CA Unpub Decisions

A jury convicted defendant Ricky Ramirez of eight counts arising out of his forcible sexual attack on an acquaintance. On appeal, he raises four claims of error: 1) No substantial evidence supports more than two counts of digital penetration; 2) propensity evidence should not have been admitted; 3) his sentence was imposed in violation of the Sixth Amendment; and 4) the trial court made an improper dual use of facts in sentencing. Court agree that two counts must be reversed for lack of evidence. Court shall modify the sentence and otherwise affirm the judgment.

Defendant Andrew Justin Melton drove home from a fishing trip drunk and crashed into a telephone pole. His passenger and friend sustained injuries which left him in a coma for about one month. Defendant pled no contest to driving with a blood-alcohol content of .08 percent or more and causing bodily injury to his friend and was granted five years probation. Over the course of the next four years, defendant violated probation multiple times. After the final violation, probation was revoked and defendant was sentenced to the upper term of three years in prison. Defendant now appeals this sentence. He contends the trial court abused its discretion in revoking his probation and imposing the upper term sentence. He also contends his trial counsel was ineffective for failing to argue he should not be sentenced to the upper term and failing to ensure defendant was awarded the correct presentence credits. Court shall affirm.

A jury found defendant Mark Anthony Verceles guilty of attempted voluntary manslaughter, disobeying a domestic relations order, child endangerment, attempted criminal threats, and two counts of assault with a deadly weapon. The court sentenced defendant to a six-year term in state prison. On appeal, defendant contends he was denied due process by the courts erroneous answers to questions from the jury regarding proof of intent. Finding the error harmless, Court shall affirm.

Defendant Brian George Biehl contends the trial court lost jurisdiction to impose sentence on one of two cases because the probation officer failed to properly notify the trial court that he was in state prison as required by Penal Code section 1203.2a. Court disagree and shall affirm.

We appointed counsel to represent defendant Shawn Curtis Eddy on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and Court have received no communication from defendant. Court affirm the judgment.

Defendant Anthony Martelis Partee was found guilty by a jury of grossly negligent discharge of a firearm. (Pen. Code, 246.3.) On April 9, 2008, the trial court sentenced defendant to the upper term of three years in state prison. The trial court provided the following reasons for imposing the selected term on the record: the crime involved great violence and threat of harm; the crime involved professionalism, planning and sophistication; defendant had a lengthy juvenile history of increasing seriousness; and defendant exhibited a poor performance on probation.
The judgment is affirmed.

After convoluted proceedings we omit, defendant pled no contest to driving under the influence and admitted two prior prison terms, and the trial court imposed a stipulated five year prison sentence. (Veh. Code, 23152, subd. (a); Pen. Code, 667.5, subd. (b).) Defendant timely appealed. The appeal is dismissed as moot.

Defendant Andrew Jackson Armstead pled no contest to failing to register as a sex offender (Pen. Code, 290, 290.018, subd. (b)), admitted having a prior serious felony conviction, and agreed to a sentence of 32 months in state prison (the low term doubled pursuant to the three strikes law).
The judgment is affirmed.

After defendant Nathan Joseph Nickaloff waived his right to a jury trial on the Peoples petition to extend his commitment as a mentally disordered offender (MDO) (Pen. Code, 2960, et seq.), the trial court sustained the petition and committed defendant to the California Department of Mental Health for another year, effective March 10, 2008. Finding that defendants contentions lack merit, Court affirm the judgment.

A jury found defendant Raymond Evans McConnell is a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code[1] section 6600 et seq., and the trial court committed him to an indeterminate term of treatment. On appeal, McConnell contends the trial court should have excused two jurors for cause. We find no abuse of discretion in the trial court's unwillingness to excuse the jurors. We also find the trial court acted within its discretion in excluding testimony from appellant with respect to his fear of receiving a life sentence in the event he reoffended. Finally, Court reject appellant's contention any failure on the part of the Department of Mental Health (the department) to subject an evaluation handbook it employed to the procedures set out in the Administrative Procedure Act (APA), Government Code section 11340 et seq. requires his release from custody.

In this product defect action brought by Ericsson, Inc. (Ericsson) against defendant and cross-complainant Vicor Corporation (Vicor) and defendant and cross-defendant Exar Corporation (Exar), the court granted a motion jointly brought by Rohm Co. Ltd. and Rohm Device, U.S.A., L.L.C. (Rohm Device) (together Rohm) and Exar, in which Exar and Rohm (together sometimes referred to as respondents) sought a determination that their "sliding scale" settlement with Ericsson, valued at $3 million, was in good faith within the meaning of Code of Civil Procedure[1]section 877.6. Based upon this "good faith" determination, the court thereafter dismissed Vicor's cross-complaint for indemnity against Rohm and Exar and entered judgment in their favor. Vicor appeals, contending (1) the judgment must be reversed because there was no competent evidence to support the court's determination that the potential liability on Ericsson's claims was no more than $30 million to $60 million, as opposed to the $100 million to $1 billion in damages that Ericsson asserted; (2) the judgment must be reversed because respondents, as the settling parties, provided insufficient evidence of the value of the settlement; and (3) the court's determination of respondents' proportionate liability is unsupported by the evidence and is contrary to law. Court conclude the court did not abuse its discretion by granting respondents' good faith settlement motion. Accordingly, Court affirm the judgment.

Pro per plaintiff/appellant Tony Tatum appeals from a judgment of dismissal with prejudice entered against him after a demurrer to his third amended complaint, alleging eight causes of action arising out of his employment with defendant/respondent Ace Parking, Inc. (Ace), was sustained without leave to amend. Although we appreciate the frustrations that a pro per litigant may experience in ascertaining and setting out the specific facts that need to be pleaded to state good causes of action, contrary to Tatum's implied request for special consideration, "[i]n propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules. [Citations.]" (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) Consequently, having reviewed the three causes of action in light of the applicable law set out below, we conclude the trial court did not abuse its discretion in sustaining without leave Ace's demurrer to Tatum's third amended complaint and in then dismissing this case in its entirety. Court, therefore, affirm.

Malachi Smith pleaded guilty to unlawfully driving and taking a vehicle without the consent of the owner (Veh. Code, 10851, subd. (a)), and receiving a stolen vehicle (Pen. Code,[1] 496, subd. (d)). Smith also admitted he had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)), and had served three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court stipulated that Smith would receive a 32-month prison term. The court, which had earlier denied a motion to dismiss for violation of Smith's right to a speedy trial, agreed to award him custody credits for one of the two periods in which he was incarcerated during the 14 months between his offenses and his arrest in addition to the custody credits earned after his arrest.
The court denied Smith's request for a certificate of probable cause.

Kevin K. appeals a judgment declaring his minor children Michelle K. and Kevin K., Jr., (together, the minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing them from parental custody. (Statutory references are to the Welfare and Institutions Code.) Kevin contends: (1) he was denied due process when he did not receive notice of the jurisdiction and disposition hearing; (2) the court erred by denying his request for a continuance; (3) the evidence was insufficient to support the court's jurisdictional findings and dispositional order; and (4) the court should have considered disposition alternatives less drastic than removal. Court affirm the judgment.