CA Unpub Decisions

This case arises from a dispute between the owner of an onion packing facility and the owner of a nearby dairy over allegations the packing facilitys business was damaged by odors, pests, and dust generated by the dairy. In an appeal from a stipulated judgment of nonsuit, the facilitys owner challenges a series of pretrial discovery rulings by the trial court limiting the prospective testimony of the facilitys designated experts regarding the type and amount of its damages. Court affirm the judgment.

Defendant Timothy Earl Hissong was convicted of six counts of lewd and lascivious acts upon a child under 14 and sentenced to 45 years to life. On appeal he challenges the courts imposition of a $20 court security fee. He argues that, because the Legislature created this fee after he committed the crimes, the court improperly applied it to him retroactively. Court disagree.

Defendant was convicted of theft after he took a television set from a residence in Hanford. On appeal, he argues that his sentence, which included the upper term for theft, violated the Sixth Amendment as interpreted in Blakely v. Washington (2004) 542 U.S. 296. While Maciels appeal was pending, the United States Supreme Court issued its decision in Cunningham v. California (2007) U.S.[127 S.Ct. 856], holding that the imposition of upper terms under California law is governed by Blakely.
Court affirm. The sentence imposed in this case was consistent with Blakely and Cunningham. Alternatively, any error was harmless.

Appellant Jesse Sanchez challenges his commitment as a sexually violent predator, contending the commitment order must be reversed because the trial court prejudicially erred and violated his due process rights when it failed to instruct the jury with the statutory definition of a diagnosedmental disorder. Court agree there was instructional error, but conclude the error was harmless and affirm the judgment.

On March 1, 2006, the People filed an information charging Kwame Kekaula (Respondent) with a violation of Health and Safety Code section 11359 (possession of marijuana for sale), Health and Safety Code section 11378 (possession of a controlled substance for sale), and Penal Code section 12021, subdivision (a)(1) (possession of a firearm by a felon). After a hearing, the court granted Respondents motion to suppress evidence seized from Respondents residence. The court dismissed the case on its own motion and the People now appeal.

Respondent was subject to a condition of probation requiring him to submit to warrantless searches for stolen property. At issue is whether the search that yielded the contraband exceeded the scope of the search permissible under his probation condition. Court find Respondent did not have a reasonable expectation of privacy in the areas where police searched for and seized the suppressed evidence. The officers legally entered Respondents residence and conducted the search in a reasonable, non-harassing manner. Court now reverse.

Appellant Grant Gene Self challenges his commitment as a sexually violent predator on the basis of evidentiary and instructional error. Court affirm.

Appellant, Cain Mora Olvera, lived with the two victims, 11-year-old B. and 9-year-old J., and their mother from 2000 until June 2002. During that time, Olvera committed numerous sexual acts against the victims including inappropriately touching them, raping one victim, making the victims touch his penis, and making them masturbate him. The molestations came to light when the victims mother interviewed them after finding Olvera in the victims bedroom the previous night naked with a partial erection. Additionally, the older victim contracted Herpes Simplex II from Olvera.
following independent review of the record Court find that no other reasonably arguable factual or legal issues exist.

Julie Ann Marquez appeals from the trial courts order denying her writ of mandate, which sought to overturn the decision to terminate her employment with the Kern County District Attorneys crime laboratory (crime lab). She contends there was insufficient evidence to uphold the grounds for discipline and, in any event, the decision to terminate her employment was an abuse of discretion. Court disagree and affirm the order denying the petition for writ of mandate.

Appellant Eduardo B., a minor, admitted allegations contained in two separate juvenile wardship petitions (Welf. & Inst. Code, 602) that he committed violations of Penal Code sections 12020, subdivision (a)(4) (carrying a dirk or dagger concealed on ones person and 215 (carjacking). At a disposition hearing covering both offenses, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority (CYA), and declared his maximum period of physical confinement (MPPC) to be nine years eight months, consisting of nine years on the carjacking and eight months on the weapon offense.
On appeal, appellant contends the court erroneously (1) failed to exercise its statutory discretion in setting the MPPC, and (2) failed to exercise its discretion under section 702 to determine whether the weapon offense was a felony or misdemeanor. Court find merit in the second of these contentions, and remand for further proceedings.

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughters M.S. and A.S. Court conclude the law of the case doctrine precludes appellate review and deny the petition.

A modification decision.

More than three months after Robert Steven Cummins pleaded guilty and was sentenced to a drug treatment program, the district attorney filed an amended complaint alleging two strikes and also filed a motion to vacate the guilty plea on the basis that the strikes made Cummins ineligible for the drug treatment program. The court granted the motion. Cummins contends the district attorney lacked authority to amend the complaint after sentencing, and the court erred when it vacated his guilty plea. Court agree and the petition is granted.

Defendant was charged by information with burglary (Pen. Code, 459-460, subd. (a) [count 1]), forcible lewd acts on a child during the commission of a burglary [count 2] and kidnapping ( 288, subd. (b)(1), 667.61, subds. (a)-(e) [counts 9 and 10] ), kidnapping a child under the age of 14 ( 207, subd. (a)/208, subd. (b) [count 3]), two counts of felonious assault, one of them with use of a deadly weapon ( 245, subd. (a)(1), 12022, subd. (b)(1) [counts 4 and 5]), child abuse with the use of a deadly weapon ( 273a, subd. (a), 12022, subd. (b)(1) [count 6]) and forcible sexual penetration during the commission of a kidnapping, one of them with personal use of a deadly weapon ( 289, subd. (a)(1), 667.61, subds. (a), (b), (d), (e), 12022.3, subd. (a) [counts 7 and 8]).
After a doubt was declared as to defendants competency to stand trial, a jury found defendant competent. Defendant subsequently pleaded not guilty and not guilty by reason of insanity. A jury found defendant guilty as charged and sane. The trial court sentenced defendant to 90 years to life, consecutive to a determinate term of 12 years, four months.
On appeal defendant argues that the court: (1) misinstructed the jury in its definition of competency, and then failed to correct the error in response to a jury question; (2) erroneously ruled that defendants implied Miranda waiver and statements were voluntary and intelligent; (3) misinstructed the jury on his idiocy defense; (4) misinstructed the jury on his duress defense; (5) erred by failing to admonish the jury to disregard the prosecutors comments during his rebuttal argument; (6) misinstructed the jury on his insanity defense; (7) improperly sentenced defendant to consecutive terms under the One Strike law; (8) improperly used kidnapping as an aggravating circumstance to impose separate sentences for three sex offenses; and (9) and improperly imposed a sentence of 25 years to life instead of 15 years to life under the One Strike law. He also argues that the errors committed at the guilt trial cumulatively require reversal. Court affirm.

A jury convicted defendant Joseph Deonn Horne of eight offenses and found true a special circumstance allegation and numerous enhancement allegations. The convictions and enhancements are as follows: count 1, murder with a criminal street gang special circumstance and enhancements for discharging a firearm and causing great bodily injury and death and committing the offense for the benefit of a criminal street gang (Pen. Code, 187, 186.22, subd. (b)(1), 190.2, subd. (a)(22), 12022.53, subds. (c) and (d); count 2, attempted murder with gang and firearm discharge enhancements ( 664, 187, 186.22, subd. (b)(1)); count 3, assault with a firearm with a gang enhancement ( 245, subd. (a)(2), 186.22, subd. (b)(1)); count 5, making criminal threats (422); count 6, shooting at an occupied vehicle with a gang enhancement ( 246, 186.22, subd. (b)(1)); count 7, sale or transportation of a controlled substance with a gang enhancement (Health & Saf. Code, 11352; 186.22, subd. (b)(1)); count 8, shooting at an inhabited dwelling with gang enhancements ( 246, 186.22, subds. (b)(1) & (b)(4)(B); count 9, assault with a firearm with a gang enhancement ( 245, subd. (a)(2), 186.22, subd. (b)(1)).
For these crimes and enhancements, the court imposed a term of life without parole for the murder (count 1) plus a consecutive indeterminate life term for using a firearm; a consecutive indeterminate life term for the attempted murder (count 2) plus a 20-year firearm enhancement; a consecutive life term for shooting at an occupied vehicle (count 6); a consecutive life term for shooting at an occupied dwelling (count 8); a consecutive determinate term of three years for selling drugs (count 7) plus a four-year gang enhancement; and a consecutive eight-month term for making a criminal threat (count 5). The court imposed additional terms and enhancements but stayed them under section 654.
On appeal from the judgment, defendant raises the following claims: (1) the prosecutor was guilty of misconduct during cross-examination, the court abused its discretion in failing to curtail the misconduct, and defense counsel rendered ineffective assistance in failing to object; (2) the prosecutor improperly used defendants juvenile adjudications to impeach him; (3) there is insufficient evidence to support the gang special circumstance and the gang enhancements; (4) the court erred in failing to give a unanimity instruction concerning the pattern element of the gang enhancements; (5) the court erred in admitting hearsay concerning the alleged criminal threats; (6) the court misinstructed on the intent element of making a criminal threat; (7) the court erred in failing to give a unanimity instruction concerning the charge of making a criminal threat; (8) the court erred in admitting opinion evidence concerning the credibility of a prosecution witness; (9) the court erred in admitting hearsay concerning a codefendants guilty plea; (10) the indictment/information was defective in not alleging that the attempted murder was premeditated; and (11) the court erred in imposing a consecutive indeterminate term for the murder and a consecutive 20-year enhancement for the attempted murder.
Court conclude that instructional error compels the reversal of defendants conviction for making a criminal threat and reverse the judgment.