CA Unpub Decisions

On July 13, 2009, defendant, Alexander Manuel Vasquez, pled no contest to two felony charges. Defendant never secured a probable cause certificate. We have a duty to raise issues concerning our jurisdiction on our own motion and therefore issued an order to show cause concerning possible dismissal of the appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) Defendant has failed to fully and timely comply with both Penal Code section 1237.5 and California Rules of Court, rule 8.304(b). (In re Chavez (2003) 30 Cal.4th 643, 651; People v. Mendez (1999) 19 Cal.4th 1084, 1099; People v. Way (2003) 113 Cal.App.4th 733, 736.) Without a probable cause certificate, defendant cannot appeal. (People v. Kaanehe (1977) 19 Cal.3d 1, 8; People v. Ribero (1971) 4 Cal.3d 55, 61; People v. West (1970) 3 Cal.3d 595, 600-601; People v. Ward (1967) 66 Cal.2d 571, 574-576.)
The appeal is dismissed.

A jury convicted defendant Rainer Christopher Wilson of elder abuse likely to cause great bodily injury or death upon B.T. (Pen. Code, 368, subd. (b)(1)count 1);[1] battery on a peace officer, a misdemeanor ( 243, subd. (b)count 2); providing false information to a peace officer, a misdemeanor ( 148.9, subd. (a)count 3); and battery upon B.N., a misdemeanor ( 242count 4). In connection with count 1, the jury found that defendant personally inflicted great bodily injury on a person older than 70 years of age. ( 12022.7, subd. (c).) In a separate sanity trial, the jury found that defendant was sane at the time of the offenses. In bifurcated proceedings, the court sustained two prior prison term allegations. ( 667.5, subd. (b).)
Sentenced to state prison, defendant appeals. He contends (1) the prosecutor committed prejudicial misconduct in her argument to the jury during the guilt phase of the trial, misstating the law with respect to the knowledge element of the offense of elder abuse; (2) insufficient evidence supports the jurys sanity finding, violating defendants state and federal constitutional right to due process of law and must be reversed with prejudice; and (3) the court erred in instructing the jury in the sanity phase of trial. Court will reverse the judgment and remand for new trial.

In 1989, when defendant Randy Ledbetter was 16 years old, a jury convicted him of attempted first degree murder, robbery, and first degree burglary. The jury also found, as to the attempted murder, that defendant inflicted great bodily injury on the victim. He was sentenced to a term of life with possibility of parole for the attempted murder plus a determinate term of five years, four months for the robbery and burglary. On November 14, 2007, at defendants sixth hearing before the Board of Parole Hearings (Board), the Board found defendant unsuitable for parole because he posed an unreasonable risk of danger to the public if released. The reasons cited by the Board were defendants unstable social history, his questionable sincerity in claiming that he was now taking full responsibility for the crime, and the aggravated circumstances of the attempted murder. On August 5, 2008, defendant filed a petition for writ of habeas corpus in the Butte County Superior Court seeking reversal of the Boards ruling. On November 18, the trial court (Judge Robert A. Glusman) granted the petition, finding that no evidence supported the Boards finding that defendant was currently dangerous. The court directed the Board to set a parole date and to release the defendant forthwith. On November 26, the People filed a notice of appeal from, and a request for a stay of, the trial courts orders. On December 1, Court granted the stay pending further order by this court.

On retrial after a hung jury and a mistrial on a first degree murder charge, a jury found Michael Anunciation guilty of second degree murder (Pen. Code, 187, subd. (a)).[1] On appeal, Anunciation contends the murder conviction should be reversed because the trial court prejudicially erred by (1) admitting expert testimony conveying a nontestifying forensic pathologist's autopsy findings, in violation of the Sixth Amendment's confrontation clause; (2) admitting statements Anunciation contends were obtained in violation of his Fifth Amendment rights; and (3) refusing to instruct the jury on the lesser-included offense of voluntary manslaughter based on theories of heat of passion and imperfect self defense. Court agree with Anunciation's contention regarding the autopsy report testimony, and accordingly reverse.

D.M. appeals an order terminating parental rights to her son, Samuel R., under Welfare and Institutions Code section 366.26. D.M. contends the court erred by terminating parental rights based on an inadequate permanency planning assessment report. She also asserts the court abused its discretion by denying her request for a continuance of the section 366.26 hearing. Court affirm the order.

The present case concerns an ongoing dispute about contact between union representatives[1]and workers at the Riverside County Regional Medical Center (the hospital). The County of Riverside complains that union representatives have interfered with the hospital providing medical care and preserving confidentiality for patients. Specifically, the County accuses Local 721 of intruding into restricted access and non-public areas and the County also claims a Local 721 representative impersonated a hospital employee. The Countys primary argument is that the superior court has jurisdiction over this dispute instead of the Public Employment Relations Board (PERB)either because PERB does not exercise jurisdiction over claims involving trespass and privacy or because the local concern exception applies.

Pursuant to a plea agreement, appellant Gabriel Hernandez Alvarado pled guilty to second degree robbery (Pen. Code, 211, 212.5, subd. (c))[1]and admitted an enhancement allegation that in committing that offense he personally used a firearm ( 12022.53, subd. (b)). The court imposed a prison term of 12 years, consisting of two years on the substantive offense and 10 years on the enhancement, and awarded appellant 132 days of presentence credits pursuant to section 2933.1, subdivision (c) (section 2933.1(c)). On appeal, appellant argues that (1) the trial courts award of presentence custody conduct credits calculated pursuant to section 2933.1(c), which limits such credits to 15 percent of actual time in custody, rather than section 4019, which contains a more generous credits provision, violated the plea agreement, and (2) the courts failure to advise appellant prior to his plea that credits would be calculated pursuant to section 2933.1(c) rendered appellants plea involuntary, in violation of appellants right to due process of law under the United States Constitution. Court affirm.

A jury found appellant guilty of inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)) and found true an allegation that appellant inflicted great bodily injury (GBI) upon the victim ( 12022.7, subd. (e)). In a bifurcated proceeding tried by the court without a jury, the court found true allegations that appellant had served two prior prison terms ( 667.5, subd. (b)), and had a qualifying prior felony conviction under Californias Three Strikes law ( 667, subds. (b)-(i)).) The court sentenced appellant to a prison term of 14 years. This consisted of four years for the section 273.5, subdivision (a) violation, doubled to eight years under the three strikes law (see 667, subd. (e)(1)), plus four years for the GBI enhancement, plus one year for each of the two prior prison terms. The court also imposed certain fines and/or fees, and issued a protective order requiring appellant to stay away from the victim for a period of three years. Imposition of a protective order was recommended in the probation report utilized by the judge at appellants sentencing, and appellant raised no objection at his sentencing hearing to imposition of the protective order.

Appellant, Gary Joseph Ortiz, pled guilty to voluntary manslaughter (Pen. Code, 192, subd. (a))[1]and admitted a gang enhancement (Pen. Code, 186.22, subd. (b)(1)). On October 22, 2008, the court sentenced Ortiz to an aggregate 21 year term, the aggravated term of 11 years on his manslaughter conviction and a 10 year gang enhancement. On appeal Ortiz contends: 1) the court abused its discretion when it imposed the aggravated term on his voluntary manslaughter conviction; and 2) he was denied the effective assistance of counsel. Court will affirm.

Appellant, A.A., contends that the juvenile court erred in committing him to the Tulare County Youth Facility Program for one year. Court disagree and will affirm the juvenile courts commitment order.

On August 10, 2009, petitioner filed in this court a petition for writ of habeas corpus that seeks permission to file a belated appeal in Tulare County Superior Court case number JJD061933. Court believe petitioner has made out an appropriate case for relief.

A jury found defendant Brian Michael Crosby guilty of first degree residential burglary (Pen. Code, 459; all statutory citations are to the Penal Code unless indicated), concealing stolen property ( 496, subd. (a)), and possession of marijuana (Health & Saf. Code, 11357, subd. (b)). He contends the trial court erred by denying his request for self-representation, failing to declare a mistrial because the prosecutor commented on his failure to testify, and finding a 1991 Florida conviction for burglary qualified as a strike under the Three Strikes law and as a prior serious felony under section 667, subdivision (a)(1). For the reasons expressed below, Court reject defendants attack on his burglary conviction, but conclude the record contains insufficient evidence to sustain the trial courts finding concerning the 1991 Florida burglary conviction. Accordingly, court reverse the judgment for a possible retrial on the prior conviction allegation.

Defendants contentions are numerous but meritless. The charges were properly joined because they are connected crimes of the same class. The lewd act convictions are sufficiently supported by victim testimony that defendant orchestrated a strip poker game with nine, 11, and 12-year-old boys. Expert testimony of Child Sexual Assault Accommodation Syndrome (CSAAS) and victim photographs were permissibly admitted. Evidence of the victims prior sexual activity was permissibly excluded. The court properly instructed the jury on adoptive admissions and constructive touching; it properly declined to instruct the jury on accomplice testimony and battery as a lesser included offense to three lewd act counts. The court permissibly remanded defendant into custody during the trial due to his misconduct and correctly declined to strike the multiple victim allegations. And defendant was not prejudiced by being bound over on three counts for which he was not convicted, or because the jurors failed to return an extra set of unused verdict forms.

This is an appeal from an order denying the defendants special motion to strike one cause of action of the plaintiffs amended complaint as a strategic lawsuit against public participation (SLAPP). As explained below, we conclude that the trial court acted properly in denying the defendants motion. Court therefore affirm the order.