CA Unpub Decisions

Defendant Manse Sullivan appeals from an order committing him to an indeterminate term of commitment (Welf. & Inst. Code, 6604.1, subd. (a))[1] as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA) ( 6600 et seq.). On appeal, defendant contends that the trial court: (1) erred by granting the prosecutors request for a continuance, and then dismissing the first jury panel; (2) lacked jurisdiction to extend his commitment; and (3) erred in applying the SVPA retroactively to his case. Defendant also challenges the constitutionality of the SVPA, as amended in 2006, on due process, ex post facto, double jeopardy, cruel and/or unusual punishment, equal protection, First Amendment, and single subject grounds. Court reject these contentions and affirm the order.

Michael Shaw, his wife, Joanne Shaw, and their business, JN and MC Shaw Management Corp., doing business as JM Management Company[1] appeal from the trial courts adverse judgment after a bifurcated bench trial on liability issues relating to their claims against the County of Santa Cruz and two of its employees for inverse condemnation, negligence, trespass, and nuisance. The judgment also dismissed with prejudice the Shaws remaining claims that were never tried, some of which concerned asserted civil rights and constitutional violations. All the Shaws claims related to their undeveloped 74-acre parcel of real property located in La Selva Beach that they call Liberty Garden (the property) as an expression of their belief that individual liberty and ecological health are inseparable.
Court accordingly affirm the judgment.

A jury convicted defendant Raymond Goins of five counts of robbery in concert of an inhabited dwelling and one count of being an ex-felon in possession of a firearm. (Pen. Code, 213, subd. (a)(1)(A), 12021.1, subd. (a).)[1] The jury also found true allegations that defendant personally used a firearm during the robberies. The jury acquitted defendant of two counts of robbery. Defendant admitted allegations that he had previously suffered a serious felony conviction, a strike conviction, and had served three prior prison terms. ( 667, subd. (a), 667, subd. (b)-(i)/1170.12, 667.5, subd. (b).) The trial court sentenced defendant to a 28-year prison sentence.
On appeal, defendant contends that the trial court erred prejudicially by admitting evidence that, three days after the separate preliminary hearing of one of the other persons charged in the robberies, the victims house had been shot up. He also contends that the trial court improperly restricted cross-examination of a witness for bias, and gave unconstitutional reasonable doubt instructions. Court affirm.

Defendant was sentenced to prison (and concurrently to jail terms) for burglarizing a house, possessing illicit substances for sale, and driving without a license. On appeal, he contends that the trial court erred in failing to answer the jurys question whether he could be considered an accomplice and by giving the jury too much leeway to find him guilty of burglary. He also contends that his lawyer failed to represent him adequately during the trial.
Court affirm the judgment.

Luis Gerrardo Gonzlez, the defendant herein, already had a long record of felony convictions when he went on a crime spree in Palo Alto on June 26, 2006. On that day he burglarized a house, also robbing the resident at gunpoint, and stole two cars, carjacking the second one at gunpoint. Convicted of a number of crimes, he was sent to prison for the rest of his life.
On appeal, Gonzlez asserts that the trial court misinformed the jury about how to consider eyewitnesses identification of him and that there was no legal basis to find him guilty of illegally possessing ammunition.
Court agree with Gonzlezs second contention and will reverse the judgment on the ammunition charge. Otherwise Court affirm the judgment.

Defendant Oscar Mora was charged and convicted by a jury of one count of possession of a weapon by a prisoner. (Pen. Code, 4502, subd. (a).)[1] The jury also found true the four prior serious or violent felony convictions alleged. ( 1170.12.) Defendant was sentenced to 25 years to life in prison. Defendant has appealed.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. Court notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and Court have received no written argument from defendant.

A modification decision.

Defendant Jesse Perez Pena appeals from the sentence imposed following resentencing after appeal. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. The period has elapsed and we have received no written argument from him. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, Court will affirm.

Minor Antonio G. appeals from an order of the juvenile court committing him to the Division of Juvenile Justice. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues. We notified the minor of his right to submit written argument in his own behalf within 30 days. The period has elapsed and we have received no written argument from the minor. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, Court affirm.

Appellant Richard R. Lane appeals from the trial courts order denying his petition for writ of mandate. Lane is a retired public school teacher. He taught at various times in a number of different school and community college districts as well as at San Jose State University. At retirement in 2002, he was a concurrent member of the California State Teachers Retirement System (CalSTRS), the agency responsible for managing contributions by employees and member school districts to the State Teachers Retirement Fund, and the California Public Employees Retirement System (CalPERS), having contributed to and becoming a member of both systems over the course of his working life. Through his petition in the trial court, he sought to compel CalSTRS to recalculate his monthly pension from that system based on his highest annual compensation earned over a single year rather than on the average of his three highest-paying years. He further challenged CalSTRSs calculation of his sick-leave service credit, which also factored into the formula used to calculate his monthly pension benefit. Lane reprises these challenges on appeal and further claims that he was deprived of due process by the manner in which CalSTRS adjudicated his claim. Finding no error, Court affirm the order.

A jury convicted defendant of driving under the influence of alcohol (count 1) (DUI) and driving with a blood-alcohol level of .08 percent (count 2), both felonies. (Veh. Code, 23152, subd. (a); 23152. subd. (b); 23550.5, subd. (a).) In a bifurcated proceeding, the court found true that defendant had suffered prior DUI convictions within the meaning of Vehicle Code section 23550.5, subdivision (a). The court sentenced defendant to concurrent two-year prison terms. The court imposed an $800 restitution fund fine, and suspended a parole revocation fine in the same amount, on each count. On appeal, defendant contends that the trial court erred in imposing concurrent terms. He also contends the court erred in imposing a restitution fund fine (and corresponding parole revocation fine) based on a statutory formula that calculates the fine with reference to a count that should have been stayed. The Attorney General concedes that the court erred in imposing concurrent terms, and takes no position on the restitution fine issue. Court modify the judgment to reflect that count 2 is stayed pursuant to Penal Code section 654, and reduce the fines to $400 each. As modified, the judgment will be affirmed, and the trial court will be directed to forward the corrected Abstract of Judgment to the Department of Corrections.

In this original proceeding, this court is asked to decide whether an order of the Santa Clara County Superior Court (respondent court) impermissibly limits the discretion of the Board of Parole Hearings (the Board) when conducting real party in interest David Portee's (Portee) parole consideration hearing. The Board contends that in ordering the Board at Portee's new hearing to "explain what instances of [Portee]'s commitment offense would not qualify for invocation of any unsuitability criteria which may be used to deny him parole," respondent court exceeded its jurisdiction. For reasons set forth below, Court agree with the Board. Accordingly, Court grant the petition for writ of mandate.

Timothy Paul Galvan (defendant) appeals from a judgment upon a jury verdict finding him guilty of first degree murder (Pen. Code,[1] 187), with the special circumstance that he was an active participant in a criminal street gang and that the murder was carried out to further the activities of the gang within the meaning of section 190.2, subdivision (a)(22). The jury also found true the allegations that defendant personally discharged a firearm in violation of section 12022.53, subdivisions (c) and (d) and that he personally used a firearm (former 12022.5, subd. (a)(1) [Stats. 1999, ch. 129, 5, No. 5 Wests Cal. Legis. Service], 12022.53, subd. (b)), and that he committed the offense for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The jury further found defendant guilty of two counts of attempted murder ( 187, 664) with firearm discharge and use allegations and criminal street gang enhancements. For the first degree murder with special circumstance finding, the trial court sentenced defendant to life imprisonment without the possibility of parole with a consecutive 25-years-to-life term for the enhancement based on defendants discharge of a firearm causing death. On the attempted murder offense (count 2), the trial court sentenced defendant to life with the possibility of parole with a 20-year consecutive term on the section 12022.53, subdivision (c) enhancement. On count 3 of attempted murder, the trial court sentenced defendant to the midterm of seven years plus a 20-year consecutive term on the section 12022.53, subdivision (c) enhancement and a 10-year consecutive term on the section 186.22, subdivision (b)(1) gang enhancement. Defendant contends that: (1) The trial court committed reversible Faretta error; (2) there was insufficient evidence to support the special circumstance allegation and criminal street gang enhancements; and (3) the trial court abused its discretion in denying his motion for an Evidence Code section 402 hearing. Court reverse the criminal street gang enhancements but otherwise affirm the judgment.

Hiram Rayfield Joseph (appellant) was convicted, following a jury trial, of possession of a firearm by a felon, possession of a short-barreled shotgun, and possession of ammunition by a person prohibited from possessing a firearm. On appeal, he contends (1) the prosecutor violated his constitutional right to compulsory process by intimidating and threatening a defense witness; (2) his admissions to two prior convictions were invalid; (3) appointment of new counsel at the sentencing hearing resulted in a constructive denial of counsel; and (4) the trial court erred when it failed to stay the sentence on the possession of a short barreled shotgun count. Because Court conclude appellants constitutional right to present witnesses in his defense was violated, Court reverse the judgment.