CA Unpub Decisions

A modification decision.

Paul Adams appeals the judgment entered following his conviction by jury of first degree burglary. (Pen. Code, 459.)[1] The jury found Adams had a prior serious felony conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1) and that he had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Adams to a term of 17 years in state prison.
Adams contends defense counsel rendered ineffective assistance, the trial court improperly stayed a prior prison term enhancement and a $20 DNA assessment must be set aside. Court agree the $20 DNA assessment must be stricken but otherwise affirm the judgment.

Plaintiff and appellant, People of the State of California, appeal the trial courts grant of habeas corpus relief to defendant and respondent, Thomas Joel Kravitz. The trial court ruled it would violate equal protection to impose mandatory sex offender registration on Kravitz, who had been convicted of violating Penal Code section 288, subdivision (c)[1](lewd or lascivious act by defendant 10 years older than 14- or 15 year old victim). The judgment is reversed.

Rafael Perez appeals the judgment entered following his conviction by jury of sale of a controlled substance. (Health & Saf. Code, 11352, subd. (a).) Perez admitted a prior serious felony conviction within the meaning of the Three Strikes law and admitted two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). The trial court sentenced Perez to a term of 11 years in state prison. Court reject Perezs claim the trial court erroneously instructed the jury on the use of prior statements as evidence and affirm the judgment.

Pha Nhat Chea appeals the judgment entered following his conviction of two counts of attempted murder in which he personally discharged a firearm, two counts of assault with a firearm in which he personally used a firearm, one count of shooting at an occupied vehicle and one count of unlawful possession of a firearm. (Pen. Code, 664/187, 12022.53, subd. (c), 245, subd. (a)(2), 12022.5, subd. (a), 246, 12022, subd. (a)(1).)[1] Chea admitted a prior conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subs. (a)-(d)) and section 667, subdivision (a)(1). Chea also admitted two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Chea to a term of 47 years and 8 months in state prison.
Chea contends the trial court erroneously excluded evidence of a codefendants declarations against penal interest and the evidence did not demonstrate express malice, which is required for a conviction of attempted murder. Court reject these contentions and affirm the judgment but order the abstract of judgment corrected to reflect imposition of the term imposed by the trial court.

David Simon appeals an order denying relief from a judgment entered following dismissal of a complaint for failure to effect service. Court affirm.

B.L. appeals an order directing that he remain a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 and ordering B.L. to participate in Camp Community Placement based upon the finding he possessed cocaine base for sale in violation of Health and Safety Code section 11351.5. Court reject B.L.s contention the evidence does not support the juvenile courts finding and affirm the order.

This case involves a complicated procedural history. Plaintiff, Bruce Hunt, is a Sacramento County Deputy Sheriff who was terminated from his employment in 2003, but reinstated in 2004 after successfully challenging his termination in proceedings before the Civil Service Commission. After his termination, but before his reinstatement, Hunt filed an action against Sacramento County (County) and several Sheriffs Department employees contending their defamatory statements accusing him of theft, dishonesty, and unprofessional conduct resulted in his termination. After his reinstatement, Hunt filed amended and supplemental complaints alleging both the original defamation and new defamatory statements by an additional defendant who, Hunt claimed, was continuing to make false statements about him to the media. Hunt appeals from three operative pleadings: the third amended complaint, the supplemental complaint, and the first amended complaint and the judgments therein.

After the home of plaintiff Thomas J. Ivers was destroyed in a fire, his homeowners insurer, defendant Allstate Insurance Company (Allstate), denied coverage, asserting the fire had been deliberately set by plaintiff. Plaintiff initiated this action against Allstate and others and ultimately prevailed against Allstate on his claims for breach of contract and tortious breach of the covenant of good faith and fair dealing. However, the trial court denied plaintiffs request for attorney fees on his bad faith claim and declined to award prejudgment interest. Plaintiff appeals, challenging these rulings as well as a decision to exclude evidence of alleged misconduct by an investigator hired by Allstates attorneys. We conclude plaintiff failed to meet his burden of showing the amount of fees attributable to his contract recovery, so that the trial court properly denied attorney fees and prejudgment interest, and any error in excluding the indicated evidence was harmless. Court therefore affirm the judgment.

A jury convicted defendant Malcolm Augustus Johnson of two counts of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), and single counts of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, 11364). Defendant admitted an on-bail allegation and two prior convictions for transportation of methamphetamine for personal use. The court struck one of the prior conviction allegations, and imposed a term of eight years and eight months in state prison. On appeal, defendant contends: 1) the courts finding that he possessed and transported the methamphetamine for sale rather than personal use violated due process, the rule of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), and the prohibition against double jeopardy; 2) at the Proposition 36 hearing, the court improperly placed on defendant the burden of proving the methamphetamine was for personal use; 3) the court did not act as a neutral magistrate in denying Proposition 36 probation; 4) the denial of Proposition 36 probation was not supported by substantial evidence and relied on improper expert testimony; and 5) the court should have stayed sentence for possession of drug paraphernalia pursuant to Penal Code section 654 (undesignated section references are to the Penal Code). Court affirm.

A jury convicted defendant Melvin Michael Rasberry of first degree burglary. (Pen. Code, 459.) Defendant admitted a prior strike and prison term. The trial court sentenced him to five years in state prison, imposed various fines and fees, and awarded 427 days credit (285 custody and 142 conduct).

A jury convicted defendant Douglas Clayton Gilbert of driving under the influence and driving with a blood-alcohol level of .08 percent or greater. Defendant admitted four prior convictions for driving under the influence, and the court found that one of them constituted a strike. Defendant also admitted two counts of driving with a suspended license. Defendant was sentenced to state prison for an unstayed term of four years. On appeal, defendant contends (1) the trial court committed reversible error when it failed to instruct the jury on the defenses of necessity, duress, and entrapment; (2) the prosecutor violated defendants due process rights by questioning him regarding his postarrest silence; (3) the court abused its discretion by refusing to admit a statement made by defendants brother; (4) he received ineffective assistance of counsel; and (5) the court abused its discretion in denying his request to strike the prior strike conviction. Court shall affirm the judgment.

After his motion to suppress evidence (Pen. Code, 1538.5) was denied, defendant Ricky Anthony Villegas pleaded guilty to conspiring to sell cocaine and transportation of cocaine (Pen. Code, 182, subd. (a)(1); Health & Saf. Code, 11352), and admitted a sentencing enhancement for firearm possession (Pen. Code, 12022, subd. (a)(1)). He was sentenced to six years in state prison, which was suspended, provided he complete four years of formal probation and a one-year jail term. Defendant appeals, challenging the trial courts denial of his motion to suppress evidence seized during a vehicle stop. For reasons that follow, Court affirm the judgment.

A jury convicted defendant Larry Gale Johnson of two counts of second degree robbery. (Pen. Code, 211; undesignated section references are to the Penal Code.) In a bifurcated proceeding, the trial court found that defendant had a prior strike ( 667, subds. (b)-(i), 1170.12) and a prior felony conviction ( 667, subd. (a)).
Defendant contends the trial court committed prejudicial instructional error. Court affirm.