CA Unpub Decisions

The California Land Conservation Act of 1965 (Gov. Code, 51200 et seq.), also known as the Williamson Act (hereafter Williamson Act), authorizes local governments to establish agricultural preserves, consisting of lands devoted to agricultural and other compatible uses. Once a preserve is established, the local government may enter into renewable contracts with owners of agricultural land to restrict the use of the land for at least 10 years, in exchange for favorable statutory property tax assessment standards. (Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 851-852 (Sierra Club), superseded on other grounds by statute as recognized by Friends of East Willits Valley v. County of Mendocino (2002) 101 Cal.App.4th 191, 204-205.) As a result, however, the local government loses substantial property tax revenue. In 1971, the Open-Space Subvention Act ( 16140-16146) was enacted to provide replacement revenues to the local government lost by reason of the reduced property taxes assessed on property subject to a Williamson Act contract.
The County declined to pursue any administrative remedies and instead filed the instant petition for writ of mandate against the Department (Code Civ. Proc., 1085), to compel the Department to pay the withheld subvention funds. The trial court denied the petition and found the Department had jurisdiction to withhold subvention funds and the County was obliged to exhaust its administrative remedies to challenge the Departments action. Court affirm.

A jury convicted appellant Mikhiel Jakob Leinweber of first degree murder (Pen. Code, 187). The jury also found true the allegation that Leinweber personally discharged a firearm causing death ( 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found true that Leinweber had two prior serious felony convictions pursuant to section 667, subdivision (a), two prior felony convictions pursuant to section 667, subdivision (d), and one prior prison term pursuant to section 667.5, subdivision (b). The trial court sentenced Leinweber to 111 years to life in state prison as follows: 25 years to life, tripled to 75 years because of the prior strike convictions; a consecutive 25-year term for the section 12022.53, subdivision (d) enhancement; two consecutive five-year terms for two section 667, subdivision (a) prior convictions; and a consecutive year for a section 667.5, subdivision (b) prior prison term.
Leinweber contends the prosecutor committed numerous instances of misconduct throughout the trial, and the trial court erred in refusing to give a defense-drafted instruction and in imposing a one-year enhancement. Court agree only with Leinwebers last contention, and in all other respects, affirm.

On October 5, 2005, a second amended information was filed against appellant Christopher Rivas and codefendant Daniel Vera. Appellant was charged with count I, assault by means of force likely to produce great bodily injury on Abel Martinez (Pen. Code,[1] 245, subd. (a)(1)), and count II, criminal threats on Jane Doe[2]( 422). Codefendant Vera was separately charged with count III, resisting an officer by force or violence ( 69). Appellant and codefendant Vera were both charged with count IV, active participation in a criminal street gang ( 186.22, subd. (a)).
As to count I, it was alleged appellant personally inflicted great bodily injury ( 12022.7, subd. (a)), and personally used a deadly weapon, a knife ( 12022, subd. (b)(1)). As to counts I and II, it was further alleged appellant committed the offenses for the benefit of a criminal street gang ( 186.22, subd. (b)(1)); he suffered one prior serious felony conviction ( 667, subd. (a)); and he suffered one prior strike conviction ( 667, subds. (b)-(i)). Appellant pleaded not guilty and denied the special allegations.
At the preliminary hearing, the court dismissed the aggravated assault charge as to codefendant Vera. Vera subsequently pleaded guilty to misdemeanor resisting an officer ( 148, subd. (a)(1)) as a lesser offense of count III, and was placed on probation for two years.
On October 5, 2005, appellants jury trial began on counts I, II and IV; the court had bifurcated the prior conviction allegations. The court granted appellants motion for acquittal as to the great bodily injury enhancement.
On October 6, 2005, appellant was convicted of counts I, II, and IV, and the jury found he personally used a knife in the commission of count I, and counts I and II were committed for the benefit of a criminal street gang. Appellant admitted the truth of the prior conviction allegations.
On February 10, 2006, the court sentenced appellant to an aggregate term of 14 years in state prison: as to count I, the upper term of four years, doubled to eight years as the second strike term, with consecutive terms of one year for the personal use enhancement, and five years for the gang enhancements. The court imposed concurrent second strike terms of six years for counts II and IV, with a concurrent term of five years for the gang enhancement as to count II.
On February 21, 2006, appellant filed a timely notice of appeal. The trial court is directed to prepare and serve as appropriate an amended abstract of judgment reflecting the foregoing modifications.

Appellant, pled no contest in case No. 05CM4504 to vehicle theft (Veh. Code, 10851, subd. (a)) and admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, 667, subds.(b)-(i)). In case No. 05CM4598, Sotello pled no contest to possession of stolen property (Pen. Code, 496, subd. (a)) and admitted allegations that he had a prior conviction within the meaning of the three strikes law. On appeal, Sotello contends the court: 1) violated the terms of his plea bargain; 2) erred in denying him counsel and a hearing with respect to his motion to withdraw his plea; and 3) committed Blakely error. Court affirm.

On appeal from a judgment of conviction of three felonies and one misdemeanor, Frank Enrico Perry argues that allowing the prosecutor to impeach him with his firearm prior was an abuse of discretion. The Attorney General argues the contrary and requests remand for the court to impose a sentence on the misdemeanor. Perry opposes the Attorney Generals request. Court affirm the judgment.

On November 15, 2005, a single-count criminal complaint was filed charging appellant, Frank Joseph Cheever, with continuous sexual abuse of a child under the age of 14 (Pen. Code, 288.5, subd. (a)). On March 15, 2006,[1]pursuant to a plea agreement, appellant pled no contest to the charged offense. On April 13, after determining that appellant had expressed the wish to withdraw his plea, the court, without relieving appellants appointed counsel, appointed a second attorney for the purpose of determining whether grounds existed for the withdrawal of the plea. On April 25, that attorney reported to the court he had determined no grounds existed for appellant to withdraw his plea. On May 6, the court sentenced appellant to six years in prison.
The judgment is reversed and the cause remanded to the superior court to permit appellant, within 30 days after the remittitur is filed in the trial court, to make a motion to withdraw his plea of no contest in a manner consistent with the views expressed in this opinion. If the superior court grants such a motion, the superior court shall reinstate the original charge, if the prosecution so moves, and proceed to trial or make other appropriate dispositions. If no such motion to withdraw the no contest plea is filed by appellant within the time limit set forth above, or if the motion to withdraw appellants plea is denied, the superior court is directed to reinstate the original judgment.

Daisy Smith appeals from the order confirming an arbitration award in favor of Terry Venturini and the resulting judgment. She argues Court must reverse because she did not consent to be bound by the contract that contained the arbitration agreement. Court disagree and affirm the judgment.

Appellant Lionel Ricky Ray Ortiz was found guilty after a jury trial of second degree robbery (Pen. Code, 211 & 212.5, subd. (c), count one), receiving a stolen check (Pen. Code, 496, subd. (a), count two), and second degree burglary (Pen. Code, 460, subd. (b), count three).[1] On June 8, 2006, the trial court sentenced appellant to the upper prison term of five years on count one. The court imposed the upper term of three years on count two but stayed sentence pursuant to section 654 and sentenced appellant to a concurrent midterm of two years on count three. Appellants total prison term is five years. The court imposed a restitution fine and granted appellant 133 days of custody credits.

On appeal, appellant contends, and respondent concedes, that appellants conviction for receiving stolen property on count two was based on the same facts as his robbery conviction on count one and his conviction on count two must be reversed. Appellant further contends the trial court violated his right to a jury trial when it relied on aggravating factors to impose the upper term sentence. (Cunningham v. California (2007)549 U.S. __ [127 S.Ct. 856] (Cunningham).) Court disagree and affirm.

The court readjudged appellant, T. S., a ward of the court (Welf. & Inst. Code, 602)[1]after he admitted allegations charging him with attempted robbery (Pen. Code, 664/211) and violation of probation ( 777). On July 12, 2006, the court set T. S.s maximum term of confinement at 5 years 10 months and committed him to the California Department of Corrections and Rehabilitation Division of Juvenile Justice. (DJJ.)
On appeal, T.S. contends: 1) the court abused its discretion when it denied his motion to withdraw plea; and 2) the court misunderstood its discretion in setting his maximum term of confinement. Court affirm.

This is an appeal from judgment after a jury found defendant Ricardo Ramos guilty of one count of arson of property (Pen. Code, 451, subd. (d)). Defendant contends the court abused its discretion in imposing the upper term of three years for the crime. He also contends the court violated his Sixth and Fourteenth Amendment rights in basing the sentence on facts not admitted or found true by the jury. (See Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856].) Court affirm the judgment.

On November 4, 1997, appellant, Prem Prakash Chandra, Jr., and another man entered the victims house in Modesto asking for a man who did not live there. While the second man ransacked the victims house, Chandra, who was armed with a handgun, took her to a second house on the property, where he raped her after making her orally copulate him. When the victims boyfriend arrived, the two men physically assaulted him before fleeing. Following independent review of the record, we find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

At the parties request, Court deny the instant writ petition as moot because the parties have effectuated a settlement. This court issued an alternative writ to determine whether a conservator for a severely brain damaged woman, who was unable to speak or communicate, could initiate and prosecute proceedings to dissolve her marriage. Michael J., husband, opposed the dissolution. We initially issued a published opinion holding that the conservator, real party in interest Linda Rogers, did not have this power, but suggested that she pursue the alternate remedy of legal separation. Conservator successfully petitioned for rehearing, pointing out that husband could thwart the alternate remedy by refusing to consent to legal separation. The petition is denied as moot.

Thai Bao Tran appeals from a judgment after a jury convicted him of two counts of first degree murder and found true he personally used a firearm during the commission of both counts. Tran argues the trial court erroneously admitted evidence, the district attorney committed misconduct, the court erroneously instructed the jury, and there was cumulative error. Although some of Trans claims have merit, Court conclude he was not prejudiced, and Court affirm the judgment.

Victor Hugo Salgado appeals to us following retrial on the same set of charges for which he was convicted originally in 2001. Court reversed the judgment for that conviction in the unpublished opinion, People v. Salgado, numbered G028368 and filed in June 2003. In the judgment following retrial, Salgado received a determinate term of 23 years plus an indeterminate term of 40 years to life.
On appeal from the retrial, Salgado contends our unpublished opinion held his statements to the police were involuntarily given, and thus, their exclusion was binding on any retrial as law of the case. In the alternative, any statements he made subsequent to the interrogating officers use of the inadmissible lie detector test were involuntary, and the retrial court erroneously failed to suppress them. However, we want to emphasize that the retrial court properly deleted all mention of the lie detector test before admitting Salgados incriminatory statements, and thoroughly edited those statements, redacting all language unduly prejudicial or irrelevant.
Additionally, Salgado contends that Roberto Gonzalez, a fellow gang member who testified for the prosecution, was an accomplice as a matter of law for which an instruction to that effect was required to be given sua sponte. Court affirm.