CA Unpub Decisions

On September 28, 2000, Reginald Turner was charged by amended information with grand theft of personal property valued in excess of $400 (Pen. Code, 487, subd. (a)). The information specially alleged Turner had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had previously served four separate terms for felonies. (Pen. Code, 667.5, subd. (b).)

A.N. (mother) appeals from the judgment of May 20, 2009, declaring her 12-year-old son J., 10-year-old daughter A., five-year-old son T., and two-year-old daughter K. (the children) dependents of the court under Welfare and Institutions Code section 300,[1]based on sustained jurisdictional allegations under section 300, subdivisions (a), (b), and (j). Mother contends substantial evidence does not support the findings under section 300, subdivisions (a) and (j). Mother does not challenge jurisdiction under section 300, subdivision (b). As dependency court jurisdiction rests upon an uncontested ground, we need not address her contentions. Moreover, substantial evidence supports the findings under section 300, subdivisions (a) and (j). Court affirm the judgment.

Defendant, Levon Davis, purports to appeal from an April 20, 2009 order denying his coram nobis petition. We previously affirmed the judgment in defendants direct appeal. (People v. Davis (Sep. 26, 1994, B080241) [nonpub. opn.].) On May 3, 2007, we summarily denied defendants habeas corpus petition. (In re Davis (May 3, 2007, B198415) [nonpub. order].) On July 25, 2008, we summarily denied a second habeas corpus petition filed by defendant. (In re Davis (Jul. 25, 2008, B209343) [nonpub. order].) We issued an order to show cause re dismissal and set the matter for oral argument as we are required to raise issues concerning jurisdictional questions on our own motion. Jenningsv. Marralle (1994) 8 Cal.4th 121, 126; Olsonv. Cory (1983) 35 Cal.3d 390, 398.)

The father of an infant declared a dependent of the juvenile court under Welfare and Institutions Code section 300,[1]raises constitutional and evidentiary challenges to the juvenile courts jurisdictional findings. The father also challenges the juvenile courts order denying reunification services because of his conviction for a violent felony, and the courts refusal to remove the child from the home of the caregivers and prospective adoptive parents with whom he has lived since birth, to place him with paternal relatives. Finding no error and no abuse of judicial discretion, Court deny the fathers writ petition.

A jury found defendant Aaron Anderson guilty of the felonies of inflicting injury on a cohabitant, assaulting the cohabitant by means of force likely to inflict great bodily injury, and vandalism of police property, but was unable to reach a verdict on a further charge of resisting a peace officer. The court declared a mistrial as to the latter. The jury then sustained various recidivist allegations. The court sentenced defendant to concurrent life sentences for the two crimes against the cohabitant victim, with a consecutive life term for the vandalism (along with related recidivist enhancements). On appeal, defendant contends court and counsel disregarded substantial evidence of his incompetence to stand trial, which was at least sufficient to require the court to deny his motion to represent himself. He also argues his shackling at trial was not justified and was prejudicial, the trial court erred in imposing sentence on both crimes against the cohabitant victim because they were part of an undivided course of conduct, and the court in its rendition of judgment identified the wrong victim in the restitution order. The People concede the latter. Court accept the concession, and will otherwise affirm the judgment with directions to prepare an amended abstract of decision.

Following a jury trial, defendant Siem Yong was convicted of possession of methamphetamine for sale and possession of a firearm during the commission of that offense. In bifurcated proceedings, the court found true the allegation that defendant had suffered a serious prior juvenile adjudication. On appeal, defendant contends his prior juvenile adjudication could not be used as a strike because he did not have the right to a jury trial in the juvenile proceedings and that the court abused its discretion in refusing to strike his prior juvenile adjudication under Penal Code section 1385 (undesignated statutory references that follow are to the Penal Code). Court affirm the judgment.

A jury found defendant Ryan James Ellis guilty of assault with a firearm (Pen. Code, 245, subd. (a)(2)),[1] with a true finding that he personally used a firearm in the commission of the offense ( 12022.5, subds. (a), (d)). The jury subsequently found true the allegation that defendant had sustained a prior robbery conviction that qualified as a strike within the meaning of the three strikes law. ( 667, subds. (b)-(i).) Sentenced to a nine-year state prison term, defendant appeals. His sole contention is that the doubling of his sentence as a second strike based on a prior juvenile adjudication violated his federal jury trial guarantee as articulated by the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455] and Blakely v. Washington(2004) 542 U.S. 296, 303305 [159 L.Ed.2d 403, 413-415]. Since the briefs were filed, the California Supreme Court has settled the issue. In People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), the state high court rejected the type of constitutional challenges defendant raises here. Following Nguyen, Court shall affirm the judgment.

Defendant Monica Ann Cooper pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, 11378--count 1) and misdemeanor child endangerment (Pen. Code, 273a, subd. (b)--count 2) in exchange for dismissal of other charges against her. She was released on her own recognizance for nearly two years, after which the trial court suspended imposition of sentence and placed her on four years formal probation. Defendant subsequently admitted violating probation after testing positive for methamphetamine. The court revoked probation and sentenced defendant to two years in state prison, minus 225 days of presentence custody credit. On appeal, defendant contends the trial courts revocation of probation was an abuse of discretion. She also contends she is entitled to nine additional days of custodial credits.
Court affirm the judgment.

After the jury heard evidence that defendant Lorie Deann Jones, a former Hallmark store employee, processed false merchandise returns, it found her guilty of five counts of petty theft (Pen. Code, 484, 488; undesignated statutory references are to the Penal Code) and five counts of identity theft ( 530.5, subd. (a)). Defendant thereafter admitted a prior theft conviction, thereby elevating each petty theft charge to a conviction for petty theft with a prior, a felony. ( 666.) Defendant was sentenced to state prison for six years eight months, consisting of three years on count 1, the first identity theft charge, plus an enhancement of one year for a prior prison term; eight months each (one-third the midterm), to be served consecutively, on each of the remaining four identity theft counts; and eight months each (one-third the midterm) on each of the five counts of petty theft with a prior, to be served concurrently. On appeal, defendant contends that except for the sentence imposed in count 1 the sentences imposed on the remaining nine convictions should have been stayed pursuant to section 654.

A jury convicted defendant Gregory Carl Kilgore of possession of heroin (count 1; Health & Saf. Code, 11350, subd. (a)), possession of cocaine (count 2; Health & Saf. Code, 11350, subd. (a)), possession of heroin for sale (count 3; Health & Saf. Code, 11351), transportation of heroin (count 5; Health & Saf. Code, 11352, subd. (a)), transportation of cocaine (count 6; Health & Saf. Code, 11352, subd. (a)), and misdemeanor possession of drug paraphernalia (count 7; Health & Saf. Code, 11364). The jury acquitted defendant of possession of cocaine for sale (count 4; Health & Saf. Code, 11351). In a bifurcated proceeding, defendant admitted a prior prison term (Pen. Code, 667.5, subd. (b)) and a prior drug conviction (Health & Saf. Code, 11370.2).

A jury found defendant Nickolas John Van Doorn guilty of spousal abuse (with a finding he inflicted great bodily injury) and battery with serious bodily injury. Defendant then admitted he had a prior prison term. He subsequently entered a plea of no contest in a separate case to the unauthorized use of a vehicle, in exchange for concurrent sentencing. The court sentenced him to prison, imposing the upper terms for spousal abuse and the injury enhancement, along with an additional year for the prior prison term. It stayed the battery conviction. Pursuant to the plea, it imposed a concurrent term for the auto offense. On appeal, defendant argues that the trial court engaged in a dual use of facts in imposing the upper term for the principal offense and imposing the prior prison term enhancement, and improperly relied on an inherent element in imposing the upper term for the injury enhancement. Court shall affirm.

Minor T. S. appeals from the juvenile courts dispositional order following a contested hearing that committed him to the Division of Juvenile Justice (Juvenile Justice Division). He contends the court violated his right to due process because its written order of commitment specifies a maximum period of confinement in excess of that imposed in the courts oral findings. He also argues that the court erred in finding that he would benefit from the Juvenile Justice Division commitment. Court shall affirm with directions to modify the commitment order.

In the course of a fight in the parking lot of Kentucky Fried Chicken, the minor, H. S., pulled out a knife and swung it at the victim, J. M. J.M.s head was cut open and he was left with several scars. The minor was charged with assault with a deadly weapon (a knife) and criminal threats. It was further alleged the minor had personally used a deadly weapon and personally inflicted great bodily injury.
On appeal, the minor contends the personal use sentencing enhancement should be stricken and the maximum period of confinement should be corrected to four years eight months. The People do not address the first point, but properly concede the latter. Court agree with the minor on both points.

Genomic Health, Inc. (Genomic Health) filed a petition for writ of mandate against the Department of Health Care Services (the Department), seeking a declaration that the Department was required to pay Genomic Health for services rendered to Medi-Cal patients before June 1, 2007. The trial court denied the petition because Genomic Health had failed to exhaust administrative remedies. On appeal, Genomic Health contends that the trial court erred because it would have been futile to exhaust administrative remedies. Court conclude that Genomic Healths contention is without merit because the record does not support its assertion that exhaustion of administrative remedies would have been futile.