude the evidence did not support a necessity defense, and therefore there was no prejudicial error in modifying the necessity instruction. Ortiz also challenges his sentence on the robbery conviction because he was sentenced to the upper term without a jury trial and without a finding of proof beyond a reasonable doubt on the aggravating factors. Court conclude the sentence must be reversed because of Blakely/Cunningham[2]error. Court remand for resentencing.

On the day set for trial, plaintiff Rahul Singh and defendant Board of Trustees of the California State University (University) entered into a written settlement agreement, and orally confirmed the agreement on the record before the court. A few days later, Singh sought to renegotiate the terms of the settlement agreement and, when University rejected his request, sought to vacate the settlement and reinstate his lawsuit. The court denied his motion, and granted University's cross motion to enforce the settlement agreement. Singh argues on appeal that because he was the victim of extrinsic fraud, the court abused its discretion by denying his motion to vacate the settlement agreement.

A jury convicted Defendant of residential burglary (Pen. Code, 459) and attempted burglary (id., 459, 664). Defendant admitted to several prior prison terms and felony convictions, and the trial court sentenced Carlsness to nine years in prison. The judgment is affirmed.

A jury convicted Bernardo Ramos of receiving stolen property (Pen. Code, 496, subd. (a)) and unlawfully acquiring access card account information ( 484e, subd. (d)). The court suspended imposition of the sentence and placed Ramos on probation for three years including a condition he serve 365 days in custody. Ramos contends the trial court erred in instructing the jury on the elements of receiving stolen property and he was denied effective assistance of counsel because his attorney failed to object to the prosecutor's comments during closing argument. Court conclude there was no prejudicial error, and affirm.