CA Unpub Decisions
California Unpublished Decisions
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Defendant and appellant David Fitzgerald Gadley contends the trial court abused its discretion when it struck, for purposes of sentencing, one but not both of defendant’s prior strikes. We conclude the court acted well within the bounds of judicial discretion; accordingly, we affirm the judgment.
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Defendant and appellant Francisco Antonio Villalobos pled no contest to an amended count of violation of Penal Code section 220, subdivision (a), assault with intent to commit rape. The court suspended imposition of sentence and placed defendant on formal probation with a term of incarceration as a condition of probation. This appeal concerns one of the additional conditions of probation imposed by the court.
In its oral imposition of terms of probation, the court stated: “You are not to use or possess or associate with those who use or possess any dangerous drugs or narcotics and not to use or possess any dangerous drugs or narcotics without a lawful prescription. You are to submit to drug testing.†This was translated in paragraph 33 of the minute order of the sentencing hearing succinctly, but somewhat inaccurately, as: “Do not use drugs.†|
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In July 2012, Zimbalist Eugene Morrison stole two bottles of vodka from a grocery store. He pled guilty to petty theft with prior theft convictions (Pen. Code, §§ 484, 666) and admitted having suffered a strike conviction (Pen. Code, § 667 subds. (b)-(i)) and having served a prior prison term (Pen. Code, § 667.5, subd. (b)). In August, the court dismissed the prison prior and sentenced Morrison to 32 months in prison (twice the lower term). The court imposed a $154 criminal justice administration fee (booking fee) pursuant to Government Code, section 29550.1.[1] Morrison appeals, contending that imposition of the section 29550.1 booking fee violates the equal protection clause because that section does not require a finding of ability to pay, unlike the booking fees set forth in sections 29550 and 29550.2, and there is no rational basis for distinguishing section 29550.1 from the latter two sections.
Morrison did not object in the trial court to the imposition of the booking fee. He has thus forfeited his right to challenge the fee on appeal. (People v. McCullough (2013) 56 Cal.4th 589, 593.) Morrison requests that we exercise our discretion to consider the merits of the equal protection issue. (People v. McCullough, supra, 56 Cal.4th at p. 593.) We decline to do so. |
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Appointed counsel for defendant Thomas Joseph Melger asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, we will modify the judgment to award defendant 85 days of presentence custody credit and 42 days of presentence conduct credit. Finding no other arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment as modified.
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On February 2, 2012, Randy Lane sold rock cocaine base to a police informant. He was charged with possession of cocaine base for sale, a violation of Health and Safety Code section 11351.5,[1] count 1, and sale/transportation/offer for sale of a controlled substance, a violation of section 11352, subdivision (a), count 2. It was further alleged he had suffered two prior convictions within the meaning of section 11370.2, subdivision (a) and three prior felony convictions within the meaning of Penal Code section 667.5, subdivision (b).
Following advisement of his rights and the consequences of entering a guilty plea, Lane pleaded no contest to count 2. The trial court found the plea was factually supported and knowing, intelligent and voluntary. It dismissed the remaining count and special allegations and, consistent with the plea agreement, sentenced Lane to the midterm of four years in county jail (§ 11352, subd. (a)); Pen. Code, § 1170, subd. (h)(2)), awarded 300 days good conduct credit, and ordered him to pay a restitution fine of $400 (Pen. Code, § 1202.4, subd. (b)), a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 conviction assessment (Gov. Code, § 70373), and a $50 lab fee (§ 11372.5) and to provide biological samples (Pen. Code, § 296, subd. (a)(1)) and register as a narcotics offender (§ 11590, subd. (a)). |
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Kenneth A. Powell appeals a judgment of conviction after he expressly waived his constitutional rights and pleaded guilty to 11 counts of grand theft and four counts of theft from an elder person, and admitted great taking and pattern of fraudulent transactions. (Pen. Code, §§ 487, subd. (a), 368, subd. (a), 12022.6, subd. (a)(1),[1] 186.11, subd. (a).) The trial court sentenced Powell to 18 years in prison, and awarded him 672 days of presentence custody credit. The court also imposed a $3,600 restitution fine, a $3,600 parole revocation restitution fine (stayed), a $600 court security assessment, a $525 criminal conviction assessment, and ordered victim restitution. (Id., §§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.) It then dismissed the remaining counts and allegations on the motion of the prosecutor.
We appointed counsel to represent Powell in this appeal. After counsel's examination of the record, he filed an opening brief raising no issues. On February 22, 2013, we advised Powell by mail that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We have not received a response. We have reviewed the entire record and are satisfied that Powell's attorney has fully complied with his responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed. |
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Defendant Tomeko Shane Tyler appeals from a judgment entered after a jury convicted him of one count of unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a) and one count of evading an officer with willful disregard for safety of persons and property in violation of Vehicle Code section 2800.2, subdivision (a). After the jury deadlocked on a felony charge of resisting an executive officer in the performance of his duties in violation of Penal Code section 69, Tyler pled “no contest†to a misdemeanor charge of resisting a police officer in violation of Penal Code section 148, subdivision (a)(1). On appeal, Tyler requests that we conduct an independent review of the trial court’s in camera Pitchess[1] hearing, contends that the trial court erred in failing to stay under Penal Code section 654 his sentence on the section 148 resisting a police officer charge, and contends that the trial court erred in calculating his good conduct credits under Penal Code section 4109. We affirm.
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Luis Lazaro Carranza (Carranza) and Miguel Cota (Cota) were convicted of the murder of Jose Vera (Vera) and the attempted murders of David Garcia (Garcia) and Jose Loza (Loza). Carranza argues that the trial court committed prejudicial state and federal constitutional error when it excluded his third party culpability defense. Cota joins in that argument. In addition, Cota argues that his Sixth Amendment right to confrontation was violated when the trial court allowed the prosecutor to rely on certified minute orders to prove predicate offenses for purposes of a gang enhancement, and when it allowed the People’s gang expert to express opinions based on testimonial hearsay. Beyond that, Cota contends that his right to a jury trial and proof of guilt beyond a reasonable doubt were violated when the trial court made findings of fact and imposed victim restitution fines that were punitive.
We affirm. |
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This is an appeal and cross-appeal from an order denying in part and granting in part a special motion to strike under Code of Civil Procedure section 425.16, the “anti-SLAPP statute.â€[1] The lawsuit was filed by plaintiff Knowledge and Intelligence Program Professionals, Inc. (KIPP) against four defendants: two state agencies, the Commission on Peace Officer Standards and Training (POST) and the California Specialized Training Institute (CSTI) (the state defendants), and two individuals, CSTI employee Anthony Lukin (Lukin) and Kenneth L. Whitman (Whitman), a special consultant to POST (collectively defendants).[2] We conclude that the causes of action do not arise from protected activity. We reverse only that part of the order granting the motion to strike in favor of the state defendants and awarding them attorney fees.
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Appellant and defendant K.G. appeals from the dispositional order of the juvenile court following a negotiated resolution of a third Welfare and Institutions Code section 602 petition, pursuant to which defendant admitted committing felony assault (Pen. Code, § 245, subd. (a)(4))[1] while in juvenile hall. His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the disposition order.
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A jury convicted defendant Gregorio Marin Venegas of assaulting and inflicting great bodily injury upon Salvador Flores. At trial, the district attorney questioned defendant about an earlier incident, then being separately charged as misdemeanor vandalism, in which he lit his ex-girlfriend’s clothes on fire. Defendant asserts evidence of this prior misconduct was inadmissible and the prosecutor’s questioning and argument to the jury violated his Fifth Amendment right against compelled self-incrimination. We reject defendant’s assertions and affirm.
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Plaintiff Freida Lee appeals a judgment and attorney fee award entered after the trial court granted summary judgment to defendants American Agencies, American Credit Agencies, Inc. (ACA, Inc.), and ACA Receivables Co., LLC (ACA Receivables) in this purported class action for unfair debt collection practices. She contends the trial court erred in granting summary judgment on her claims under the Rosenthal Fair Debt Collection Act (Civ. Code, § 1788 et seq.) and the federal Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.) (FDCPA) and in awarding attorney fees to defendants. We shall reverse the award of attorney fees and otherwise affirm the judgment.
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Defendant Jason Michael Castillo pleaded guilty to driving with a blood-alcohol level of .08 or higher and admitted suffering three prior convictions for driving under the influence of alcohol or drugs. The trial court placed him on probation with conditions. On appeal, defendant challenges three conditions. We modify two of the conditions and affirm the probation order.
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Having previously granted review, the California Supreme Court filed its decision in this case on May 16, 2013. (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807 (Biancalana).) The Supreme Court reversed the judgment previously rendered by this court and transferred the matter to us for further proceedings consistent with the views expressed in its opinion.
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