CA Unpub Decisions

A jury convicted defendant of inflicting corporal injury on a cohabitant. (Pen. Code, S 273.5, subd. (a).) In bifurcated proceedings, the trial court found he had been convicted of three priors, for which he served prison terms (Pen. Code, S 667.5, subd. (b)) and one strike prior (Pen. Code, S 667, subds. (c) & (e)(1)). He was sentenced to prison for seven years. Defendant appeals, claiming jury instruction error, prosecutorial misconduct and incompetency of trial counsel occurred. In a petition for writ of habeas corpus, which court considered with this appeal for the purpose of determining whether an order to show cause should issue, he repeats some of those arguments. Court reject all his contentions and affirm, while directing the trial court to correct an error in the abstract of judgment. Court addressed the petition for writ of habeas corpus by separate order. (See case No. E038919)

Defendant appeals a judgment entered following a jury verdict finding him guilty of possession of methamphetamine (Health & Saf. Code, S 11377, subd. (a)) and possession of cocaine (Health & Saf. Code, S 11350, subd. (a)). On appeal, Lang contends: (1) his federal constitutional right to due process of law was violated when the prosecution did not produce a police dispatch tape recording; (2) the trial court abused its discretion by admitting evidence of his prior acts of drug possession; and (3) the trial court erred by finding him ineligible for probation and drug treatment under Proposition 36 (Pen. Code, S 1210 et seq.).
The judgment is affirmed.

Appellant appeals the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) Court therefore deny her requests to review the record for error and to address her Anders issue. (Anders v. California (1967) 386 U.S. 738.)

Appellant appeals the findings and orders made at a 12 month review hearing held pursuant to Welfare and Institutions Code section 366.21 an appeal authorized by Welfare and Institutions Code section 395. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) Court therefore deny his requests to review the record for error and to address his Anders issues. (Anders v. California (1967) 386 U.S. 738.)
Appellant' counsel also requests leave for him to file a supplemental brief in propria persona. The request is denied.

Defendant entered a negotiated guilty plea to taking or driving another's car without permission. (Veh. Code, S 10851, subd. (a).) The court suspended imposition of sentence and placed her on three years probation including a condition she serve 180 days in custody. It ordered Carman to pay $3,883.26 victim restitution. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304 [former rule 30(b)].) Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible, but not arguable, issue whether the trial court erred in ordering Carman to pay restitution to the victim in an amount that included the insurer's payment to the car owner for the damage. Court granted defendant permission to file a brief on her own behalf. She has not responded. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant on this appeal. The judgment is affirmed.

After the trial court found defendant competent to stand trial, Bloom entered negotiated guilty pleas to assault with intent to rape (Pen. Code, S 220) and assault with a deadly weapon (S 245, subd. (a)(1)). Defendant admitted personally using a knife during the crimes, a prior strike (SS 667, subds. (b)(i), 1170.12, 668) and two prior serious felony convictions (S 667, subd. (a)(1)), and waived the right to appeal any stipulated sentence. The court sentenced him to a stipulated 25 years in prison: double the six year upper term for assault with intent to rape with a prior strike, enhanced by two five year terms for the prior serious felony convictions and one year for weapon use, with a consecutive two years for assault with a deadly weapon with a prior strike (one third the middle term). The court awarded credit for time served and denied a certificate of probable cause. (Cal. Rules of Court, former rule 30(b).)

In 1988, Frank Kow, Michael Sun, and William Wang actively participated in a planned robbery and the shooting of three undercover DEA agents who were posing as drug buyers. Two of the agents were killed, the third was wounded, and Kow and Sun were killed by other agents as they attempted to flee. Wang was wounded but survived and was later convicted of two counts of first degree murder, one count of attempted murder, and one count of robbery, and was sentenced to state prison for life without the possibility of parole. Court affirmed (People v. Wang (June 3, 1992, B049641) [nonpub. opn.]), and the Supreme Court denied review (People v. Wang (Aug. 27, 1992, S027668). Meanwhile, Michael Chia was tried separately for the same crimes and convicted as an aider and abettor of two counts of first degree murder, one count of attempted murder, one count of robbery, and one count of conspiracy to commit robbery. Court affirmed (People v. Te-Chia (May 30, 1991, B043360 [nonpub. opn.]), the Supreme Court denied review (People v. Te - Chia (Sept. 4, 1991, S021888), and the United States District Court denied Chia's petition for a writ of habeas corpus -- but the Ninth Circuit Court of Appeals reversed the district court and remanded the cause with instructions to issue a writ of habeas corpus unless Chia was granted a new trial (Chia v. Cambra (9th Cir. 2002) 281 F.3d 1032). The United States Supreme Court granted certiorari, vacated the Ninth Circuit's judgment, and remanded the cause to the Ninth Circuit for further consideration (McGrath v. Chia (2003) 538 U.S. 902). On remand, the Ninth Circuit again reversed the district court (Chia v. Cambra (9th Cir. 2004) 360 F.3d 997), finding that Chia had been denied a fair trial because the trial court had excluded hearsay statements by Wang (who had been unavailable because he had invoked his Fifth Amendment rights) that allegedly exonerated Chia.
At his retrial in 2005, Chia called Wang as defense witness, and Wang testified that Chia had not been involved in the robbery or murders of the DEA agents. The jury rejected Wang's testimony (and the rest of Chia's defense) and once again convicted him of two counts of first degree murder, one count of attempted murder, one count of robbery, and one count of conspiracy to commit robbery, with true findings on allegations that a principal had been armed with a firearm during the commission of the murders and the robbery. Chia was sentenced to state prison for an aggregate term of 61 years to life. Defendant appeals, challenging various aspects of the trial and his sentence. Court vacate a $200 fine but otherwise affirm the judgment.

Defendant was convicted, following a jury trial, of being a felon in possession of a firearm. On appeal, he contends (1) the trial court improperly excluded evidence that the man who was with appellant when he was arrested owned and possessed the gun in question; (2) the trial court improperly admitted "profile" evidence regarding drug dealing; (3) the cumulative effect of the court's errors requires reversal; and (4) the trial court incorrectly calculated appellant's presentence custody credit. Court order the custody calculation corrected to reflect an additional day of credit. Court otherwise affirmthe judgment.

A Welfare and Institutions Code section 602 petition alleged that "on or about and between August 23, 2005 and August 24, 2005, "T.P. (the minor) committed four acts of felony vandalism by placing graffiti on three retaining walls and the Capitola train trestle. (Pen. Code, S 594, subd. (a).) The juvenile court sustained the petition finding all four vandalism allegations to be true. The minor argues on appeal that his statement to a Capitola police detective that his arrest would not necessarily stop the vandalism was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 and should have been excluded. Appellant also argues that the evidence is insufficient to support his conviction for vandalizing the trestle.
Court conclude that the trial court did not err in admitting the challenged statement and that there is sufficient evidence to support the court's true finding relating to the trestle vandalism. Accordingly, court affirm.

In this family law matter respondent (husband) appeals from the trial court's denial of his motion for relief from the default judgment entered against him and in favor of petitioner (wife). Husband claims that the default was the result of his attorney's mistake and that relief was mandatory under Code of Civil Procedure section 473, subdivision (b). Husband also argues that the relief was warranted because he was never properly served with the summons and petition and because wife had fraudulently transferred community property to herself. Court conclude that husband did not show that entry of default was actually caused by attorney error, that husband voluntarily submitted to the jurisdiction of the court, and that the alleged fraudulent transfer does not warrant relief from the judgment. Accordingly, court affirm.

Appellant, who was a student in San Jose State University's teaching credential program, filed a " petition for writ of mandate and/or prohibition or other relief" against respondents California State University's Board of Trustees, San Jose State University's Interim President Don W. Kassing, Dean Susan Meyers of the University's School of Education, Associate Professor and Chair of the Department of Secondary Education Cathy Buell, and Associate Professor Helen Kress. Appellant sought review of the university's denial of a revised October 28, 2004 grievance filed with the university in regard to a course entitled " Social, Philosophical and Multicultural Foundations of Secondary Education" (EDSC 172A), which had been taught by respondent Kress in the fall 2003 semester. The grievance challenged the curriculum, his assigned grade, and the treatment he received during the course. It also challenged, on free speech and due process vagueness grounds, the Secondary Education Department's "professional dispositions," which candidates in the teaching credential program are expected to demonstrate as they progress through the single subject credential program.
Appellant's grievance had been rejected by the university's Student Fairness Committee (SFC). One of the responsibilities of the SFC is to hear "complaints of violations of student rights in instructional and curricular matters, including grade appeals . . . ." The SFC denied appellant's grievance petition, finding, among other things, that appellant had not shown his right to free speech had been violated or he was entitled to a change of grade.
In sum, appellant has not established the trial court erred in denying relief. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [error must be affirmatively shown on appeal].)
The trial court's order, filed June 27, 2005, denying appellant's petition is affirmed.

Defendant appeals from his convictions for assault with a deadly weapon, rape by use of drugs, and assault with intent to commit a sexual offense. Court affirm in part, reverse in part, and remand for resentencing.

Defendant was convicted of five counts of second-degree robbery; the jury also found true he personally used a knife as to one count and personally used a firearm as to four counts. Defendant appeals, claiming the court improperly usurped the jury's function when it incorrectly told the jury that two witnesses had identified him as the robber. Court disagree and affirm.

This is the second installment in this court involving Prestwick Estates, Unit No. 1 (Prestwick Estates), an oceanfront custom residential community in the City of San Diego. In Patterson v. Beuligmann (Oct. 14, 2004, G031980), an unpublished opinion, court addressed a dispute between the community's architectural committee and a property owner regarding obstruction of views. The community is subject to various covenants running with the land, contained in a declaration of building restrictions and architectural control. The disputes in this appeal and cross - appeal center on the interpretation and enforcement of the covenants regarding removal of members on the governing architectural committee and the election of new members.