CA Unpub Decisions

A jury found defendant Jerry Allen Judson guilty of first degree murder and premeditated attempted murder. (Pen. Code, 187, subd. (a); 664; all statutory citations are to the Penal Code unless indicated). The Attorney General concedes the first degree murder conviction must be reduced to second degree murder because the prosecutor elected at trial to proceed solely on a theory of implied malice, which constitutes second degree murder under these facts. Defendant contends the prosecution did not charge, and the jury did not find, defendant willfully deliberated and premeditated the attempted murder. Finally, defendant argues the trial court erred by failing to instruct the jury they must unanimously agree on which act constituted attempted murder. For the reasons expressed below, Court affirm the judgment as modified.

A jury convicted defendant Regis Anthony Cooper of second degree murder. The court sentenced him to 15 years to life and imposed a restitution fine of $5,000, a parole revocation fine of $5,000, a criminal conviction fine of $30 under Government Code section 70373, subdivision (a), and restitution in the amount of $7,500. Defendant appeals, contending that the court improperly admitted character evidence and denied admission of evidence of his victims lifestyle, that a witnesss statements were coerced, that his own statements violated Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda), and that the $30 assessment was erroneous. Court agree only with the latter contention and otherwise affirm the judgment. Defendant also notes that there are errors in the minute order and the abstract of judgment; Court agree and order the abstract corrected.

In August 2009 this court considered an appeal filed by D.S. (Mother) regarding the juvenile courts jurisdictional and dispositional orders regarding her five children (15-year-old boy, 9-year-old boy, 5-year-old girl, 3-year-old girl, and 2-year-old girl).[1] (In re J.S. (Aug. 18, 2009, G041354) [nonpub. opn.].) Court concluded there was ample evidence supporting the juvenile courts decision to sustain the petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b). (In re J.S., supra, G041354.) Specifically, the evidence (testimony and photographs) proved Mother had been physically and emotionally abusive for many years. She denied the abuse occurred, and she used fear tactics and threats of abandonment to convince her children to lie about the abuse. J.J., father of some of the children (Father) was also a party to the prior appeal, and we found merit with his claim concerning compliance with the Indian Child Welfare Act (25 U.S.C. 1901 et. seq.). (In re J.S., supra, G041354.) However, Father is not a party to this appeal and his prior claims are not relevant to the contentions before us now.

The juvenile court sustained a one-count petition alleging the minor Gregory H. had resisted, obstructed, and delayed a peace officer within the meaning of Penal Code section 148, subdivision (a)(1), a misdemeanor. According to the evidence at the jurisdiction hearing, on the night of January 10, 2009, between 50 and 100 police officers from various departments were called to the scene of a large melee occurring in front of a movie theater inside a shopping mall. Uniformed officer Jimmy Sola positioned himself at the top of the escalator outside the movie theater to ensure that no one attempted to enter the theater. As people came up the escalator to reach the theater, Sola and other officers directed them to take the escalator back down to the floor below, where they would leave the mall. The minor rode the escalator up to the movie theater, but twice refused to return to the floor below, each time telling Sola that he was waiting for a friend. The third time the minor refused, he also challenged Sola, who decided to arrest him. When Sola attempted to take the minor into custody, the minor backed away and attempted to flee. Sola managed to grab the minors shirt, which came off as the minor turned to run down the escalator. With the assistance of other officers, Sola was able to physically restrain the minor, who was yelling and kicking.

Defendant, Joseph Conto, appeals after he pled nolo contendere to two counts of making felony criminal threats (Pen. Code,[1] 422) and admitting that he had served two prior prison terms for felonies ( 667.5, subd. (b)). On May 1, 2008, the trial court sentenced defendant to five years and eight months in state prison. The court suspended execution of the sentence and placed defendant on formal probation for three years on condition that defendant serve 141 days in county jail. Defendant was awarded 141 total custody days consisting of 95 days of actual custody plus 46 days of conduct credit. Defendant was ordered to pay a restitution fine of $200 ( 1202.4, subd. (b)) and a $20 court security assessment fee ( 1465.8, subd. (a)).
On June 23, 2009, defendant was convicted of two misdemeanors: resisting, obstructing or delaying a peace officer ( 148, subd. (a)(1)) and driving without a license (Veh. Code, 12500). On August 13, 2009, the trial court found defendant in violation of the terms of his probation due to the section 148 conviction. The court sentenced defendant to five years and eight months in state prison. The court imposed a $200 restitution fine ( 1202.4, subd. (b)) and a $200 parole restitution fine ( 1202.45). Defendant was ordered to pay a $20 court security fee. The trial court awarded defendant a total of 268 days of credit.

A jury convicted defendant John Calvin Lacey, Jr., of passing a fictitious or altered bill with the intent to defraud. (Pen. Code, 476.) In a bifurcated proceeding, the trial court found that defendant had two strikes (id., 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms (id., 667.5, subd. (b)). After granting defendants motion to strike one strike, the trial court sentenced defendant to a total term of 10 years in state prison.
On appeal defendant contends: (1) he was deprived of due process and the effective assistance of counsel when inadmissible evidence of his confession came in without objection; (2) the prosecutor committed prejudicial misconduct by eliciting the evidence; (3) the trial court improperly admitted opinion testimony about defendants state of mind; (4) the trial court improperly admitted evidence of subsequent uncharged acts; and (5) the cumulative impact of these errors compels reversal. Disagreeing with all of these contentions, Court shall affirm the judgment.

Defendant Gabriel Wayne Price was convicted after a jury trial of 16 offenses he committed in connection with his sexual activities with S.H. Sentenced to 32 years in state prison, defendant appeals. Defendant contends the trial court erred in denying his motion to suppress photographic images retrieved from his cell phone. (Pen. Code, 1538.5; undesignated statutory references that follow are to the Penal Code.) He also contends his sentence on one of the counts should have been stayed pursuant to section 654. Finally, he contends, and the People concede, that the abstract of judgment contains an error. Court order the abstract corrected and affirm the judgment.

Jack Lemon appeals from a court order dissolving the parties marriage and ordering Jack to maintain Theresa Lemon as the beneficiary of his military Survivors Benefit Plan. Jacks sole claim on appeal is that the trial court abused its discretion in considering a declaration filed by Theresa Lemon that was not signed by Theresa, but by her attorney. Court affirm.

As defendant Jeremy Cole York was making a firecracker in his shed, it exploded and blew off some of his fingers. He pled guilty to manufacturing an incendiary device and, after twice violating his probation, was sentenced to prison for the upper term of three years. He contends on appeal the trial court abused its discretion in imposing the upper term. court reject his contention and affirm the judgment.

Following a contested jurisdictional hearing, the juvenile court sustained the allegations of petitions that minors E.H. (case No. JD228735, born in mid-1998) and C.C. (case No. JD228736, born in early 1995) were at substantial risk of serious physical harm because their mother, Heather B. (born 1977)[1] was unable to supervise or protect them adequately as the result of mental illness. At the dispositional hearing, the juvenile court ordered the removal of the minors from their mothers custody, and the provision of reunification services to the mother. Mother appeals from the judgment. (Welf. & Inst. Code, 395.)[2] She argues the evidence was insufficient to support jurisdiction because an expert did not specifically tie her mental illness to a risk of serious physical harm to either minor, the evidence otherwise did not make this connection, and E.H.s truancy of itself is not a proper basis for jurisdiction over him (nor does it support jurisdiction over C.C.). She also contends the evidence was insufficient to support a finding of either a substantial danger that would warrant the removal of the minors from her custody or the lack of a reasonable alternative to removal. Court shall affirm the judgment.

Crystal C. appeals the findings and orders entered at a hearing on petitions filed under Welfare and Institutions Code sections 387 and 388. 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 [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny her requests to review the record for error and to address her Anders issue. (Anders v. California (1967) 386 U.S. 738.)
Citing In re Phoenix H. (2009) 47 Cal.4th 835, Crystal's counsel also asks this court to exercise its discretion to provide Crystal the opportunity to file a supplemental brief in propria persona. The request is denied.

This appeal is from an order civilly committing appellant Raymond Swain, Jr., under what is commonly known as the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,[1] 6600 et seq.) to the State Department of Mental Health (Department) for an indeterminate term.[2] The commitment petition was filed on February 16, 2007, and went to jury trial on November 5, 2008. The jury concluded that Swain was a sexually violent predator (SVP) as defined by the SVPA, and the trial court ordered Swain committed. Swain challenges the validity of his commitment on a number of constitutional and statutory grounds. Based on the California Supreme Courts recent ruling in People v. McKee (2010) 47 Cal.4th 1172, we reverse the trial courts order.

James C. Holland appeals from four orders relating to his special demurrer and motion to strike based upon Civil Code section 1714.10.[1] Section 1714.10 generally provides that a plaintiff cannot assert a civil conspiracy cause of action against an attorney unless the plaintiff first obtains an order from the trial court judge. In this case, the trial court concluded that the plaintiffs in this case, Juan A. Rios and Lupe M. Rios (the Rioses), did not have to obtain an order because the case was subject to an exception in section 1714.10, subdivision (c). The trial court concluded that the exception applied because Holland owed an independent legal duty to the Rioses. For the following reasons, Court affirm.

Following the denial of his motion to suppress evidence (Pen. Code, 1538.5), appellant Eric General Wandick pled no contest to transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)). The court imposed a sentence of one year, representing one-third of the midterm, to be served consecutively to a sentence imposed in another case. The court also awarded appellant six days of presentence custody credit, consisting of four days of actual time credit and two days of conduct credit.
On appeal, appellant contends (1) the court erred in denying his suppression motion because he was unlawfully detained and his detention was unduly prolonged, and (2) he is entitled to additional conduct credit. Court will affirm.