CA Unpub Decisions

Defendant James Richard Allen pled guilty to committing robbery and criminal threats, and was sentenced to consecutive terms for the two offenses. He contends the trial court erred in not staying sentence for the criminal threats pursuant to Penal Code section 654. We shall affirm the judgment.

In April 2015, the Santa Clara County District Attorney filed a petition alleging that Y.A., a minor (then 17 years old), came within the provisions of Welfare and Institutions Code section 602, and he had committed acts which would have constituted two separate felonies had they been committed by an adult, namely assault with a deadly weapon (Pen. Code § 245, subd. (a)(1); count 1), and infliction of corporal injury upon a person with whom he has, or previously had, a dating relationship (§ 273.5, subd. (a); count 2). The District Attorney also alleged two enhancements as to both counts: personal infliction of great bodily injury (§§ 12022.7, subd. (e); 1203, subd. (e)(3)); and personal use of a dangerous or deadly weapon (§ 12022, subd. (b)(1)). After a contested jurisdiction hearing, the court sustained the petition as to both counts and found true the enhancements. The court placed the minor on probation.

Defendant James Michael Brady appeals from the court’s denial of his petition for recall of his sentence and resentencing under Penal Code section 1170.126 (enacted by Proposition 36). Defendant contends the court abused its discretion by finding his release would pose an unreasonable risk of danger to public safety. He further claims the court implicitly placed the burden on him to prove his rehabilitation. Finally, he argues section 1170.18’s definition of “unreasonable risk of danger to public safety” applies to section 1170.126. We disagree with defendant’s contentions. Accordingly, we affirm the court’s order denying his petition.

A jury found Uriel Ramirez guilty of kidnapping during a carjacking (Pen. Code, § 209.5) and reckless evasion of a peace officer (Veh. Code, § 2800.2, subd. (a)), and found firearm-use and gang enhancement allegations to be true. The trial court sentenced him to 30 years to life, plus 22 years. On appeal, defendant contends the trial court erred by failing to adequately instruct the jury regarding consent-defense concepts. He also contends the true finding on the gang enhancement allegation is not supported by sufficient evidence. We reject both contentions and affirm.

A jury convicted Donald Joseph Bessette of transportation of controlled substances (Health & Saf. Code, § 11379; count 1) and possession for sale of a controlled substance (§ 11378; count 2). It found true as to count 2 that the substance contained 28.5 grams or more of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)). The court sentenced Bessette to a split four-year term on count 1, with two years to be served in local custody and two years under mandatory supervision. It imposed but stayed the count 2 sentence under Penal Code section 654. As conditions of mandatory supervision, the court required Bessette to submit his computers, recordable media and personal phone to a search as required by the probation officer or law enforcement officer; and, obtain his probation officer's permission as to his residence and employment.

A jury found Cesar Cervantes Garcia guilty of 12 counts of lewd acts against a child under the age of 14. (Pen. Code, § 288, subd. (a) (section 288(a)).) The jury found true allegations that Garcia committed the offenses against more than one victim (§ 667.61, subd. (b)(c)(e)), had substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)), and committed two of the offenses when the victim was under the age of 18 and the criminal action commenced prior to the victim's 28th birthday. (§ 801.1, subd. (a).) The trial court sentenced Garcia to 180 years to life in prison.

Theresa McGregor, as trustee for the Theresa McGregor Trust dated October 20, 2004 (McGregor), appeals from a judgment dismissing her civil suit challenging the nonjudicial foreclosure sale of her home. The court dismissed the suit after sustaining without leave to amend a demurrer by JPMorgan Chase Bank, N.A. (JPMorgan); California Reconveyance Company (Reconveyance); Deutsche Bank National Trust Company, as trustee for Long Beach Mortgage Loan Trust 2006-8 (Deutsche); and Long Beach Securities Corporation (Long Beach) (collectively mortgagee defendants) on the grounds claim preclusion bars the suit and the operative second amended complaint otherwise failed to state any viable claims.
McGregor contends we must reverse the judgment because the court erred in both determinations. However, we conclude claim preclusion bars the suit and affirm the judgment. Given our conclusion, we do not address whether the second amended complaint otherwise states any viable claims.

Appointed counsel for defendant Dennis Scott Sawyer asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Because defendant seeks review of a nonappealable postjudgment order, we will dismiss the appeal.
In case Nos. P12CRF0352, P12CRF0548, and P12CRF0549, the trial court sentenced defendant in 2014 to an agreed-upon term of nine years four months pursuant to Penal Code section 1170, subdivision (h). In 2016 defendant filed a postjudgment motion for modification of his sentence in all three cases. The trial court denied the motion and defendant filed an appeal in case No. P12CRF0352.

Defendant Minh Dang appeals from a judgment upon a jury verdict finding him guilty of unlawful possession of drug paraphernalia in prison. (Pen. Code, § 4573.6. ) He contends his due process right to a fair trial was prejudicially impaired because he was unjustifiably and visibly shackled throughout the trial. We agree and reverse the judgment.

S.B. (Minor) appeals an order denying his request to expunge his DNA from the state’s DNA database.
In 2013, Minor admitted felony grand theft (Pen. Code, § 487, subd. (c)) and misdemeanor battery (§ 242) and was adjudged a ward of the court. He provided a DNA sample pursuant to the DNA and Forensic Identification Database and Data Bank Act of 1988. (§ 295 et seq.; § 296.1.) In 2015, Minor petitioned to have his felony offense reclassified as a misdemeanor pursuant to Proposition 47, the Safe Neighborhood and Schools Act, and to have his DNA expunged from the state’s DNA database. (§ 295 et seq.; see § 490.2.) The juvenile court granted Minor’s request to reduce the felony charge to a misdemeanor but denied his request to remove the DNA sample and expunge the data from the database. Minor contends the juvenile court erred and that it deprived him of his constitutional right to equal protection in denying his request.

A jury found defendant Joseph Daniel Westcott guilty of cultivating marijuana and being a felon in possession of ammunition. On appeal, he contends his sentence for being a felon in possession of ammunition was unauthorized because his prior Michigan conviction was for a misdemeanor and not a felony. He also contends the trial court erred when it instructed the jury that he was previously convicted of a felony, rather than instructing the jury that it was required to find whether he was previously convicted of a felony. We conclude the trial court erred in instructing the jury that defendant’s prior conviction was a felony; however, that error was harmless beyond a reasonable doubt because under Michigan law, defendant’s prior conviction was a felony. Accordingly, we affirm.

Defendant Joseph Phillip Navarrete purports to appeal from an order denying his postjudgment motion to waive or modify his sentence by reducing or vacating the restitution fine on the ground of inability to pay the fine.
Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. We shall dismiss the appeal as taken from a nonappealable order.

“On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified at Penal Code section 1170.18, which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce the felony to a misdemeanor. Defendant Michael Stevens appeals from an order denying his petition to reduce his commitment conviction from a felony to a misdemeanor, and denying reconsideration of the order denying the petition.

This appeal arises out of a condemnation action in which Fred Southam and Southam & Son (collectively Southam) sought to introduce evidence of the value of their land for an underground natural gas storage project based on reservoir volume. The trial court’s in limine ruling excluded Southam’s valuation approach based on evidence all independently operated gas storage projects in California compensate landowners based on surface acres contributed to the project. Based on surface acre valuation testimony at trial, the jury found Southam is entitled to a minimum rent of $400 per acre per year for 80 acres and an overage rent of 11.82 percent times 4 percent of the annual gross income (AGI) of the 677-acre project.