CA Unpub Decisions

Defendant Curtis Walter Healan appeals from a judgment of conviction entered after a jury trial. Defendant was convicted of the continuous sexual abuse of a child (Pen. Code, 288.5, subd. (a)) and 10 counts of lewd acts with a child under the age of 14 ( 288, subd. (a)). The trial court sentenced defendant to 72 years in state prison: 12 years for the continuous sexual abuse and, pursuant to section 667.6, subdivision (c), consecutive full terms of six years for each of the lewd acts.
On appeal, defendant claims evidentiary and sentencing error, and prosecutorial misconduct. He also claims the trial court failed to conduct a full inquiry into his claim of ineffective assistance of counsel. Court agree with his claim of sentencing error and modify the judgment accordingly. Court reject his remaining claims of error.
Defendant additionally petitions this court for a writ of habeas corpus based on ineffective assistance of counsel. Court deny the petition.

Defendants Bobby Miguel Perez (Perez) and Jonathan Joseph Carrion (Carrion) appeal from judgments of conviction entered after a jury rendered verdicts of guilty on all counts. Perez and Carrion were convicted of the attempted murders (Pen. Code, 187, subd. (a), 664)of Halston Kearney (Kearney) and Craig Smith (Smith), and the jury found true the allegations that Carrion personally used a deadly weapon, a knife, and inflicted great bodily injury on the victims ( 12022, subd. (b)(2), 12022.7, subd. (a)). Perez and Carrion were convicted of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)) on Jaime Ceron (Ceron) and of battery ( 242) on Robert Johnson (Johnson). The jury found true the allegations that each of the crimes was committed for the benefit of a criminal street gang (186.22, subd. (b)(1)). The jury also found true the allegations that the offenses against Kearney, Smith and Ceron were hate crimes committed in concert with others ( 422.7, 422.75, subd. (b)) and that the crime against Johnson was committed because of Johnsons status or perceived status as African American ( 422.7). Each defendant admitted the truth of the allegation that he had suffered a prior serious or violent felony conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12).

Plaintiff Kmart Corporation appeals from the judgment entered in favor of defendants in this insurance dispute involving a security services company that Kmart retained. Court affirm in part and reverse in part.

Defendant and appellant Sorachat Phiewphaek was charged with one count of battery and one count of assault with a deadly weapon. Because the two counts arose out of unrelated, separate incidents occurring several months apart, defendant moved to sever them for trial. His motion was denied. After a first jury deadlocked on both counts, a second jury convicted him of the battery, but deadlocked on the assault. On appeal, he contends that the trial court prejudicially erred by denying his severance motion. He also contends that the court erred in admitting an unavailable witnesss testimony at the preliminary hearing, evidence of his prior misdemeanor conviction, and rebuttal evidence. Court reject these contentions and affirm the judgment.

Appellants Kimberly Kempton and Charles Kinney (appellants) appeal from the trial courts order awarding attorney fees to respondent Michelle Clark. Court affirm.

Defendant, Stacey Denise Johnson, appeals from her conviction, after a jury trial, of felony controlled substance possession (Health & Saf. Code, 11350, subd. (a)) (count 1) and misdemeanor loitering to commit prostitution (Pen. Code, 653.22, subd. (a)) (count 2). Defendant admitted she had previously been convicted of a serious and violent felony within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12. Defendants motion to dismiss her prior felony conviction was denied. (Pen. Code, 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) She was sentenced to four years in state prison on count 1 (the mid-term of two years doubled pursuant to Penal Code sections 667, subdivisions (b) through (i) and 1170.12) and six months concurrent on count 2. Defendant was ordered to pay: a $200 restitution fine (Pen. Code, 1202.4, subd. (b)); a $200 parole revocation restitution fine (Pen. Code, 1202.45); and, with respect to count 1, a $50 criminal laboratory analysis fee. (Health & Saf. Code, 11372.5.) Defendant was found to be in violation of her probation in two misdemeanor cases. As to the two misdemeanors, probation was terminated. As modified in the trial court on July 16, 2009, defendant received credit for 143 days of presentence custody plus 70 days of conduct credit for a total presentence custody credit of 213 days.

The owner of a condominium sued to set aside a deed to real property. The court found that the owner had intentionally quitclaimed her condominium to an acquaintance to protect it from creditors and entered judgment against her. Evidence showed that no creditor or any other party was prejudiced by the fraudulent conveyance which raised issues of whether the deed should be set aside as a matter of equity. The trial court, however, did not consider this issue. Accordingly, Court vacate the judgment and remand to the trial court for consideration of equitable doctrines.

Code section 388 and from an order under section 366.26 that terminated Lucilles parental rights and directed Victoria to be placed for adoption. These two appeals have been consolidated for all purposes. Court affirm both orders

Defendants Daniel C. (Father) and Justine H. (Mother) appeal from orders summarily denying their Welfare and Institutions Code section 388 petitions. Mother also appeals from the order under section 366.26 terminating her parental rights. Court affirm.

Defendant was sentenced to an aggregate term of 33 years in state prison, consisting of five years (the middle term) for kidnapping, plus 10 years (the upper term) for the arming enhancement and two years for the on bail enhancement; a consecutive eight months (one-third the middle term) for evading a peace officer; a consecutive one year (one-third the middle term) for transportation of methamphetamine, plus three full, consecutive three year terms for each prior narcotics conviction, plus four years (the middle term) for the arming enhancement; a consecutive eight months (one-third the middle term) for possession of cocaine, and a consecutive eight months for being a felon in possession of a firearm.

Convinced that the driver of a black Lincoln was the same man who had hit his motorcycle two weeks before, defendant Benny Earl Gray followed the car into a convenience store parking lot, confronted the driver, and hit him in the back of the head with a baseball bat. Defendant next used the bat to smash the car windows, causing glass to fly into the eyes of a young female passenger. He ultimately pled no contest to two counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and, as to the driver, admitted he personally inflicted great bodily injury. ( 12022.7, subd. (a).)
Thereafter, the trial court denied defendants request for a diagnostic test pursuant to section 1203.03, denied defendant probation, and sentenced him to seven years in state prison. On appeal, defendant contends the trial court abused its discretion in failing to refer him for a diagnostic test.Court shall affirm the judgment.

After defendant Keith William Kepple entered a negotiated plea of guilty to possessing cocaine (Health & Saf. Code, 11350, subd. (a)), the trial court suspended imposition of sentence, placed defendant on three years probation, and ordered him to pay various fines and fees, including a $400 restitution fine (Pen. Code, 1202.4, subd. (b)). The court also imposed a $50 criminal laboratory analysis fee (Health & Saf. Code, 11372.5), plus penalty assessments on that fee of $120, for a total of $170.

Defendant Larry Eugene Glenn molested Jane Doe No. 1 from the time she was 5 years old until she was 12 or 13 years old. He molested Jane Doe No. 2 from the time she was 7 years old until she was approximately 10 years old. He also molested Jane Doe No. 3 when she was approximately 9 years old.
Defendant pled guilty to the continuous sexual abuse of Jane Doe No. 1 and Jane Doe No. 2 (counts one and two) and to committing lewd and lascivious acts on Jane Doe No. 3 (count three) -- all victims having been under the age of 14 at the time of the offenses. In exchange for his plea, three additional counts concerning Jane Doe No. 3 were dismissed.
The trial court sentenced defendant to the upper term of 16 years on count one, a concurrent upper term of 16 years on count two, and a concurrent upper term of eight years on count three. Defendant was ordered to pay a $600 restitution fine and a $600 parole revocation fine. He was awarded 508 days of custody credit

Defendant Dennis Roberson pled no contest to petty theft with a prior conviction in 2005 for the same offense. His ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, 110. Pursuant to the latter, we provide the following summary of the offense and the proceedings in the trial court.
The parties stipulated that the police report contained the factual basis for the plea. Defendant had put two bottles of Jack Daniels under his shirt and then left the store without paying for them. An employee detained him and recovered the merchandise.