CA Unpub Decisions

On April 10, 2009, San Bernardino police officers went to defendants residence to conduct a probation search. Upon arrival, they informed defendant of their purpose, and defendant submitted to a patdown search which yielded keys to two separate vehicles. Defendant has tattoos and is a documented member of the Five Times Hometown Crips street gang. Because defendant was known to drive both vehicles, the officers proceeded to search each. Officers found several live rounds of ammunition in the first car searched. There were .45-caliber rounds as well as nine-millimeter rounds found in the vehicle. In the second vehicle, an officer located a nine millimeter Smith and Wesson semi-automatic handgun, with a fully loaded magazine containing 10 rounds, wrapped in a green sweater. The handgun had been reported stolen.

Defendant Izahir Hernandez challenges his conviction for robbery and for participating in a criminal street gang. He argues that his right to due process was violated by the prosecutions use of an unduly suggestive in-court identification technique, and further contends the trial court committed prejudicial error when it failed to instruct the jury with a definition of the term judicial notice. Court disagree with his contentions and affirm the judgment.

Courtney Allan Rhodes was convicted of aggravated assault (Pen. Code, 245, subdivision (a)(1))[1] and sentenced to a two-year prison term. He argues the trial court erred by excluding evidence of the assault victims prior conduct, which Rhodes claims precluded him from presenting evidence relevant to his self-defense claim and thereby violated his state and federal Constitutional right to due process and a fair trial. Rhodes also argues the court abused its discretion by sentencing him to prison rather than granting probation as the probation department recommended. Finally, Rhodes points out that the abstract of judgment incorrectly states he was convicted of assault with a deadly weapon instead of aggravated assault. The Attorney General concedes this final issue. Therefore, we order the clerk of the superior court to correct the crime designation on Rhodes abstract of judgment and to forward a corrected copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

Relmon Henry Davis appeals from his conviction of forcible oral copulation with a knife use enhancement, and assault with a knife. He is serving a prison term of 18 years to life. Daviss sole claim of error concerns the admission of certain propensity evidence under Evidence Code section 1108, subdivision (a). (All further statutory references are to the Evidence Code.) Davis argues the admission of evidence of his prior sexual offenses against his 17 year old half sister caused him undue prejudice and violated his federal and state due process rights. Finding neither abuse of discretion nor constitutional violation, Court affirm.

Defendant Joyce Lynn Blevins entered a no contest plea to a charge of receiving stolen property. On appeal, defendant contends that the trial court erred in denying her motion to suppress evidence discovered in a warrantless search of her vehicle. Court affirm.

A jury found defendant Christopher Hughes guilty of committing a lewd and lascivious act on a child under age 14 (Pen. Code, 288, subd. (a) [count 1]; all further statutory references are to this code unless specified), three counts of forcible lewd acts on a child under age 14 ( 288, subd. (b)(1) [counts 4, 6, & 7]), aggravated sexual assault of a child under age 14 ( 269, subd. (a)(4) [count 5]), and misdemeanor child abuse ( 273a, subd. (b) [count 8]). He challenges the sufficiency of evidence to support his convictions for forcible lewd acts and aggravated sexual assault. For the reasons expressed below, Court affirm the judgment.

Leslie Mary Parris appeals from a judgment after the trial court entered judgment in Jeffrey A. Parriss petition for dissolution of marriage. She contends the trial court erroneously concluded it was bound to accept a special masters report regarding the division of personal property because it was a statement of decision and her objection was untimely. She also complains the court abused its discretion in awarding attorney fees and sanctions. None of her contentions have merit, and Court affirm the judgment.

Gerald Worley and Glendy Worley (collectively, Worley) appeal from a judgment that approved a class action settlement and set attorney fees. The action was brought against Storage USA Partnership, LP, doing business as Storage USA, Inc. and Extra Space Management, Inc. (collectively, Storage USA). Worley argues the fee award is inadequate and came about because an impermissible method was used to make the determination. Court agree and reverse with directions to redetermine fees.

In an earlier opinion, we reversed several counts against defendant Ronald Eugene Lais for the unauthorized practice of law (UPL) (Bus. & Prof. Code, 6126, subd. (b)) based on the insufficiency of the evidence, and we remanded the matter for resentencing. (People v. Lais (May 14, 2008, G036205) [nonpub. opn.].) On remand, the trial court sentenced Lais to 12 years and eight months in prison for the 17 remaining counts of UPL, including an enhancement for some of these crimes while out on bail. (Pen. Code, 12022.1, subd. (b).) Lais contends the trial court erred by resentencing him without addressing his request to appoint a new lawyer made six months earlier, just before remittitur of our opinion. As we explain, however, Lais abandoned that request. Simply put, the record demonstrates Lais requested new counsel under the impression his trial attorney had withdrawn. But although Lais himself chose not to appear at the new sentencing hearing or any of the five hearings leading up to sentencing, his trial attorney appeared at each of the hearings and Lais was so notified by mailed copies of the trial courts minute orders. Consequently, there was no basis for appointment of new counsel, who had not withdrawn. Court therefore affirm the trial courts sentencing order. Both parties agree the trial court correctly determined Lais was entitled to 1,123 days of actual custody credits, but omitted an amended abstract of judgment reflecting the figure, which Court direct the court to prepare and file.

The underlying facts of this case involve a dispute between neighbors over a newly installed and allegedly intrusive bathroom window. The legal questions before us involve issues of municipal administrative procedure and constitutional due process requirements. Appellants present the following claims: the trial court wrongly denied them the remedy of administrative mandamus relief, erred by failing to rule that exhaustion of administrative remedies would be futile, and erred by striking and dismissing the Critzers request for so-called traditional mandamus relief. They also present constitutional due process claims. Court disagree in each case and will affirm the judgment of the trial court.

Appellant Nevin Miller filed a petition under Probate Code section 21320,[1] seeking a determination that his proposed complaint would not violate the no contest provisions of his father's will, trust, and codicil to the will. The superior court concluded that the proposed action would be a contest. Appellant maintains that the action would not be a contest because he merely wished to establish his right to property pursuant to a contract with the decedent. Court agree with the superior court's ruling, however, and therefore will affirm the order.

A jury convicted defendant Bruce Douglas Mello of cultivating marijuana (Health & Saf. Code, 11358) over his medical-marijuana defense (id., 11362.5, adopted by Initiative (Prop. 215) at the Nov. 5, 1996, General Election). On appeal, defendant contends, among other things, that the trial court erred by admitting evidence and instructing the jury over objection as to a numeric limit (6 mature or 12 immature plants) on the amount of marijuana a qualified patient may lawfully possess in order to assert the medical-marijuana defense. (Id. 11362.77, added by Stats. 2003, ch. 875, 2.) The People concede the issue, and we agree that the concession is appropriate. And the parties agree that defendants secondary issues are moot. Court therefore reverse the judgment and remand for retrial.

211) with the finding that during the commission of the offense he personally used a firearm, a handgun, within the meaning of Penal Code section12022.53, subdivision (b). The jury deadlocked on two additional counts of second degree robbery and a mistrial was declared on these counts. He was sentenced to prison for 15 years, consisting of the upper term of five years plus ten years for the weapon enhancement.

The evidence relative to the robbery conviction established that on August 19, 2008, at approximately 2:20 a.m., Sheyrell Kiehlmeier was working as a cashier at a Shell gas station on North Garey Avenue in Pomona when appellant placed a bag of trail mix peanuts on the counter. After Ms. Kiehlmeier scanned the item to determine the price, appellant said, Never mind. Just give me your money. Appellant was holding a gun and said, Dont make me shoot you. Ms. Kiehlmeier was in fear and opened the cash register and put the money on the counter. Appellant picked up the money and left. Almost $500 was taken. Ms. Kiehlmeier knew the difference between an automatic and a revolver and saw appellant playing with the cartridge clip that housed the bullets. When appellant pulled out the clip, she saw bullets in it. Ms. Kiehlmeier thereafter identified appellant in a photo lineup and in court.

The juvenile dependency court entered dispositional orders which denied family reunification services to a minors mother. Court affirm.