CA Unpub Decisions

A jury found, defendant guilty as charged of nine counts of aggravated sexual assault on a child under the age of 14 and 10 or more years younger than defendant in violation of Penal Code section 269, subdivision (a). Based on the jury’s verdicts, the trial court sentenced defendant to serve a term of 15 years to life on each count, all to run consecutively to each other, for a purported total term of 135 years to life in state prison.
Defendant contends that the trial court committed prejudicial error by refusing defendant’s request to instruct the jury on lesser included offenses. Defendant also contends that the trial court abused its discretion by overruling defendant’s objection to the admissibility of evidence that he had committed a prior sex crime and that Evidence Code section 1108, pursuant to which that evidence was admitted, is unconstitutional.
Court agreed with defendant’s first contention, but only with respect to counts 3 through 9, and reversed on those counts. Defendant’s remaining claims are meritless.

Following a jury trial, defendant was found guilty of assault with a deadly weapon, to wit, a metal belt buckle, and by means of force likely to produce great bodily injury. The jury also found true that defendant personally inflicted great bodily injury in the commission of the offense. The trial court thereafter found true that defendant had sustained three prior separate prison terms. As a result, defendant was sentenced to a total term of nine years in state prison. On appeal, defendant contends (1) the trial court erred in refusing to instruct the jury with CALJIC No. 2.21.2 on the effect of a witness being willfully false, and (2) the trial court erred in failing to award one additional day of actual custody credit. Court agreed with the parties that defendant is entitled to an additional day of custody credit. Court rejected defendant’s remaining contention.

A jury convicted defendant of burglary; of theft; and of receiving stolen property. Appellant contends that her constitutional right to a fair trial was violated because the trial court imposed the upper-term prison sentence for her burglary convictions. Court disagreed and affirmed.

Plaintiff appeals from the order of the trial court granting the motions of defendants to set aside the defaults and default judgments entered against them. Appellant’s sole contention on appeal is that the trial court abused its discretion in setting aside the defaults and default judgments. Court found no abuse and affirmed the order.

Defendant pleaded guilty to possessing cocaine in exchange for the possessing marijuana for sale count to be dismissed. Thereafter, defendant was granted probation on the condition that defendant participate in a drug recovery program. When defendant failed to enroll in the program, the trial court gave defendant numerous additional opportunities to comply with the court’s order. Defendant, however, never complied. Eventually, the trial court sentenced defendant to the upper term of three years on count 2.
On appeal, defendant contends that the trial court erred in selecting the upper term and in calculating his presentence custody credits. Court remanded the matter for a new sentencing hearing.

Appellant argues that the trial court abused its discretion when it denied his Romero motion to strike a prior conviction. Respondent replies that appellant waived his right to appeal and that in any case the court did not abuse its discretion. Court affirmed.

In this appeal from an order terminating his parental rights to his son and his daughters, appellant (father) contends that reversal is mandated because the juvenile court committed structural error in refusing to file his petition under Welfare and Institutions Code section 388. Appellant also contends the court compounded its error by failing to apply the so-called “benefit exception” set forth in section 366.26, subdivision (c)(1)(A). Neither claim has merit. The court agreed that the juvenile court erred in refusing to file the petition, but did not perceive the error as structural. Rather, court applied the Chapman standard and found the error to be harmless beyond a reasonable doubt. As for father’s remaining contention, he has forfeited the issue for failing to address it below, andthe evidence does not support his position. Order Affirmed.

Mother appeals from an order of the dependency court terminating her parental rights as to her four-year-old son. Court found no error and affirmed the judgment.

Appellants city council and city administrator of the City of Chowchilla (the city) ended the city’s employment of respondent as chief of police. Respondent sued appellants for breach of contract and wrongful termination; respondent included within the complaint a petition for writ of mandate seeking enforcement of his rights claimed under the Public Safety Officers Procedural Bill of Rights Act, Government Code section 3300 et seq. (hereafter, the Act). The court bifurcated trial of the petition for writ of mandate and the complaint. Trial on the petition has been held; there is nothing in the record before us stating that the trial on the complaint has occurred. After trial on the petition to the court sitting without a jury, the court granted in part the petition for writ of mandate. Appellants filed a petition in this court for writ relief; that petition was denied. Appellants then filed the present appeal.
This is an appeal from a nonappealable partial judgment. Accordingly, court dismissed the appeal.

Defendant was convicted of the first degree murder of Paul Lemos. In addition, the jury found true the special circumstance that the murder was committed during the commission of an attempted robbery. The jury also found that a principal discharged a gun causing death during the commission of the offense and that the crime was committed for the benefit of a criminal street gang. Defendant appeals, claiming he was not provided the effective assistance of counsel and the trial court erred in denying his motion for mistrial after his counsel was arrested for driving under the influence of methamphetamine after the verdict but before sentencing. In addition, defendant asserts the evidence was insufficient to support his conviction and the special circumstance, and the court erroneously instructed the jury regarding conspiracy. Court affirmed.

Appellant was convicted of two counts of attempted premeditated murder based on his firing a single shot at two women during the course of a botched robbery. Relying on the fact he fired only one shot, he contends one of the counts must be reversed for insufficient evidence. Defendant also contends the court prejudicially erred in giving CALJIC No. 8.66.1, the so-called “kill zone” instruction. Court disagreed with his contentions and affirmed the judgment.

Defendant sentence for transportation of a controlled substance was enhanced by three prior drug convictions. Defendant argues that two of those convictions arose from the same set of facts, and he should therefore have been given only one enhancement for both to avoid dual punishment. Court agreed and therefore order the judgment modified accordingly. Defendant also argues an error was made calculating his custody credits. Court found that he is partly correct and order the judgment modified accordingly.

After the commencement of trial in the action brought by Sidney Thulin to dissolve his marriage to Karen Thulin, Karen joined a third party who claimed an interest in property that allegedly belonged to the community. The third party filed a peremptory challenge against the trial judge, which was accepted as timely. Karen filed a petition for relief from the order, claiming the challenge was untimely because trial had begun. Court notified the parties we were considering the issuance of a peremptory writ of mandate in the first instance, and all parties filed a response. After reviewing the parties’ arguments and the case law, court found the challenge was untimely and granted the petition.

On appeal, defendant requested the court to independently review the record. No arguable issues were found. The judgment is affirmed.