CA Unpub Decisions

On October 28, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging that appellant, J.S., feloniously received stolen property (Pen. Code, 496, subd. (a), count one),[1]provided false information to a peace officer, a misdemeanor ( 148.9, subd. (a), count two), and misdemeanor escape from a juvenile facility (Welf. & Inst. Code, 871, subd. (a), count three). On November 4, 2008, appellant waived his rights and admitted count one as a felony. The remaining allegations were dismissed. On November 19, 2008, the juvenile court noted the aggregate term of confinement for appellants current offense and prior adjudications was four years eight months with 221 days of custody credit. Appellant was first detained between September 2, 2007, and September 3, 2007, entitling him to two days of custody credits. Appellant was detained another two days between January 31, 2009, and February 1, 2008. The probation report notes only one day. Appellant was detained again from March 10, 2008, until September 23, 2008, a total of 198 days. Appellant was detained from October 26, 2008, until November 19, 2008, for a total of 25 days. Appellant spent 227 days in custody. Court agree with the parties and will remand for the juvenile court to recalculate appellants custody credit.

William Day was employed by Home Depot as a loss prevention officer whose duties included apprehending shoplifters and conducting investigations into thefts at the store. On April 8, 2008, he was working at the Home Depot on Ming Avenue in Bakersfield. At approximately 2:40 p.m., he was in one of the store aisles when he saw a man, later identified as appellant, Fred Dewayne Arnold, carrying a box cutter in his hand. Arnold went to the hardware department and removed a paint gun enclosed in a blister pack from a box. Arnold then went to another aisle, cut the paint gun out of the blister pack with the box cutter, and put the gun down his pants. Officer Day and two other loss prevention officers, Santiago Martinez and Johnny Saucedo, followed Arnold outside the store and confronted him. Arnold turned around, swung the box cutter at the officers, and stated, This aint going to happen. Im going to cut you. Day backed up and called the police. Meanwhile, Arnold got into a Chevy Aveo that then sped out of the parking lot.
On September 10, 2008, the district attorney filed an information charging Arnold with robbery (count 1/Pen. Code, 212.5, subd. (c))[1]and petty theft with a prior ( 666). Each count also alleged a personal use of a weapon enhancement ( 12022, subd. (b)(1)) and a prior prison term enhancement ( 667.5, subd. (b)).
On November 19, 2008, the jury found Arnold guilty of robbery and petty theft with a prior and found the arming enhancement in each count true. In a separate proceeding the court found true the prior prison term enhancement in each count.

On July 3, 2008, Fresno police officers approached appellant, Reuben Anthony Gill, Jr., in a liquor store parking lot. Gill looked down and moved his hand into his shorts through his zipper. After finding out that Gill was on parole, the officers were searching him when an off white rock of crack cocaine and a glass pipe fell from Gills shorts. Gill told the officers that he was holding about $30 worth of crack cocaine. The judgment is affirmed.

On December 18, 2008, the court readjudged appellant, S.S., a ward of the court after it sustained allegations charging him with possession of a dirk or dagger (Pen. Code, 12020, subd. (a)(4)). On appeal, appellant contends one of his conditions of probation is vague and overbroad. court will find merit to this contention and amend the condition at issue. In all other respects, Court will affirm.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26[1]hearing as to her son D.M. Court will deny the petition.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested six month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his son D.M. Court will deny the petition.

Appellant Jose Acosta Ramirez was convicted of assault with intent to commit a sexual offense during the commission of a first degree burglary, first degree residential burglary, and lewd act upon a child 14 or 15-years old where there is at least a 10-year age difference between the defendant and the victim. Ramirez contends his burglary conviction must be reversed because it is a lesser included offense of assault with intent to commit a sexual offense during the commission of a burglary. Ramirez also contends the concurrent sentence he received for committing a lewd act on a minor should have been stayed pursuant to Penal Code section 654 because during the assault and lewd act he harbored only a single intent, and the assault and lewd act constituted one indivisible act.

Defendant Charles Arthur Plunkett was convicted of second degree murder. On appeal, defendant contends he was prejudiced by a court order permitting him to be shackled while in the presence of the jury. However, there was no such order, and the possibility that one juror might have seen defendant in shackles while in the hallway outside the courtroom, or while being transported into the courtroom, did not prejudice him. Defendant has failed to establish his trial counsel was ineffective for failing to request instructions or an admonition to the jury.
Defendant also argues the trial court erred by instructing the jury with CALCRIM No. 362, concerning defendants false and misleading statements regarding the crime. We conclude there was sufficient evidence to support giving the instruction, and the instruction did not violate defendants due process rights. Court therefore affirm.

Plaintiff appeals from the denial of her motion for attorney fees following the settlement of a defective automobile case filed under several consumer protection statutes. Because the trial court denied plaintiffs motion entirely, Court must presume the trial court found that plaintiff was not entitled to attorney fees as a matter of law. Court disagree with the trial court, reverse and remand for further proceedings.

The only issue raised on appeal involves sentencing. The Attorney General concedes the superior court erred and Court agree.

William Joseph Bowen filed a petition for writ of habeas corpus on his own behalf complaining that the superior court should not have refused to file his notice of appeal. But the notice of appeal was clearly untimely. Judgment was entered December 23, 2008 and thus the last day to file a notice of appeal was February 21, 2009. The notice of appeal submitted by petitioner to the superior court, however, shows a signature date of April 16, 2009, and that it was received, unfiled, by the superior court on April 27, 2009.

Defendant Milan Paul Pakes appeals from a judgment of conviction entered after a jury found him guilty of child endangerment (Pen. Code, 273a, subd. (a)), evading a police officer (Veh. Code, 2800.2), and hit and run causing property damage (Veh. Code, 20002, subd. (a)). In a bifurcated proceeding, defendant admitted the allegations that he had two prior strike convictions (Pen. Code, 667, subds. (b) - (i), 1170.12) and served a prior prison term (Pen. Code, 667.5, subd. (b)). The trial court sentenced defendant to an indeterminate term of 25 years to life to run consecutive to a determinate term of four years. On appeal, defendant raises several issues relating to the sufficiency of the evidence, jury instructions, and sentencing. We conclude that the four-year term imposed on the Vehicle Code section 2800.2 conviction should have been stayed pursuant to Penal Code section 654. Accordingly, Court reverse the judgment and remand for resentencing.

Plaintiffs Organic Pastures Dairy Company, LLC and Claravale Farm, Inc. (hereafter, plaintiffs) are the only California producers of raw milk sold to consumers. Plaintiffs filed an action against defendants State of California and A.G. Kawamura, Secretary of the California Department of Food and Agriculture (collectively hereafter, the State), in which they challenged the constitutionality of Food and Agriculture Code section 35781, subdivision (a)(1),[1] which was amended effective January 1, 2008, to require that raw milk sold to consumers contain no more than 10 coliform bacteria per milliliter of milk.[2] Coliform bacteria are a group of bacteria that includes species that come from the intestinal tract of animals. In this appeal, plaintiffs challenged the trial courts order denying plaintiffs motion for a preliminary injunction staying enforcement of the 10-coliform bacteria standard imposed by section 35781, subdivision (a)(1) prior to trial. The trial court denied injunctive relief on the ground that plaintiffs were not likely prevail at trial in their constitutional challenge because there is a rational basis for the 10-coliform bacteria standard: the Legislatures intent to make raw milk products safer for consumers by monitoring the adequacy of dairy sanitation. For the reasons stated below, we will grant plaintiffs motion to dismiss the appeal, which they filed shortly before the date the case was calendared for oral argument.

Claimant Michael Adams appeals from an order of final distribution in a probate proceeding regarding the estate of Carol Lee Unger. He filed papers in the case stating that he was 42 years old and the natural son of Unger but had been adopted at age six by Ungers mother and the mothers husband. The trial court distributed the estate to Ungers sons, petitioners Marc Raymond Unger and Anthony Edward Unger. On appeal, Adams presents a deficient, an unfocussed, and a barely coherent discourse that essentially challenges us to find error. Court therefore affirm the order.