CA Unpub Decisions

Appellant, Shawn Charles Bergdoll, was charged in the first amended information with possession of marijuana for sale (Health & Saf. Code, 11359, count one), cultivation of marijuana (Health & Saf. Code, 11358, count two), and possession of methamphetamine for sale (Health & Saf. Code, 11378, count three). The information further alleged an enhancement that appellant possessed a firearm (Pen. Code, 12022, subd. (a)).[1] After a jury trial, appellant was acquitted of counts one and three but found guilty of count two. The jury found the enhancement true. The trial court found this case was not appropriate for treatment pursuant to Proposition 36. The court suspended imposition of sentence and placed appellant on probation for three years upon various terms and conditions, including that he serve 180 days in jail. On appeal, appellant contends his cultivation was a nonviolent drug possession offense that qualified him for probation without incarceration under Proposition 36. Court disagree and affirm the judgment.

Recently in People v. Plumlee (Sep. 10, 2008, F054363) ___ Cal.App.4th ___ (Plumlee), we held that a switchblade knife as defined in Penal Code section 653k[1]can also be a dirk or dagger concealed on the person as defined in section 12020, even if it is concealed in its closed position. The superior court in this case granted defendant Joseph Gutierrezs motion to set aside a section 12020 charge on the ground that his knife, conceded to be a switchblade prohibited by section 653k, could not be a dirk or dagger as a matter of law. Because this was error, Court reverse the judgment and direct that the charge be reinstated.

On December 11, 2007, a petition was filed pursuant to Welfare and Institutions Code section 602 in Kern County alleging that appellant, Juan D., committed robbery, a felony (Pen. Code, 212.5, subd. (c), count one), received stolen property (Pen. Code, 496, subd. (a), count two), and violated the terms of his probation ( 777, subd. (a)(2), count three). As to count one, it was further alleged that Juan committed great bodily injury on the victim (Pen. Code, 12022.7, subd. (a)). Court Affirm.

In the petition for writ of habeas corpus filed on August 29, 2008, petitioner raises issues regarding his failure to timely file a notice of appeal from his resentencing for a felony conviction in Tulare County Superior Court after this court affirmed the judgment on appeal in case No. F050910, vacated the sentence, and remanded the matter for resentencing only.
Petitioner claims the trial court failed to inform him of his appellate rights at the resentencing hearing (i.e., his right to appeal or inform him to timely file a notice of appeal on his own behalf). Counsel apparently did not file a notice of appeal either. In light of the disposition above, the Request for Relief From Default Re: Notice of Appeal, also filed August 29, 2008, is denied as moot.

Petitioner Loren Petersen filed a petition for dissolution of a long-term marriage on July 30, 2008. On September 19, 2008, and before any hearing on the division of property or a child custody had been held, real party in interest Donna Petersen filed an ex parte order to show cause to exclude petitioner from the family home they had lived in for more than 10 years. (Fam. Code, 6321.) The petition advised Donna a peremptory writ might be issued in the first instance without issuance of an order to show cause. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Donna was afforded an opportunity to file a response to the allegations of the petition. Let a peremptory writ of mandate issue compelling the family law court to conduct a noticed hearing under Family Code section 6360 and to allow Loren to testify. Costs are awarded to petitioner. In the interest of justice, this opinion is final as to this court immediately upon its filing.

Defendant Ali Reza Shaisi[1] was convicted of 15 criminal offenses arising from two distinct instances of alleged shoplifting occurring some four months apart. On appeal he contends among other things that the trial court erred by consolidating the charges arising from the two incidents. He contends that the evidence of the earlier offenses was considerably weaker than that of the later offenses, and was unfairly bolstered by the latter, which would not have been admissible in a separate trial of the former. Court reject this and several other contentions, and affirm the judgment of conviction.

In this appeal, A.S. (mother) challenges an order at a 12-month review hearing that terminated efforts by the Santa Clara County Department of Family and Childrens Services (the agency) to reunify her with her sons F.S. and W.S. (collectively the children). She asserts that the juvenile court erred in concluding that the agency had offered her reasonable services. She argues that the agency should have helped her avoid being terminated from a second 52-week batterers intervention program and it should have assisted her in obtaining a medication evaluation. After reviewing the evidence relevant to mothers contentions, Court affirm the order for the reasons stated below.

D. R. appeals from an order of the juvenile court terminating her parental rights to J. E. under Welfare and Institutions Code section 366.26. She contends that there was not proper notice given under the Indian Child Welfare Act (ICWA). She further contends that the juvenile court abused its discretion in determining that the beneficial relationship exception to termination did not apply. Court remand for compliance with the ICWA.

Plaintiff Kurt Henke appeals from a judgment of dismissal entered after an order granting the special motions of defendants Otto Giuliani, Anthony Pearsall, Joanne Schivley, and Patricia Keener, to strike the complaint pursuant to Code of Civil Procedure section 425.16 (commonly known as the anti-SLAPP statute). Henke presents numerous arguments challenging the dismissal of his lawsuit, none of which is meritorious. Accordingly, Court affirm.

Marc L. Artieres was convicted of several charges relating to the illegal possession of drugs and firearms. He claims prejudicial error occurred during his trial: that the evidence did not support his conviction under Health and Safety Code section 11370.1, and the trial court improperly admitted certain hearsay evidence. He further claims there were several sentencing errors: an imposition of dual punishment for the same offense in violation of Penal Code section 654, an imposition of excessive court security fees, and a failure to allow him proper credit for time served prior to sentencing. As discussed below, the Attorney General conceded error in the imposition of court security fees and the calculation of actual time credit, and Court direct modification of the judgment accordingly. In all other respects, we find no prejudicial error and affirm the judgment.

Appellant Eldrick Emanuel Robison was tried before a jury and convicted of various theft and weapons charges after he orchestrated a plan to obtain a $270,000 loan on the home owned by his girlfriends son by concealing a debt owed to another lending institution under a first deed of trust. He does not challenge the weapons charges on appeal, but argues that the theft-related counts must be reversed because: (1) the trial court gave a jury instruction on mistake of fact that erroneously required the mistake to be reasonable to negate specific intent; (2) the court erred by refusing to admit into evidence a book on which appellant relied to formulate his plan, which he argued would show that his conduct was based on a genuine mistake of fact; (3) the court erroneously treated an investigating police detective with a real estate license as an expert in real estate transactions; (4) the court should not have allowed an attorney representing the victim title company to testify as an expert witness; (5) the court improperly admitted into evidence a handwritten note signed by appellant using his Muslim name; and (6) the prosecutor committed misconduct during closing argument. Court affirm.

Appellant Michael Patrick Hosier challenges his conviction for unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)) and receiving a motor vehicle as stolen property. (Pen. Code, 496d, subd. (a).) His sole contention on appeal is the trial court erred by instructing the jury with CALCRIM No. 372, the instruction addressing the issue of a defendants flight as consciousness of his or her guilt. Court affirm.

D.G., the mother of T.G., appeals from the order declaring T.G. a dependent of the juvenile court. She contends that there is insufficient evidence to sustain the allegations of the Welfare and Institutions Code section 300 petition, and that the court erred in finding that she waived reunification services. Court affirm.

Defendant and appellant Peter T. McCarthy (McCarthy) appeals from a judgment entered against him and in favor of plaintiffs and respondents Nicholas Jenkins, Dorothy Eugenia Calkins, John Delos Calkins, Fredericks Family Properties, Chris Jacobson, Debra Jacobson, Jason Jacobson, Irene Jacobson, Ralph Vetsch, and Barbara Vetsch. The trial courts construction of the underlying agreement was correct; the trial court properly interpreted and applied the Internal Revenue Code; and the judgment is supported by substantial evidence. Accordingly, Court affirm.