CA Unpub Decisions

Defendant Damar Johnson entered a guilty plea to one felony count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) on January 22, 2007. On February 16, 2007, the court suspended imposition of sentence and placed defendant on probation for three years. The court imposed a 10-month county jail sentence as a condition of probation, with 84 days of credit for time served.
On August 29, 2008, the prosecutor filed a motion to revoke defendant's probation. The supplemental report filed by the probation department alleged defendant violated the probation condition obligating him to lead a law-abiding life. On May 11, 2010, defendant admitted he violated his probation by unlawfully selling a controlled substance. The court revoked and reinstated defendant's probation. The court also imposed a county jail term of 339 days with 339 days' credit for time served.

Petitioner Tcinque Sampson, an inmate of Pelican Bay State Prison, was validated as a prison gang member prior to January 25, 2010 and placed in a Security Housing Unit (SHU). Effective January 25, 2010, an amendment to Penal Code section 2933.6[1] denies conduct credits to inmates, like petitioner, who are validated gang members placed in a SHU. Sampson filed a petition for writ of habeas corpus to regain his conduct credits on the ground that the application of the amended statute to him violated the Ex Post Facto Clauses of the federal and state Constitutions. The superior court agreed in part and gave petitioner nine months of conduct credit. The People appealed and we now reverse, because the statute is not retrospective in its application to petitioner.

Appellant, a resident at Napa State Hospital, was charged with one count of making criminal threats (Pen. Code, § 422)[1] and one count of assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) Pursuant to a plea agreement, appellant pled no contest to the latter charge, and the court sentenced him to the upper term of four years in state prison. Pursuant to People v. Wende (1979) 25 Cal.3d 436, he appeals and asks that we examine the record to determine if there are any issues therein deserving of further briefing. We have done so, find none, and hence affirm the judgment of conviction.

Aegis Medical Systems, Inc. (appellant) appeals the denial of its petition, which sought a declaratory judgment that the policy set out in a bulletin issued by California's Department of Alcohol and Drug Programs (ADP) and its director, Renee Zito (respondents), is a â€

In a May 18, 2010 juvenile wardship petition, the People alleged T.J. (the minor) committed second degree robbery. (Welf. & Inst. Code, § 602, Pen. Code, §§ 211, 212.5.) At a jurisdictional hearing on June 14, 2010, the minor pleaded no contest to felony grand theft from a person (Pen. Code, § 487, subd. (c)) and misdemeanor battery (Pen. Code, § 242) and the court determined she came within the provisions of section 602. The court ordered the probation and social services departments to conduct an assessment pursuant to Welfare and Institutions Code section 241.1[1] after determining the minor appeared to be a dependent of the court. (§ 300.) In late June 2010 -- and pursuant to the court's order -- the probation and social services departments conducted the section 241.1 assessment. At the dispositional hearing on July 16, 2010, the court dismissed the minor's section 300 petition, adjudged her a ward of the court, and placed her on probation. The court concluded that declaring the minor a ward of the court would serve her best interests and the protection of society.

In 1993, defendant Kim Viet Vu assaulted three people, including a police officer, with a razor cutter. He was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and sent to state prison. While serving his sentence he was transferred to a state mental hospital for treatment of a mental disorder. (Pen. Code, § 2684.)[1] As he neared the end of his prison term he was involuntarily committed to the mental hospital for one year as a mentally disordered offender (MDO). (§ 2970.) His involuntary MDO commitment has been extended in one-year increments several times over the years. (§§ 2970, 2972, subd. (e).) He appeals from the latest court order extending his MDO commitment. He contends the trial court erred by allowing the People's expert to â€

Defendant was sentenced to prison after he violated the terms of his probation. He argues that the trial court (1) impermissibly imposed a second restitution fine, and (2) erred by not applying the version of Penal Code section 4019[1] in effect when he was sentenced to all of the days he served in presentence local custody. We conclude that defendant's second argument has merit. We therefore remand the matter for a recalculation of defendant's presentence credits, and otherwise affirm.
I.

Robert Barnes has filed an appeal and petition for writ of habeas corpus challenging the trial court's revocation of his probation. He argues that the prosecution's failure to disclose deficiencies in the processes and practices of the San Francisco Police Crime Laboratory violated his right to due process and the rule of Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], and compels reversal. Because the material Barnes seeks could not reasonably have affected the outcome of his probation revocation proceedings, we affirm.

Defendant was convicted following a jury trial of five counts of vehicular manslaughter while intoxicated without gross negligence (Pen. Code, § 191.5, subd. (b)).[1] He claims in this appeal that his right to a fair trial was denied by the trial court's erroneous response to a question submitted by the jury during deliberations. We conclude that the trial court's response to the jury questions was not deficient, and affirm the judgment.

Jerry D. Carroll (Carroll) appeals from a judgment entered after a court trial. He contends the court erred in ruling that respondents had acquired a prescriptive easement to the portion of a driveway that is on his property, because respondents did not prove the elements required for the acquisition of a prescriptive easement and, even if they had, he proved that he extinguished the easement by placing a chain across the driveway. We will affirm the judgment.

Plaintiff Laura Esmeralda Contreras (Contreras) appeals and defendants Gordon and Carol Butterworth (the Butterworths)[1] cross-appeal an order granting in part and denying in part the Butterworths' special motion to strike Contreras's complaint pursuant to the anti-SLAPP[2] statute (Code Civ. Proc., § 425.16). The Butterworths contend the trial court erred in concluding Contreras demonstrated a probability of prevailing on her malicious prosecution and tenant harassment causes of action. Contreras contends the trial court erred in concluding she did not demonstrate a probability of prevailing on her wrongful eviction cause of action. We reverse the trial court's order granting the motion to strike the wrongful eviction cause of action and otherwise affirm.

A jury concluded defendant Kerry Nhep was the perpetrator in a shooting incident in Oakland that left one young man dead and another seriously injured, and found him guilty of murder and premeditated attempted murder. The jury also found true associated enhancements for use of a firearm and infliction of great bodily injury. Defendant appeals his conviction and the sentence imposed on the following grounds: (1) the trial court erred by refusing his request for jury instructions on accomplice testimony; (2) defense counsel rendered ineffective assistance by failing to request instructions on accomplice testimony under an aiding an abetting theory based on the natural and probable consequences doctrine; (3) the prosecutor committed misconduct in rebuttal argument by mischaracterizing the concept of reasonable doubt; (4) CALJIC No. 2.21.2 reduced the prosecution's burden of proof; (5) the trial court imposed an unauthorized sentence. After carefully considering defendant's contentions, we conclude that only number (5) has merit. Accordingly, for reasons set forth below, we affirm defendant's convictions, modify the sentence imposed on the attempted murder conviction, and remand for resentencing.[1]

R.C. (Father) appeals from orders (1) awarding sole legal and physical custody of his daughter J. to her mother, T.B. (Mother); (2) reducing his visitation rights; (3) requiring him to take anger management classes; and (4) sanctioning him in the amount of $2,500. We affirm the challenged orders.

This is an appeal from final judgment following a jury's conviction of defendant Anthony A. Merino on two counts of engaging in lewd conduct, and one count each of committing a lewd and lascivious act on a child 14 or 15 years old, false imprisonment and indecent exposure. We affirm.