CA Unpub Decisions

A jury convicted defendant and codefendant Sandra Prescott of possession of methamphetamine for sale (Health & Saf. Code, 11378) and found true the allegation that defendant had a strike prior conviction (Pen. Code, 667, subds. (b)-(i); 1170.12). Defendant was sentenced to 32 months in prison, the low term doubled. On appeal, defendant contends (1) it was error to deny his motion to suppress; (2) there was insufficient evidence of possession; (3) the trial court failed to respond adequately to the jurys questions about possession; (4) the prosecutor committed misconduct in closing argument; (5) the trial court erred in denying the motion to strike the prior; and (6) there was insufficient evidence of the strike prior because the prosecution improperly used evidence that was not part of the record of conviction. Court affirm.

A jury convicted defendant Richard Gama of second degree murder (Pen. Code, 187, subd. (a), 189)and found that he used, and intentionally and personally discharged, a firearm in the commission of the offense ( 12022.53, subd. (d)). He was sentenced to state prison for 40 years to life, consisting of 15 years to life for the murder plus 25 years to life for the firearm enhancement.
On appeal, defendant contends his trial counsel rendered ineffective assistance by (1) failing to interview and present several witnesses in his defense, (2) failing to object to the introduction of his recorded telephone call with a detective in the prosecutions case in chief, and (3) calling a defense witness whose vulnerability to prosecution impeachment had been known in advance. Court affirm the judgment.

Defendant with $650 in cash in his pocket, fled his neighbors trailer within seconds after a drug raid began. The officers seized two baggies of methamphetamine, scales, and pay owe sheets. Defense counsel presented quite a lackluster defense: failing to voir dire any of the jurors, offering a cryptic and uninspiring opening statement, failing to object to expert testimony that his client was guilty, failing to object when the prosecutor commented on defendants failure to testify, meekly interrogating the experts, and failing to argue that the prosecution bore the burden of proof. A jury convicted defendant of possession for sale of a controlled substance. (Health & Saf. Code, 11378.)
For only the second time in nearly 25 years of public service, the public defender opined that his deputy had failed to provide defendant an adequate defense and requested the court to substitute counsel to bring a motion for a new trial. The court granted the request. But the court denied the new lawyers request for a continuance of the new trial motion for an evidentiary hearing and then denied the motion on the merits. On appeal, defendant asserts the trial court abused its discretion by denying him an evidentiary hearing and by denying his motion for a new trial based on the dismal performance of his lawyer. Court must affirm, not because we find his lawyers representation up to par, but because we cannot say the trial court committed a manifest abuse of discretion by either denying the request for an evidentiary hearing or by denying the motion for a new trial.

James Forbes sued Eileen Spencer and Jack Helsel (Spencer, except as context indicates), alleging breach of a contract to pay attorney fees. Spencer moved for judgment on the pleadings. The trial court converted the motion to a summary judgment motion to consider evidence not embraced by the pleadings, granted summary judgment and sanctioned Forbes and his counsel. Forbes prematurely appealed; his counsel did not appeal. Although a motion for judgment on the pleadings is distinct from a motion for summary judgment, in this case the trial court gave Forbes ample notice of the procedural change of posture and nowhere in the trial court or on appeal does Forbes identify any prejudice caused by the change. In such circumstances, even if we concluded the trial court erred, reversal would not be required. (Cal. Const., art. VI, 13; see Cal. Code Proc., 475.) Although Spencer concedes the statutory procedures to obtain sanctions were not followed, the record on appeal does not indicate Forbes raised procedural objections in the trial court and Court decline to consider them for the first time on appeal. Again, no prejudice is shown. Court affirm.

In May 2005 a tenant of an apartment complex notified the assistant manager that he had seen someone looking over, and then jumping over, his neighbors fence. The assistant manager alerted other apartment complex personnel by radio and then went to the victims apartment. As he approached, he saw defendant Tony Eugene Scott in the upstairs window. The manager knocked on the apartment door and identified himself. Then he saw defendant leave the apartment through the patio door and jump over the patio fence. The manager and two other personnel chased defendant around the apartment complex. Ultimately, defendant stopped running and the employees held him until police arrived. The victim testified that she did not know defendant and did not give him permission to be inside her apartment. She acknowledged that nothing in the apartment had been taken or disturbed. The defense rested without presenting any evidence or testimony.
In case No. 05F03937, a jury convicted defendant of first degree burglary. (Pen. Code, 459, 460, subd. (a).) He was sentenced to state prison for four years, and awarded 60 days of custody credit and 30 days of conduct credit. The trial court imposed a restitution fine of $200 (Pen. Code, 1202.4, subd. (b)) and suspended an additional restitution fine in the same amount pending successful completion of parole (Pen. Code, 1202.45). The trial court further imposed a $10 crime prevention program fee (Pen. Code, 1202.5) with a $10 state penalty assessment (Pen. Code, 1464) and a $7 county penalty assessment (Gov. Code, 76000), a $20 court security fee (Pen. Code, 1465.8), and booking and classification fees.
In case No. 04F06528, the trial court found that defendant violated his probation by committing the offense in case No. 05F03937. He was sentenced to state prison for a concurrent term of one year; awarded 90 days of sentenced time, 60 days of custody credit, and 30 days of conduct credit; and ordered to pay a $200 restitution fine (Pen. Code, 1202.4) and a $200 restitution fine suspended unless parole is revoked (Pen. Code, 1202.45).
Court appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief contending (1) there was insufficient evidence of the specific intent required for burglary, (2) the trial court erred by failing to instruct the jury on flight, and (3) his trial counsel rendered ineffective assistance. Court consider these points in turn.

Following a contested jurisdictional hearing, the juvenile court sustained charges against Lupe S., a minor, of possession of a firearm (Pen. Code, 12021, subd. (d)), concealing a firearm upon the person (Pen. Code, 12025, subd. (a)(2)), and possession of a firearm capable of being concealed on the person (Pen. Code, 12101, subd. (a)(1)). The minors wardship was continued and he was ordered placed in the Rite of Passage program.
On appeal, the minor contends (1) the evidence was insufficient to support the sustaining of all three charges; (2) because his detention was unlawful, his admission to throwing away a knife should have been suppressed; (3) the juvenile court incorrectly calculated his maximum term of confinement; (4) remand is required for the juvenile court to declare the felony/misdemeanor character for a previously sustained charge of unlawful taking of a vehicle (Veh. Code, 10851, subd. (a)); and (5) the juvenile court erred by failing to make the discretionary determination of his maximum period of confinement as provided by Welfare and Institutions Code section 731, subdivision (b). Other than correcting the minors maximum period of confinement, Court affirm the judgment.

Lisa H. (appellant), the mother of J.R. (the minor), appeals from orders of the juvenile court continuing the minor as a dependent child of the court and sustaining a supplemental petition removing the minor from appellants custody. (Welf. & Inst. Code, 387, 395.) Appellant makes numerous contentions of alleged prejudicial error. Court affirm.

Defendant Richard Mark Brock entered a negotiated plea of no contest to manufacturing methamphetamine. (Health & Saf. Code, 11379.6, subd. (a).) On appeal, defendant contends the court abused its discretion in refusing his request for a referral to the California Rehabilitation Center (CRC) pursuant to Welfare and Institutions Code section 3051. Court disagree and affirm the judgment.

In this boundary dispute between neighbors, the trial court granted Dale and Gloria Mertz a prescriptive easement over and across a 100 foot-wide swath of adjacent property owned by Joseph and Frank Escove for the use of the water pump, gardening, maintenance of animals, maintenance of a boundary fence and leisure and recreational activities relating to the residential use of the Mertzes land.
The Escoves appeal, arguing that by allowing the Mertzes to maintain a boundary fence, the trial court effectively granted the Mertzes an unlawful exclusive prescriptive easement. Court agree and order the judgment amended to eliminate any reference to a boundary fence.

Misty A. (appellant), the mother of C.A. (the minor), appeals from orders of the juvenile court adjudging the minor a dependent child and removing the minor from appellants custody. (Welf. & Inst. Code, 360, subd. (d), 395.) Claiming the findings made by the court are not supported by substantial evidence, appellant contends the order of removal must be reversed and the minor returned to her custody. Court disagree with that contention and affirm.

The Department of Motor Vehicles (department) appeals from a judgment which granted a peremptory writ of mandate compelling it to set aside its decision to suspend Kenneth Wayne Scotts driving privilege for one year following his failure or refusal to submit to a chemical test of his blood alcohol content, pursuant to the implied consent law (Veh. Code, 13353).
Scott concedes the merit of the appeal. Court agree and reverse the judgment (order).

In this appeal, defendant Charles Christopher Hurd argues unsuccessfully that the trial court abused its discretion in denying his motions to reduce his felony convictions to misdemeanors under Penal Code section 17, subdivision (b), and in failing to dismiss his convictions under section 1203.4.
The judgment is affirmed.

Petitioner Bryan F. (father) is the father of dependent minors J.F. (born 1999), A.F. (born 2000) and M.F. (born 2001) (collectively the children). Father challenges the juvenile courts decision to deny without a hearing his petition filed under Welfare and Institutions Code section 388, and its decision to suspend fathers visitation with the children pending the section 366.26 hearing. For the reasons set forth below, Court deny the writ petition.

Court is asked to exercise our discretion to decide an otherwise moot appeal on its merits. Because Court find the issues are not of substantial and continual public interest and not evade future appellate review, Court decline to address the merits of the issues presented. Court dismiss the appeal as moot.