CA Unpub Decisions

Defendant Gabriel Jose Lopez, Jr., found guilty of violating drug-related and non-drug-related conditions of his probation for drug rehabilitation under Proposition 36 (Pen. Code, 1210 et seq.,[1]added by Initiative Measure Prop 36, eff. July 1, 2001, approved Nov. 7, 2000 (Prop 36)), appeals following revocation of his Prop 36 probation and imposition of a prison sentence for the underlying narcotics conviction. Defendant contends the trial court sentenced him to prison based in part on the courts unawareness of a 2006 legislative amendment (Sen. Bill 1137 (SB 1137)) to section 1210.1, allowing the court to use short-term jail incarceration as a tool to enhance compliance with a Prop 36 rehabilitation program. ( 1210.1, subd. (f)(2);[2]Stats. 2006, ch. 63, 7, effective July 12, 2006.)
We accordingly affirm defendants conviction but vacate his sentence and remand for further proceedings. Court do not suggest that the trial court impose any particular sentence on remand, nor does anything in this opinion preclude any party from contending in the trial court that the 2006 amended version of section 1210.1 is unconstitutional an issue that we do not reach.

A modification decision.

Defendant Matthew John Nemanic believed Richard Rowden to be a vampire who was draining his life force through astral projection and actual physical manifestation. To ensure that Rowden could no longer prey on defendant and others, defendant brought a loaded handgun to Rowdens home with the intention of killing him. After entering the home uninvited and pointing the gun at one of the residents, defendant was pushed out of the home before anyone was injured or killed.
As will be explained more fully below, we will modify the judgment to award defendant 417 days credit for time served and affirm the judgment as modified.

Defendant William Kenneth Echols received felony probation pursuant to a plea bargain, but the offense he pled to was not a felony. On appeal, the parties agree that the matter must be remanded to the trial court with directions to reduce defendants conviction to a misdemeanor. Court shall do so.

Defendant Arturo Diaz Patino was sentenced to two years in state prison when the trial court determined he had violated the probation imposed following his conviction for first degree residential burglary. He appeals, contending there was insufficient evidence that he violated his probation. Court disagree and shall affirm the judgment.

In what is the third appellate proceeding in this action arising out of the alleged breach of an agreement to make certain improvements on a private road, Gisele Pender appeals a judgment entered in favor of defendants Johannes Karl Notthoff, Norbert Waldenmayer, Harold and Margie Andersen, Harold Andersen, Jr., Georgeanne Andersen, Alan Shada and San Clemente Nurseries (collectively, the Developers) after the court denied her request to have the agreement specifically enforced against them. Pender contends that the trial court (1) erred in concluding that she was not entitled to have a jury empanelled at the trial of her breach of contract claim seeking specific performance to decide an issue of the parties' intent underlying certain contractual language; (2) violated the law of the case as established by the prior decisions of this court; (3) erred in finding that she had not met her burden of establishing her interpretation of the agreement because that finding was not supported by substantial evidence; and (4) erred in ruling on her additional claims for breach of contract and breach of the implied covenant of good faith and fair dealing. The Developers respond that Pender's arguments are without merit and that we should affirm the judgment and remand the matter to permit them to seek recovery of their attorney fees incurred on this appeal. Court find Pender's arguments unavailing and affirm the judgment.

Allen Bernard Mann entered a negotiated guilty plea to one count of possession of marijuana for sale (Health & Saf. Code, 11359) and admitted a prior serious/violent felony or strike conviction. (Pen. Code, 667, subds. (b)-(i)). Under the plea bargain, which stipulated a 32-month prison term, the prosecution agreed to dismiss the remaining offenses and allegations contained in the information. The trial court sentenced Mann to 32 months in prison. The judgment is affirmed.

Allen Weiss appeals, in propria persona, from an order granting the motion of Michael A. Corfield and Borchard & Baur, APC (together Defendants) to change venue and a judgment dismissing this action based on his failure to pay the costs to transfer the action. He contends the trial court erred in changing venue and dismissing the matter.
We have no jurisdiction over this appeal as to the order changing venue and thus dismiss the appeal as to this order. Insofar as Weiss appeals from the judgment dismissing this action, Court conclude that the appeal is without merit and affirm the judgment.

Pacific Sunwear of California, Inc. (PacSun) appeals a trial court order granting attorney fees to Olaes Enterprises, Inc. (Olaes) in PacSun's lawsuit for breach of warranty. After granting Oleas's motion for summary judgment, the trial court awarded Olaes attorney fees and costs based on the parties' contractual agreement(s) that, under certain circumstances, "reasonable attorneys fees and costs shall be awarded to the party that successfully obtains or opposes . . . relief requested." Reversed.

A jury convicted defendant Kim Shute of the murder of his boyfriend, Stephan Mihalko, and also found true an allegation that he had sustained a prior strike conviction for residential burglary. (Pen. Code, 187, subd. (a), 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) In a bifurcated proceeding, the trial court denied defendants motion to dismiss the prior strike and imposed a prison sentence of 50 years to life. At the time Mihalko was killed, he and defendant had been involved in an on-again-off-again dating relationship for approximately 18 months. The two lived together in a rental house located on Laurel Circle in Palm Springs. Mihalko was employed as a flight attendant and defendant worked as a server in a restaurant. The judgment is affirmed.

In a bifurcated proceeding, a jury found defendant guilty of commercial burglary. (Pen. Code, 459.)[1] The jury thereafter found true the allegation that defendant had sustained a prior strike conviction. ( 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) Defendant was sentenced to a total term of two years eight months in state prison with credit for time served. On appeal, defendant contends (1) the trial court erred in failing to instruct the jury on theft as a lesser included offense, and (2) the trial court prejudicially erred by giving a special jury instruction defining moral turpitude. Court find no prejudicial error and affirm the judgment.

A jury found defendant guilty of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1))[1](count 1) and possession of 28.5 grams or less of marijuana (Health & Saf. Code, 11357, subd. (b)), the lesser included offense of possession of marijuana for sale (Health & Saf. Code, 11359) as charged in count 2. The trial court found true that defendant had served a prior prison term. (Pen. Code, 667.5, subd. (b).) Defendant was sentenced to a total term of three years in state prison.
On appeal, defendant contends (1) the trial court erred in denying his suppression motion; (2) there was insufficient evidence to sustain his conviction for count 1; and (3) the matter must be remanded for resentencing, as the record is unclear whether the court intended to impose the one year prior prison term enhancement. We find that the abstract of judgment should be amended to reflect the courts oral pronouncement of judgment. Court reject defendants remaining contentions, however, and affirm the judgment.

A jury found defendant and appellant Jose Luis Herrera guilty of manufacturing a sharp instrument and shank while confined in a penal institution. (Pen. Code, 4502, subd. (b)). Defendant waived his right to a jury trial on the allegations that he had two prior strike convictions, and a trial court found the strike priors true. ( 667,[1]subd. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) The court sentenced defendant to a term of 25 years to life in state prison. Defendant filed a notice of appeal and simply checked the box stating that he was appealing from a judgment entered on October 2, 2007, in a Jury or Court Trial. The notice did not set forth any basis for the appeal. Court affirm.

Appellant K.L. (mother) appeals as an abuse of discretion the juvenile courts order granting her mother and her mothers fianc (the maternal grandparents) de facto parent status in relationship to K.L.s two children, K.A. and J.A. Court affirm.