CA Unpub Decisions

Appellant, appearing in pro per, appeals from two orders of the San Mateo County Superior Court which, respectively: (1) denied his petition under Government Code section 946.6 to be relieved of the requirements of the Government Tort Claims Act regarding his attempt to sue the City of Menlo Park for personal injuries allegedly suffered while being arrested by that citys police, and (2) although granting reconsideration of its earlier order, again denied appellants section 946.6 motion.

Appellant Dwayne Giles was sentenced to prison for a term of 50 years to life after a jury convicted him of first degree murder and found true an allegation that he had personally discharged a firearm causing great bodily injury or death. (Pen.Code, 187, subd. (a), 189, 12022.53, subd. (d).)[1] He contends he was denied his Sixth Amendment right to confront witnesses because the trial court admitted hearsay evidence of statements by the murder victim regarding a prior act of domestic violence. He also argues that his conviction must be reduced to second degree murder because the evidence was insufficient to show that he acted with premeditation and deliberation. In our prior opinion Court affirmed the judgment.

Elvin Lee Hudspeth, Jr., pled guilty to first degree murder (Pen. Code, 187) and admitted a gun-use enhancement (Pen. Code, 12022.53, subd. (b)). On appeal, he argues that he received ineffective assistance of counsel. We dismiss the appeal because (1) Hudspeth did not obtain a certificate of probable cause (Pen. Code, 1237.5), and (2) Hudspeth forfeited his appellate rights when he pled guilty. Hudspeth also petitions for writ of habeas corpus, contending his trial counsel was ineffective in failing to investigate an alibi defense. He also argues that his plea was the result of threats to his wife and other family members. Neither argument has merit, and Court therefore deny his petition.

Randy Odean Daniels was committed to Atascadero State Hospital as a Sexually Violent Predator (SVP). Dissatisfied with his situation, he conceived a plan to have himself returned to prison by blatantly committing a new offense. His apparent notion was that he would do his time for the new offense and be released. He was wrong. He evidently neglected to factor in his criminal history, which included four qualifying prior serious or violent felonies within the meaning of the Three Strikes law. Daniels appeals the judgment entered after he pled no contest to possessing paraphernalia (marijuana cigarettes) in a custodial institution (Pen. Code,[1] 4573.6) and admitted suffering two prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In exchange for his plea, two other prior strike allegations were dismissed. The trial court sentenced him to a total state prison term of 25 years to life. He contends that his sentence violates the constitutional proscriptions against cruel and unusual punishment and double jeopardy. He further contends that the court abused its discretion in refusing to strike his prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Court affirm.

Plaintiff Melvin Bye (Melvin) and his wife, plaintiff Eugenia Bye (Eugenia),[1]checked into the Ritz-Carlton Hotel Pasadena, also known as the Ritz Carlton Huntington Hotel, (hotel) on April 22, 2004. Defendant Ritz Carlton Hotel, LLC (defendant) owned and operated the hotel. Shortly after checking in, Melvin began running the shower to get the water hot before he took a shower. There was no mat in the tub. After three to four minutes, he stepped into the tub with his right foot. As he attempted to put his left foot in the tub, he began slipping, grabbed the grab bar, but ultimately fell. Plaintiffs Melvin Bye and Eugenia Bye appeal from a summary judgment in favor of defendant Ritz Carlton Hotel, LLC. Court affirm.

Kalani A. Teo (appellant) appeals from the judgment entered following a jury trial resulting in his conviction of assault by means of force likely to produce great bodily injury and with a deadly weapon. (Pen. Code, 245, subd. (a)(1).) The trial court granted formal probation for three years on condition that appellant serve one year in the county jail. Appellant contends that: (1) there was Batson-Wheeler error (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)); (2) the trial court abused its discretion when it precluded appellant from recalling and further impeaching the victim, Davis; (3) the trial court improperly refused jury instructions on self-defense; and (4) the trial court abused its discretion when it charged the jury with CALJIC No. 2.28 as a sanction for belated discovery.
Court affirm the conviction.

Cesar Martinez (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of first degree murder with findings of the use and the discharge of a firearm in the commission of the offense. (Pen. Code, 187, subd. (a); 12022.53, subds. (b), (c) & (d).)[1] The trial court sentenced him to serve a term of life, enhanced by a term of 25 years to life for the discharge of the firearm.
Though the claim of prosecutorial misconduct lacks merit, Court modify the judgment to correct two sentencing errors and affirm the judgment, as modified.

In case number B205013, defendant Raymond Donald Clark, Jr. appeals from a judgment of conviction entered after a jury found him guilty of petty theft with a prior (Pen. Code, 666). The trial court found true the allegation defendant suffered a prior conviction of a serious or violent felony (id., 667, subds. (b)-(i), 1170.12) and sentenced to the upper term of three years, doubled to six years in state prison. The trial court exercised its discretion to strike the enhancements for prior convictions for which defendant served prison terms (id., 667.5, subd. (b), 1385). Defendant contends his conviction must be reversed because he was forced to appear in jail attire and due to instructional error. Court disagree and affirm.

Damen Lovell Smith appeals the judgment entered after a jury convicted him on two counts of identity theft (Pen. Code, 530.5, subd. (a)), second degree commercial burglary ( 459), forgery ( 470, subd. (a)), and receiving stolen property ( 496, subd. (a)). The trial court sentenced him to a total prison term of four years four months. He contends (1) the evidence is insufficient to support his convictions; (2) the court erred in instructing the jury with CALCRIM No. 362; and (3) the court erred in admitting certain expert testimony. Court affirm.

Appellant Alfred Bearman (Bearman) appeals from an order granting the safe-harbor petition of respondent Ellen Hess (Ellen) under Probate Code section 21320.[1] By her petition, Ellen sought a declaration that her proposed petition to determine the validity of a testamentary power of appointment and for an accounting did not violate the no contest clauses in The Frederic L. Hess, Jr. and Rita R. Hess Living Trust or the will of Frederic L. Hess, Jr. Court affirm.

Floyd L. Richardson appeals from the judgment entered following a jury trial in which he was convicted of possession of a firearm by a felon, count 1 (Pen. Code, 12021, subd. (a)(1)), and carrying a loaded firearm, count 2 (Pen. Code, 12031, subd. (a)(1)). He was found not guilty of possession of a firearm with identification numbers removed, count 3 (Pen. Code, 12094, subd. (a)). He was sentenced to prison for the upper term of three years on count 1 and sentence on count 2 was stayed pursuant to Penal Code section 654. The judgment is affirmed.

Jonathan Hernaldo Jimenez appeals from a judgment entered following a jury trial resulting in his conviction of first degree murder with a lying-in-wait special circumstance. He argues the trial court should have instructed the jury that, if the evidence showed he suffered from a hallucination, which contributed to the killing, that evidence was relevant to whether he killed with premeditation and deliberation. Jimenez also argues his sentence constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the federal Constitution. Court find no error and affirm the judgment.

Appellant V.D. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 following the finding he committed grand theft of personal property as alleged in a petition filed February 14, 2008. (Pen. Code, 487, subd. (a).) The offense was declared to be a misdemeanor. Appellant, who was 12 years old at the time of the offense, was placed home on probation and contends there was insufficient evidence to rebut the presumption he was incapable of committing theft. He additionally claims there was insufficient evidence to support the finding he committed theft. For reasons stated in the opinion, Court affirm the order of wardship.

I.F. (mother) appeals an order under Welfare and Institutions Code section 366.26, terminating her parental rights to her son, R.H., Jr. (R.H.).[1] Mother argues that the juvenile court erred in not applying the exception to termination codified in section 366.26, subdivision (c)(1)(B)(i) for parents who show that such termination would be detrimental to the child (Exception). Court find overwhelming evidence supports the implied finding that mother failed to establish the applicability of the Exception. Court affirm.