CA Unpub Decisions

D.T. appeals from a judgment entered pursuant to Welfare and Institutions Code section 602 and the subsequent dispositional order. The Welfare and Institutions Code section 602 petition alleged that appellant had committed a lewd act on a child, A.W., in violation of Penal Code section 288, subdivision (a). At the hearing, the court heard testimony from, inter alia, a security guard at the apartment complex where appellant and A.W. lived, and from A.W.'s mother, to the effect that appellant had taken two year old A.W. to a secluded place and touched her behind (in A.W.'s words) in a manner which made her cry. A.W. also said that appellant had his pants off, and A.W.'s mother observed that A.W.'s own pants were in disarray. The court found the allegation true, sustained the petition, and ordered appellant suitably placed in an open facility for eight years.

Defendant Michael Nguyen appeals following his conviction on six counts of being a felon in possession of a firearm. (Pen. Code, 12021, subd. (a)(1).) He claims the trial court erred by (1) refusing to allow him to examine a prosecution witnesss binder during cross-examination in violation of Evidence Code section 771, and (2) not staying the sentences on five of the six counts under Penal Code section 654. Court conclude the court committed no error and affirm the judgment.

Appellant, father of the minors[1], appeals in pro per following a proceeding at which a placement hearing was continued.[2] (Welf. & Inst. Code, 395 [undesignated statutory references are to the Welfare and Institutions Code]; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1251 [continuance of section 366.26 hearing is an appealable order].) Appellant, who was incarcerated in Texas at the time of the hearing, claims his due process rights were violated because he was not transported to California for hearings and purportedly did not receive notice of several hearings. He also maintains he received ineffective assistance of counsel, that certain reports were changed, and that the juvenile court abused its authority by order[ing] [him] out of [his] home and us[ing] entrapment to take custody of [his] children. Court shall affirm.

A jury found defendant Joshua Jay Lehman guilty of failing to register as a sex offender, and the trial court found he had a prior strike. The trial court also found, based on the trial evidence, that defendant had violated his probation in a prior case. The trial court sentenced defendant to prison for two years for failing to register as a sex offender, doubled to four years for the strike, and imposed a concurrent two-year term for the prior case in which probation was revoked. Defendant timely appealed. On appeal, defendant contends no substantial evidence supports the conviction, the trial court misinstructed the jury, and the statute under which he stands convicted is void for vagueness. Court shall affirm.

After a jury convicted defendant Johnny Chanthavong of first degree residential burglary and misdemeanor resisting arrest, the court found true an allegation he served a prior prison term for felony vehicle theft. Defendant appeals, claiming the trial court violated the prohibition against dual use of facts at sentencing. Court find no error and affirm the judgment.

A modification decision.

The trial court found defendant Andrew DeCarlos Herring, Jr., guilty of four counts of second degree burglary of a vehicle (Pen. Code, 459 (undesignated statutory references are to this code)--counts 1, 6, 10, & 14) and three counts of petty theft with a prior ( 484 & 666 -- counts 2, 7 & 15). Defendant admitted two strike priors ( 667, subds. (b)-(i)) and having served one prior prison term allegation ( 667.5, subd. (b)). The court denied defendants motion to strike one of the strike priors and sentenced him to an indeterminate term of 25 years to life on count one; he received the same sentence, stayed pursuant to section 654, on counts 2, 7 and 15; and he was sentenced to concurrent terms of 25 years to life on counts 6, 10 and 14 and one year for the prior prison term. On appeal, defendant contends the 25 years to life sentences for petty theft with priors and second degree burglary violate the ban against cruel and/or unusual punishment under the United States and California Constitutions. Defendant also contends he was denied his right to effective assistance of counsel. Court will affirm the judgment.

In May 2007, a jury convicted defendant Kevin Ford of two counts of robbery and one count of vehicle theft. (Pen. Code, 211; Veh. Code, 10851, subd. (a).) The trial court found he had 10 prior convictions qualifying both as serious felonies and strikes. (Pen. Code, 667, subds. (a), (b)-(i).) The trial court sentenced him to state prison for 85 years to life. Defendant timely appealed. On appeal, defendant contends the trial court mishandled the procedures to determine his competency to stand trial, and no substantial evidence supports the finding of competency. Over the course of this case, seven psychologists were appointed to evaluate defendants competency. Five thought he was competent, and four of these found he was malingering, that is, faking or exaggerating his symptoms to avoid going to trial. One thought he was partly incompetent, and one thought he was fully incompetent, because of his low mental functioning. Defendant claims there was enough evidence of mental retardation, a type of developmental disability, to trigger a duty on the part of the trial court to appoint the director of the regional center for the developmentally disabled . . . to examine the defendant. (Pen. Code, 1369, subd. (a); see People v. Leonard (2007) 40 Cal.4th 1370, 1387-1391 (Leonard).)

In this family trust dispute between appellant in propria persona Randall J. Stevens and respondent Cheryl Kary, the probate court filed an order denying Stevenss demand for arbitration. Stevens promptly filed a motion for reconsideration pursuant to Code of Civil Procedure section 1008,[1] claiming the court had relied on an inapplicable statute. The court denied the motion for reconsideration, but clarified that its ruling was based on grounds other than the statute it had previously cited. Stevens has filed an appeal from the latter order. Respondent Kary filed a motion to dismiss the appeal, which we deferred pending calendaring of the case and assignment of the panel. For reasons we explain below, Court shall dismiss the appeal.

A jury convicted defendant James William Millner of second degree murder and attempted murder, and found he personally used and intentionally discharged a firearm, and caused great bodily injury during the attempted murder. (Pen. Code, 187, 664, 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subd. (d).) The trial court sentenced him to prison for 65 years to life, and he timely appealed. Defendant contends the trial court misinstructed on malice, the prosecutor committed misconduct in argument, and the trial court imposed an unauthorized sentence on count 2, attempted murder. Court accept the Peoples concession that the cause must be remanded for resentencing on count 2, and otherwise affirm.

A jury convicted defendant Charles Grier of two counts of first degree robbery (Pen. Code[1], 211, 212.5, subd. (b)) and found that he personally used a firearm during the commission of each offense ( 12022.53, subd. (b)). He was sentenced to state prison for an aggregate term of 18 years eight months. On appeal, defendant contends his request to discharge his retained counsel was erroneously denied. Court shall affirm the judgment.

Defendant Kenneth Lee Ames appeals from his convictions for corporal injury on a cohabitant, dissuading a witness by force, obstruction of a telephone line, misdemeanor possession of a firearm and misdemeanor attempted destroying evidence. On appeal, he contends he was denied his right to counsel, because defense counsel had a conflict of interest. Court shall affirm.

Following a court trial, the trial court found defendant Anton Handal liable for committing numerous acts of sexual battery against plaintiff, defendants daughter, while she was between the ages of 10 and 12 years old. The court entered judgment in favor of plaintiff and awarded her damages in excess of $2 million.
Defendant appeals from the judgment, claiming the trial court abused its discretion in two respects: (1) by denying defendants pretrial motion to withdraw admissions the court had earlier deemed admitted; and (2) by refusing to allow defendant to introduce evidence at trial disputing the deemed admissions. Court affirm the judgment.

Shawn McNary appeals from an indeterminate civil commitment to the State Department of Mental Health (the Department) after he was found to be a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, 6600 et seq.).[1] He contends the trial court prejudicially erred in allowing the Peoples two psychologists to testify in detail about hearsay statements contained in police reports regarding uncharged offenses as part of the basis for their expert opinions. He further contends that his indeterminate commitment violates due process, the ex post facto clause and equal protection. Finally, he claims his commitment must be reversed because the evaluations supporting the SVP petition were invalid because the Departments standardized assessment protocol governing them was an invalid underground regulation, having been adopted without compliance with the Administrative Procedures Act (APA; Gov. Code, 11340 et seq.). Court shall affirm the judgment.