CA Unpub Decisions

Appellant Thomas Vaught was convicted, following a jury trial of one count of second degree robbery in violation of Penal Code section 211, one count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) and one count of second degree commercial burglary in violation of section 459. The jury found true the allegations that appellant personally used a firearm in the commission of the robbery within the meaning of section 12022.53, subdivision (b) and that a principal was armed in the commission of the burglary within the meaning of section 12022, subdivision (a)(1). The trial court found true the allegations that appellant had previously suffered a serious felony conviction within the meaning of section 667, subdivision (a), and three prior felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 ("the "three strikes" law) and had served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a term of 25 years to life in state prison for the robbery conviction pursuant to the three strikes law, plus a consecutive 10 year term for the section 12022.53 firearm enhancement and a 5 year term for the section 667, subdivision (a) enhancement. The trial court sentenced the remaining two counts concurrently.
Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to stay the sentence on the count 3 burglary conviction pursuant to section 654. Appellant also contends that the abstract of judgment should be corrected to reflect the correct statutory basis for the firearm enhancement to count 3. Respondent agrees with these contentions. Court order the count 3 sentence stayed and the abstract of judgment corrected to reflect that the one year enhancement for count 3 was imposed pursuant to section 12022, as set forth in more detail in our disposition. Court affirm the judgment of conviction in all other respects.

Defendant, a licensed attorney and cattle rancher, was charged with seven counts of felony cruelty to animals (Pen. Code, 597, subd. (b); undesignated section references are to the Penal Code). All counts alleged that defendant unlawfully deprived animals of necessary sustenance and water on or about December, 2001 count 1 as to livestock generally, count 2 as to an individual bull, and counts 3 through 7 as to individual calves.
A jury convicted defendant on counts 1, 3, 4, 5, and 7, but acquitted him on counts 2 and 6. The trial court denied defendants motion for new trial, then sentenced him to five years probation.
Defendant appeals in propria persona, renewing several grounds raised in his motion for new trial: (1) The trial court was so consistently biased against defendant that it [a]cted as a [s]econd [p]rosecutor. (2) The trial court erred prejudicially by prohibiting the testimony of defendants key expert witness. (3) The prosecutor committed misconduct. Defendant also contends the trial court erred by refusing to reduce his felony convictions to misdemeanors and by denying his motion for new trial. Lastly, he contends he has been unconstitutionally deprived of citizenship rights for criminal conviction under a negligence standard.
court conclude the trial court abused its discretion by excluding defendants key expert as a discovery sanction without properly considering whether a lesser sanction would suffice. Moreover, because the case turned on a battle of the experts, we cannot find the error harmless beyond a reasonable doubt. Therefore, Court reverse. In light of this conclusion, we do not reach defendants other claims of error.

In this case, we reject attorney Victor Gonsalvess factually and legally unsupportable assertion that the state court lost jurisdiction to dismiss a Placer County case with prejudice once a Sacramento County case based on similar allegations was removed to federal court. No stranger to this court, Gonsalves (plaintiff) appeals the order of dismissal with prejudice of one of his many lawsuits against defendant Conseco Insurance Company after the court sustained defendants demurrer and plaintiff failed to file a timely amendment, then voluntarily dismissed the case. Court reject not only his jurisdictional argument, but the hopeless attempts he makes to save his Placer County action on the merits. Court affirm.

Defendant pleaded no contest to second degree burglary (Pen. Code, 459) and admitted a prior strike. In accordance with the stipulated sentence, the trial court sentenced defendant to the lower term of 16 months, which was doubled by the strike to 32 months. The court also imposed a $200 restitution fine (Pen. Code, 1202.4), stayed a $200 parole revocation fine (Pen. Code, 1202.45), and imposed a $20 court security fee (Pen. Code, 1465.8). Defendant was awarded 127 actual days and 62 conduct days for a total of 189 days of custody credit.Having undertaken an examination of the entire record, court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

Dr. Patrick O'Meara, the former chair of the Department of Orthopedic Surgery at Palomar Medical Center (Palomar), sued Palomar and related entities, and various individuals on Palomar's medical peer review committees, alleging these defendants improperly retaliated against him because he expressed dissatisfaction with a managed care entity's involvement in medical decisions. After this court reversed a prior judgment granting defendants' demurrer, defendants brought a motion to strike the second amended complaint under California's anti SLAPP law. (Code Civ. Proc., 425.16.) The superior court found the anti SLAPP statute governed the complaint, but that Dr. O'Meara met his burden to show a probability of prevailing on his claims. The superior court thus entered an order denying defendants' anti SLAPP motion.
In reaching this conclusion, court analyze separately the two challenged disciplinary actions imposed by Palomar's peer review committee: a probation imposed in February 2000 and an extension of the probation imposed in April 2001. As explained, Dr. O'Meara met his burden to show a probability of prevailing on his claims based on the April 2001 probation, and defendants did not show a probability that their asserted exhaustion defenses would preclude these claims. Court base this determination on the state of the record when the trial court ruled on the anti-SLAPP motion, and not on events occurring after the challenged order and after the notice of appeal was filed. Although our conclusions on the April 2001 probation are sufficient to require an affirmance, for purposes of judicial economy we also address Dr. O'Meara's claims based on the first probation (February 2000). On the record before us, Court conclude Dr. O'Meara failed to exhaust his judicial remedies with respect to this disciplinary action.

A jury convicted Douglas E. Ringold of transporting a controlled substance. (Health & Saf. Code, 11352, subd. (a).) In a bifurcated hearing, the trial court found the controlled substance Ringold transported was not for personal use (Pen. Code, 1210, subd. (a)), he had two prior strikes ( 667, subds. (b) (i)), a prior conviction of possessing a controlled substance (Health & Saf. Code, 11350, subd. (a), 11370, subd. (a)), and had served three prior prison terms ( 667.5, subd. (b), 668). The court struck one prior strike and one prior prison term enhancement and sentenced him to prison for 10 years: double the four year middle term for transporting a controlled substance with a prior strike, enhanced by two 1 year terms for prior prison terms. The court awarded 372 days credit for time served: 248 actual days and 124 days of section 4019 credit. Ringold contends the trial court erred in not awarding him one additional day credit for time served. The judgment is affirmed.

Oscar V. Gonzalez entered a negotiated guilty plea to transporting more than 28.5 grams of marijuana and admitted that the marijuana was not for his personal use. (Health & Saf. Code, 11360, subd. (a); Pen. Code, 1210, subd. (a).) The court suspended imposition of sentence and placed Gonzalez on three years' probation including a condition that he serve 30 days in custody. The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304, former rule 30(b).)
The judgment is affirmed.

Virginia U. appeals following the judgments terminating her parental rights over Alfonso T., Diego T., and Daisy T. Virginia contends the juvenile court abused its discretion by summarily denying her Welfare and Institutions Code section 388 modification petition and therefore the ensuing termination of parental rights was error. Court affirm.

Amelia H. appeals a judgment of the juvenile court terminating her parental rights to her minor daughter E.D., under Welfare and Institutions Code section 366.26. Amelia challenges the sufficiency of the evidence to support the court's finding that E.D. was likely to be adopted within a reasonable time. Court affirm the judgment.

Case number CR60861
On June 21, 1995, defendant Gary Miller (defendant), who was on probation at the time, pled guilty to one count of possessing methamphetamine with intent to sell. (Health & Saf. Code, 11378.) The date of his underlying offense was January 18, 2005. On September 7, 1995, the court sentenced him to two years in state prison and imposed a restitution fine of $200. (Pen. Code, 1202.4.)
Case number RIF72792
Almost exactly two years later, on June 18, 1997, and again while on probation, defendant pled guilty to possession of methamphetamine and admitted that he had two prior convictions and a strike on his record. (Health & Saf. Code, 11377, subd. (a); Pen. Code, 667.5, subd. (b) & 667, subd. (e)(1).)[1] Immediately after accepting his plea, the trial court sentenced him to eight years in state prison: the midterm of three years for the drug possession conviction, doubled because of the strike, plus one year for each of the admitted priors. ( 667, subds. (c) & (e)(1) & 667.5, subd. (b).)
On August 8, 2005, in response to a letter from the Department of Corrections and pursuant to the provisions of section 1204.45, the court added parole revocation fines of
$200 in each of the two cases. This appeal followed.The judgment is modified by striking the parole revocation fine in case number CR60861. As so modified, the judgment is affirmed.

Defendants and appellants Jesus Lopez, Stacey Daniella Dyer, and Daniel Justin Ortega were convicted of the first degree felony murder of Donald Jameson Hunter (D.J.) with the jury finding true the special circumstances that the murder was committed during a robbery, a kidnapping, and a carjacking. The jury also found each defendant guilty of robbery and kidnapping. In addition, an arming allegation was found true as to the murder and robbery counts.
In this consolidated appeal, the defendants challenge their convictions on numerous grounds. We remand the matter to the trial court for limited proceedings related to the defendants sentences. In all other respects, court affirm.

A jury convicted appellant, Robert Eugene Robinson, on two counts each of attempted voluntary manslaughter (counts 1 & 3/Pen. Code 664/192, subd. (a)) and assault with a deadly weapon (counts 2 & 4/ 245, subd. (a)(1)). The jury also found true allegations in counts 1 and 3 that Robinson personally used a deadly weapon ( 12022, subd. (b)(1)) and allegations in counts 1 through 4 that he inflicted great bodily injury ( 12022.7). In a separate proceeding, Robinson admitted a prior prison term enhancement in counts 1 through 4.
On November 29, 2005, the court sentenced Robinson to an aggregate, unstayed term of 12 years 10 months as follows: the upper term of five years six months on count 1, a one year weapon enhancement in that count, a three year great bodily injury enhancement in that count, and a one-year prior prison term enhancement, a one-year term on count 3 (one third the middle term of three years), a four month weapon enhancement in that count (one third the enhancement term of one year), and a one year term on the great bodily injury enhancement in that count (one third the enhancement term of three years). The court also imposed stayed aggregate terms of eight years each on counts 2 and 4 consisting of the aggravated term of four years on the substantive offense in each count, a three year term for the great bodily injury enhancement in each count and a one year prior prison term enhancement in each count. On appeal, Robinson contends: (1) the court committed Blakely error; and (2) the court erred in imposing more than one prior prison term enhancement. Court find merit to Robinsons second contention and modify the judgment accordingly. In all other respects, Court affirm.

Eulalio and Elpidia Martinez agreed to sell a portion of the five acre parcel they owned in Fresno County to Emigdio and Angelina Alvarez. Alvarez sued to quiet title when the transaction could not be completed. The trial court entered a monetary judgment in favor of Alvarez, impliedly denying the quiet title action.
Martinez argues the trial court erred for various reasons. Court agree the trial court erred in refusing to permit Martinez a setoff for the reasonable rental value of the property and reverse the judgment.

A jury convicted appellant Frank Herrera Gallegos of violating Penal Code section 288, subdivision (a), committing a lewd act on a child under the age of 14 years. He challenges his conviction on the grounds the trial court erred prejudicially in admitting evidence of prior uncharged sexual offenses pursuant to Evidence Code section 1108. Gallegos further contends that reliance on this evidence as a factor in sentencing violated the principles set forth in People v. Harvey (1979) 25 Cal.3d 754 (Harvey) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
Court conclude the trial court properly admitted evidence pursuant to section 1108. Court also conclude that because Gallegos did not enter into a plea agreement and was convicted by a jury, the Harveyrule is inapplicable. Finally, the imposition of the midterm does not violate either Blakely or the United State Supreme Courts decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856]. Therefore, court affirm the judgment.