CA Unpub Decisions

Defendant Hyung Joon Kim filed a petition for writ of errorcoram nobis asserting that a judgment of conviction against him for felony petty theft with a prior following a negotiated plea was based on mistake of fact and therefore void. He argued that he did not know that the plea would subject him to deportation and concluded that the plea was not knowing and voluntary as required by the federal and state Constitutions. He also filed a nonstatutory motion to vacate the judgment asserting that his trial counsel was constitutionally ineffective because counsel failed to advise him of the immigration consequences of the petty theft conviction. The trial court granted the petition and motion. The People appeal and principally contend that the trial court had no authority to grant the relief defendant sought. Court agree and therefore reverse the orders.

David Litmon, Jr., appeals from a September 7, 2005 order recommitting him as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, 6600 et seq.)[1] for a two-year period from May 2, 2002 to May 2, 2004 following a jury trial. Appellant asserts that the trial court violated his federal constitutional right to due process under the Fourteenth Amendment when, in July 2005, it denied his pretrial motion to dismiss the first recommitment petition for unreasonable pretrial delay.[2]

Appellant now claims the motion to dismiss should have been granted because the prejudicial effect of the delay in bringing him to trial outweighed the reasons for the delay and he argues that the extended pretrial delay created a presumption of prejudice and, furthermore, his unauthorized confinement constituted actual prejudice. His due process argument to the trial court was that he was "entitled to a trial at a 'meaningful time and in a meaningful manner' " and "[t]hat time was February 23, 2004, when he announced ready prior to the termination of the proposed commitment," which was due to expire in early May 2004. Court uphold the trial court's denial of the motion to dismiss based upon the arguments before it and affirm its recommitment order.
Appellant has also filed a petition for writ of habeas corpus, which Court ordered considered with this appeal (H030543). Court resolve the petition by a separate order.

A modification decision.

A modification decision.

A jury convicted defendant Andre Kevin Levell of possession of methamphetamine for sale and possession of drug paraphernalia. On appeal, defendant contends that (1) the trial court abused its discretion by denying his request for a continuance made at the trials end, (2) the prosecutor engaged in misconduct during argument by commenting on his failure to testify (Griffin v. California (1965) 380 U.S. 609 (Griffin)), and (3) the trial court abused its discretion by denying his motion for a new trial based on newly discovered evidence. Court disagree and affirm the judgment.

Plaintiffs and cross-defendants Richard B. Beauchesne and Laura R. Beauchesne (the Beauchesnes) appeal from a judgment enforcing a settlement agreement pursuant to Code of Civil Procedure section 664.6. The Beauchesnes have no quarrel with the material terms of the settlement agreement; they seek to void the agreement on a variety of procedural grounds. Court find no reversible error and affirm the judgment.

Jack Leon Blythe appeals from the judgment sentencing him to six years in state prison following his no contest plea to one count of rape. We appointed counsel to represent appellant. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende(1979) 25 Cal.3d 436. On February 2, 2007, we advised appellant that he had 30 days within which to submit personally any argument that he wanted us to consider. To date, we have received no response from appellant. We have examined the entire record and are satisfied that appellant's counsel has complied fully with her responsibilities. No arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed.

On September 6, 2006, a wardship petition (Welf. & Inst. Code, 602) was sustained in the juvenile court by the true finding that minor Trevor H. had violated Penal Code section 626.10, subdivision (a) (hereafter, section 626.10(a)), by bringing and possessing a knife having a blade longer than two and a half inches upon the grounds of Milpitas High School. The trial court placed the minor on supervised probation without Wardship for six months, declared the maximum term of confinement to be three years, and returned him to the custody of his parents. On appeal, the minor requests remand to the juvenile court for a declaration whether the offense was a felony or a misdemeanor and for possible recalculation of the maximum term of commitment.
The matter is remanded for proceedings in compliance with this opinion.

Defendant and appellant Jason Spann was convicted of failing to stop at the scene of an accident resulting in death. (Veh. Code, 20001.) He contends the trial court erred in instructing the jury in the language of CALJIC No. 2.21.2, regarding a witness who is willfully false. Concluding that CALJIC No. 2.21.2 has been repeatedly upheld against the arguments raised by defendant, Court affirm.

Angelo Gousse, M.D., was arrested by Los Angeles police officers while driving a car rented from Budget Rent-A-Car (Budget). Unbeknownst to Dr. Gousse, the license plates on the car that Dr. Gousse rented had been issued to a car that had been reported stolen. A jury found that both the City of Los Angeles (City) and Budget had been negligent, and awarded $33,224,378 in damages to Dr. Gousse and his wife. Concluding that the damage award was so staggeringly disproportionate to the injuries suffered that the results shock the conscience, the court granted a motion for new trial on the issue of damages. The court denied Citys and Budgets motions for a new trial on liability, and their motions for a judgment notwithstanding the verdict.
Dr. Gousse appeals from the order granting a new trial on the issue of damages. City and Budget have both appealed, contending that their motions for a new trial on the issue of liability and for a judgment notwithstanding the verdict should have been granted.
Court affirm.

Defendant pleaded guilty to seven offenses: (1) evading an officer with reckless driving (Veh. Code, 2800.2, subd. (a)); (2) being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)); (3) driving under the influence of drugs (Veh. Code, 23152, subd. (a)); (4) hit and run driving (Veh. Code, 20002, subd. (a)); (5) resisting an officer (Pen. Code, 148, subd. (a)(1));(6) possession of drug paraphernalia (Health & Saf. Code, 11364); and (7) driving without a license (Veh. Code, 12500, subd. (a)). Smith also admitted allegations he suffered two prior serious or violent felony convictions within the meaning of the three strikes law ( 667, subds. (b) - (i), 1170.12) and two prior prison terms within the meaning of section 667.5, subdivision (b). Smith contends the trial court abused its discretion by (1) refusing to dismiss his prior conviction allegations, and (2) imposing a $10,000 restitution fine.
The judgment is affirmed.

Defendant appeals from a judgment entered upon his negotiated plea of no contest to possession of methamphetamine for purpose of sale (Health & Saf. Code, 11378), suspending the imposition of sentence, and placing him on supervised probation for three years on the condition that he serve six months in the county jail (with 14 days credit for time served) and that he comply with other standard probation conditions. He was also ordered to pay a $200 restitution fine (Pen. Code, 1202.4), a $50 criminal laboratory fee (Health & Saf. Code, 11372.5), a $150 drug program fee (Health & Saf. Code, 11372.7), a $20 court security fee (Pen. Code, 1465.8), and a $75 per month supervised probation fee (Pen. Code, 1203.1, subd. (b).) Defendant timely appeals from the denial of his motion to suppress evidence under Penal Code section 1538.5. Court held Defendant was at all times represented by competent counsel, and the record discloses no basis for reversal. Hence, the judgment is affirmed.

Michael Decarie appeals from a judgment revoking his probation and executing the previously imposed prison sentence. He challenges the admissibility and sufficiency of the evidence supporting revocation. Court affirm.

Defendant pleaded no contest to one count of second degree burglary. (Pen. Code, 460, subd. (b).) Defendant also admitted a prior strike conviction for oral copulation of a minor. ( 1170.12, subd. (c)(1), 288a, subd. (c).) He timely appeals from the judgment entered June 23, 2006 after he unsuccessfully moved to strike this prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Because we conclude the court did not abuse its discretion in denying defendants Romero motion, Court affirm.