CA Unpub Decisions

A jury found defendant Timothy Hudson Roberts guilty as charged of first degree robbery and carjacking (Pen. Code, 211, 212.5, subd. (a), 215), and further found that he personally used a deadly weapon during the commission of each offense (Pen. Code 1192.7, subd. (c)(23)). After the trial court sentenced him to state prison for an aggregate term of six years, defendant filed a timely notice of appeal. Defendant contends that the judgment must be reversed because of misconduct by the prosecutor and instructional error. Court conclude that no misconduct occurred. Court also conclude that a unanimity instruction could have been given by the trial court, but in the circumstances of this case its omission was not prejudicial. Court thus affirm.

Defendant Andrea Schiefer was convicted of assault with a deadly weapon and corporal injury to a spouse after participating in an attack on her husband. In an attempt to pull from defendants husband a backpack that he was holding, the husband was attacked by defendant and her codefendant. With the codefendant inflicting blows with a skateboard and defendant striking him, the husband was rendered unconscious.
Although defendant does not challenge the assault conviction, she contends that there was insufficient evidence to support her conviction for corporal injury to a spouse under Penal Code section 273.5, because (1) there is no evidence she personally violated section 273.5, and (2) she cannot be found guilty on a theory of aiding and abetting the primary assailant, who had no spousal relationship with her husband and therefore did not violate section 273.5. Because Court conclude that she could be convicted of aiding and abetting the primary assailant, Court affirm.

Cedric Demetrius Weatherspoon appeals from the judgment entered following his convictions by jury on count 1 conspiracy to sell cocaine (Pen. Code, 182, subd. (a)(1)), count 2 possession of cocaine base for sale (Health & Saf. Code, 11351.5) personally armed with a firearm (Pen. Code, 12022, subd. (c), count 3 possession of an assault weapon (Pen. Code, 12280, subd. (b)), count 4 possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)), and count 5 maintaining a place for selling controlled substances (Health & Saf. Code, 11366), and following his plea of no contest on count 9 to transporting, furnishing, or selling a controlled substance (Health & Saf. Code, 11379.5, subd. (a)) with an admission he suffered a prior felony conviction for which he served a separate prison term (Pen. Code, 667.5, subd. (b)), following the denial of a suppression motion (Pen. Code, 1538.5). The court sentenced Weatherspoon to prison for 12 years. As to Weatherspoon, Court reverse the judgment and remand the matter with directions.

Ricky White appeals from the judgment entered following his conviction by jury of selling or furnishing a controlled substance (Health & Saf. Code, 11352, subd. (a)), having suffered a prior felony conviction (Pen. Code, 667, subd. (a)) and two prior felony convictions for which he served separate prison terms (Pen. Code, 667.5, subd. (b)). The court sentenced appellant to prison for eight years. Court reverse the judgment and remand the matter with directions.

A modification decision.

At first blush this case appeared to present two problematic issues: (1) whether the trial court could, consistent with People v. Johnson (2006) 38 Cal.4th 717, deny a motion to suppress without a full evidentiary hearing; and (2) whether the trial court abused its discretion in summarily denying a motion to continue the suppression hearing brought by the defendant when the defendant indicated he was not prepared to go forward with the motion to suppress. These issues prompted no less than two rounds of briefing requests from this court. Court should add, though, that defendant Nesbitt should not feel too bad about the ineffective assistance of counsel he rendered to himself on his homemade suppression motion. The trial court was presented with the fact that at the time of the search which was the subject of that motion, Nesbitt was on probation subject to a search and seizure condition. That is, a warrant the sole substantive basis of his suppression motion was not needed. In other words, his own ineffective assistance to himself was harmless.

The trial court awarded Darleen Faragalli[1] $10,000 in attorney fees as a sanction under Family Code section 271 (all statutory citations are to the Family Code unless specified). Her former husband George argues the trial court made the order without notice to him, failed to hold a hearing on the matter, and improperly included fees that had already been paid or litigated. For the reasons expressed below, Court affirm.

Twice, the Board of Parole Hearings (the Board) found petitioner Harvey Davis suitable for parole and set parole dates. The Governor reversed each decision. Petitioner now petitions for a writ of habeas corpus directing respondent S.R. Moore, acting warden of Deuel Vocational Institution, to release him. Because no evidence supports the Governors decision to reverse the Boards parole release order, Court grant the petition and reinstate the order.

Appellant Felix Gonzalez did not approve of the relationship between his adult daughter Luz Beiza and Jason Neville. On the evening of December 2, 2006, he confronted Neville at Beizas home, and told him he did not want him coming around any more and wanted Neville to stay away from his kids. Gonzalez was tried and convicted of Penal Code section 245, subdivision (a)(1), (aggravated assault, a felony) and Penal Code section 166, subdivision (c)(1) (violation of a protective order, a misdemeanor). He was sentenced to two years for the assault, one year for a prior felony conviction, and imposition of sentence on the misdemeanor was suspended.

Ted E. Christensen and his wife, Eve L. Christensen, appeal from a judgment denying their petition to vacate or correct an arbitration award in favor of William W. Smith, Jr., and granting Smiths petition to confirm the award. The Christensens contend the arbitrator made errors of law that are reviewable on appeal and that the trial court erred by failing to vacate the award because the arbitrator was biased. As we explain below, these contentions are without merit and Court therefore affirm the judgment.

Cross complainant Paul A. Menke appeals from an order sustaining a demurrer to his first amended cross complaint without leave to amend. This is not an appealable judgment because it violates the one final judgment rule but Court will treat the appeal as a petition for a writ of mandate. Court conclude the trial court correctly ruled on the demurrer and deny the petition.

John Fox and Sean Mills (collectively, Fox) appeal from an order that denied their motion to vacate a judgment dismissing this action against Dadson Washer Service, Inc. (Dadson). The action was dismissed for failure to respond to discovery. Foxs main argument is that the judgment must be set aside because his attorney never received the motion to dismiss. Court disagree and affirm.

Petitioner Mark Drenner submitted building plans for a two-story garage and second unit on his parcel of residential property located in Old Towne Historic District (historic district) in the City of Orange (City). Although the Citys design review committee and planning commission approved the plans the city council upheld an appeal by real party in interest Old Towne Preservation Association (Association) and denied the project. In exercising discretionary review of the project and holding a public hearing, the city council relied in part on the Citys requirement that structures exceeding a height of over one and one-half stories require issuance of a conditional use permit. Drenner filed a petition for writ of mandate to require the City to approve the project. The petition alleged the project fell within Government Code section 65852.2, governing the addition of second units on residential property, which prohibits discretionary review or public hearing of the project. The trial court denied the writ petition, finding Drenner failed to timely serve the City with the petition, and that the project was subject to discretionary review because it involved more than simply a second unit.
Court conclude Drenner failed to properly serve the City with the writ petition within 90 days of the Citys denial as required by Government Code section 65009, subdivision (c)(1)(E). Although section 1107 authorizes service of an application for alternative writ by mail under the procedures of section 1010 et seq., this does not satisfy Government Code section 65009, which requires personal service in accordance with section 412.10 et seq. Because Drenner failed to properly serve the City with the writ petition, Court conclude the trial court did not err in denying his writ petition.

We appointed counsel to represent defendant Jason Allan Markley on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendants behalf. (People v. Wende (1979) 25 Cal.3d 436.) Pursuant to Anders v. California (1967) 386 U.S. 738, counsel discussed possible claims appearing in the record. A jury convicted defendant of felony violation of section 496, subdivision (a) of the Penal Code, receiving stolen property. (All statutory references are to the Penal Code.) The court sentenced him to two years in state prison for the conviction under section 496, subdivision (a) and two more years under section 667.5, subdivision (b) for two of his four prior convictions, for a total of four years. Court affirm.