CA Unpub Decisions

Defendant Wisdom Akwafo Ofoe pled no contest and not guilty by reason of insanity to a charge of first degree murder with a lying-in-wait special circumstance for stabbing his wife to death. The jury found he was not legally insane at the time of the offense, and the court sentenced him to life in prison without the possibility of parole.
Court conclude defendants constitutional rights were not violated by the courts instruction on the burden of proof and defendant has failed to prove he received ineffective assistance of counsel. Accordingly, Court will affirm the judgment.

In this pro se judgment roll appeal, Elmer Jesus Arceo asks us to reverse a trial court order striking the affidavit by which Elmer[2]in 2005 fraudulently acquired a house in Woodland from the estate of a distant relative who died intestate in 1983 and had no immediate family. The trial court expressly found that a fraud [was] perpetrated on the court in that Elmers affidavit contained intentional misrepresentation and did not comply with relevant Probate Code requirements. The trial court did not err. Court shall affirm the order.

Appellants, the mother and father of minors J.M., H.M., Br.M., M.M., Je.M., Bk.M., Jn.M., and A.M. (the minors), appeal from 12-month review hearing orders of the juvenile court continuing the minors in their out-of-home placement and also continuing reunification services for appellants. (Welf. & Inst. Code, 366.21, subd. (f), 395.) Appellants make numerous contentions of alleged prejudicial error. Court affirm.

Defendant Carl D. Mitchell previously appealed his sentence of 384 years to life in prison. He returns to this court after the trial court failed to recalculate his sentence on remand. Finding error, we shall again remand this matter and direct the trial court to recalculate defendants sentence in light of our prior decision. Judgment is otherwise affirmed.

A.H. (mother) and K.H. (father), the parents of James H. and John H. (the minors), appeal from the juvenile courts orders adjudging the minors dependent children of the court and returning the minors to parental custody under the supervision of Human Services Agency (HSA). (Welf. & Inst. Code, 360, subd. (d), 395; further unspecified section references are to this code.) Mother and father, proceeding in propria persona, make multiple contentions of alleged prejudicial error. For the reasons that follow, Court affirm.

Defendant Herb Lee Gadbury pled guilty to seven counts of lewd acts on a child under the age of 14 and one count of lewd acts on a child age 14 or 15 when defendant is at least 10 years older than the child. The two victims were young female family members. Because defendant was not convicted of any of the enumerated statutory violations, the criminal laboratory analysis fee and its attendant penalty assessments are unauthorized and must be stricken.

S.S. (appellant), mother of the minor M.C., appeals the order of the San Joaquin County Superior Court accepting transfer of the dependency action from the Alameda County Superior Court. (Welf. & Inst. Code, 395;[1]In re Jon N. (1986) 179 Cal.App.3d 156, 159-160.)
On appeal, appellant contends there were several failures to comply with the notice provisions of the Indian Child Welfare Act. (25 U.S.C. 1901 et seq.; hereafter ICWA.) Court affirm the order and remand with instructions to comply with the notice provisions of ICWA.

Chad Elie was convicted of several offenses arising from shooting incidents occurring on September 6, 2003, and July 31, 2004. For the September 6 incident, he was convicted of unlawfully exhibiting a firearm. For the July 31 incident, he was convicted of attempted murder and assault with a firearm, with findings that he personally discharged a firearm causing great bodily injury and committed the offenses for the benefit of a gang. Finding no grounds for reversal of the judgment or a new trial, Court affirm the judgment and deny the writ petition.

In October 2006, the People filed an amended petition pursuant to the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,[1] 6600 et seq.) to commit Ricky Allen Hurtado to the Department of Mental Health (the Department) for an indeterminate term of involuntary treatment. In April 2007, after a trial, a jury found Hurtado to be a sexually violent predator (SVP). Thereafter, the trial court committed Hurtado to the Department for an indeterminate term. On appeal, Hurtado claims that his commitment is not authorized pursuant to the SVPA, as amended by Proposition 83.[3] Hurtado argues in the alternative that the court may commit him for only a two-year period under the SVPA as it existed at the time he was first committed as an SVP, and may not commit him for an indeterminate term, as is required under the amended version of the law. He further contends that the amended SVPA violates state and federal constitutional guarantees of equal protection and due process. Court reject Hurtado's claims and affirm the judgment.

In his motion to suppress, appellant argued police officers, without a warrant or other lawful justification and without probable cause, entered an apartment where he was staying and arrested him. Therefore, he contended, the seizure and search of his wallet, which contained methamphetamine, were illegal and the methamphetamine subject to exclusion. Appellant argued that even assuming the officers' entry into the apartment was lawful, there was no constitutional justification for the seizure and search of his wallet as incident to his arrest, and on that basis alone the methamphetamine was excludible.

Jimmie Martin brought a malpractice action against his former physician, Dr. Lorenzo Suarez and his medical group (collectively Dr. Suarez), alleging Dr. Suarez failed to diagnosis his colon cancer in 2003. After Martin presented his case, the court granted Dr. Suarez's nonsuit motion. The court ruled Martin failed to present sufficient evidence that Dr. Suarez's alleged negligence caused Martin's claimed injuries, and that Martin could not recover under a relaxed causation standard known as the "lost chance doctrine." Martin appealed, contending he presented sufficient expert testimony to show within a reasonable medical probability that Dr. Suarez's negligence caused his injuries, and that he was not relying on the lost chance doctrine. We agree with these arguments and conclude the court erred in granting the nonsuit. Court reverse the judgment.

In September 2005 a jury found Iosif A. Gelashvili guilty of kidnapping for ransom (Pen. Code, 209, subd. (a); count 1; all statutory references are to the Penal Code); attempted robbery ( 664, 211; count 2); burglary ( 459; count 3); and two counts of assault with a firearm ( 245, subd. (b); counts 4 & 5), all enhanced by personal firearm use ( 12022.5, subd. (a), 12022.53, subd. (b)). The court sentenced Gelashvili to prison for life plus 32 years four months: life with the possibility of parole on count 1 and 10 years for the section 12022.53, subdivision (b) enhancement; stayed terms ( 654) on counts 2 and 3; a nine-year upper term on count 4 and 10 years for the section 12022.5, subdivision (a) enhancement; and consecutive sentences of two years (one-third the middle term) on count 5 and one year four months (one-third the middle term) for the section 12022.5, subdivision (a) enhancement. Gelashvili appealed.
Court affirm.

Anthony Michael Thomas entered a negotiated guilty plea to assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)). Under the plea bargain, the assault count would be treated in the future as a non-strike offense, and the remainder of the charges would be dismissed. The plea bargain called for a grant of formal probation, conditioned on, among other things, Thomas serving 180 days in jail. Subsequently, Thomas unsuccessfully sought to withdraw his guilty plea. At sentencing, Thomas refused to accept the terms and conditions of probation, and was sentenced to the low term of two years in prison.

A jury convicted defendant of first degree murder. (Pen. Code, 187, subd. (a).)[1] The jury found true the special circumstances that the victim had been killed (1) to prevent her from testifying in a criminal proceeding ( 190.2, subd. (a)(10)), and (2) during a burglary ( 190.2, subd. (a)(17)(G)). Defendant was sentenced to prison for life without the possibility of parole. He appeals, claiming the jury was misinstructed as to one of the theories of first degree murder and the during-a-burglary special circumstance. The People agree. However, the parties part company on the consequences of these errors. Defendant contends that his conviction for first degree murder must be reversed, which necessarily vacates the special circumstance findings, and because substantial evidence supporting a proper during-a-burglary special circumstance was lacking at trial, he may not be retried for that circumstance. The People assert that we may affirm his conviction for first degree murder, despite the instructional error, and uphold the special circumstance that the victim was killed to prevent her from testifying in a criminal proceeding. Court reverse the first degree murder verdict and conclude that defendant may be retried for the during a burglary special circumstance.