CA Unpub Decisions

Petitioner Stephen Friday seeks a writ of mandate challenging respondent court's order denying his request for a certificate of probable cause. (Pen.Code, 1237.5; Cal. Rules of Court, rule 8.304(b).) The People concede, and we agree, that the trial court abused its discretion by denying the application for a certificate of probable cause. Court therefore issue a peremptory writ of mandate granting petitioner the requested relief.

In this action to quiet title to shares in a family corporation, the corporation moved for summary judgment on the ground the shares were void because they were issued without consideration. The trial court refused to consider the plaintiffs untimely opposition and granted the motion. We reverse because the corporations moving papers, even considered alone, fail to demonstrate that it is entitled to judgment as a matter of law.

The minor admitted misdemeanor allegations of brandishing a weapon (Pen. Code, 417, subd. (a)(1))[1]and making a criminal threat ( 422); she was declared a ward of the court and placed with her mother. The juvenile court determined the maximum period of confinement to be one year, four months. Two later probation violations did not alter the maximum term of confinement.
Respondent concedes that the trial court erred in calculating the minors maximum term of commitment, as indicated above. Court accept the concession and order that the minors maximum term of confinement be reduced from one year, four months to one year, two months. In all other respects, the judgment is affirmed.

Dwayne Pettway (Pettway) appeals from a judgment to the extent it awarded respondent expert witness fees and costs under Code of Civil Procedure section 998. In particular, Pettway contends the court erred in finding that respondents section 998 offer was made in good faith. Court find no merit to his arguments, but Court remand for the trial court to consider whether there was a mathematical error in the calculation of the amount of the judgment. The judgment will be affirmed in all other respects.

Byron Sinclair Cotton appeals from the judgment entered following a jury trial in which he was convicted of two counts of second degree commercial burglary (Pen. Code, 459), eight counts of forgery (Pen. Code, 470, subd. (d)) and one count of forgery/possession of a completed check (Pen. Code, 475, subd. (c).). Following a court trial, he was found to have suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) for robbery in 1982 in case number A562467 and to have served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Appellant was sentenced to prison for a total of nine years and eight months. He contends his sentence must be reduced by one year in that the trial court erred by twice imposing an enhancement for a single prior prison term. Respondent agrees.

Jonathan D. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 following the finding he possessed burglary tools as alleged in a petition filed August 21, 2007 (Pen. Code, 466) and his admission that he drove a vehicle without the owners permission as alleged in a petition filed October 23, 2007 (Veh. Code, 10851, subd. (a)). He was placed home on probation in the home of his mother. He contends there was insufficient evidence to support the finding he was in possession of burglars tools and that the court erred by setting a maximum term of confinement. For reasons stated in the opinion, Court affirm the order of wardship but strike the maximum term of confinement.

Defendant Clyde Sherwood Moss appeals from an initial order of commitment as a Sexually Violent Predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, 6600 et seq.) The petition for his commitment was filed just prior to his release from prison. While the petition was pending, two measures were passed, Senate Bill No. 1128 (2005-2006 Reg. Sess.) (SB 1128) and Proposition 83, an initiative measure. Both measures changed the term of commitment under the SVPA from a renewable two-year term to an indefinite term that terminates upon a judicial determination that the confined person no longer meets the definition of an SVP. In addition, Proposition 83 eliminated the confined persons right to an annual probable cause hearing on the question whether the person meets the definition of an SVP. (Former 6605, subd. (b); Stats. 1995, ch. 763, 3.) Defendants commitment hearing was held subsequent to the passage of Proposition 83 and he was found to be an SVP and committed to the Department of Mental Health (DMH) for an indefinite period. Court find no error and shall affirm the judgment.

A jury convicted defendant Allen Hart of four counts of aggravated sexual assault of a child (Pen. Code, 269, subds. (a)(1), (a)(3); unspecified section references that follow are to the Penal Code) and three counts of forcible lewd acts on a child under the age of 14. ( 288, subd. (b)(1).) The trial court found defendant guilty of possession of a firearm by a felon ( 12021, subd. (a)(1)) and found prior strike allegations to be true. ( 667, subd. (a).) Sentenced to an aggregate prison term of 300 years to life, defendant appeals. He contends that (1) the trial court abused its discretion in admitting his prior convictions for impeachment purposes, and (2) section 269 violates the equal protection clauses of the federal and state Constitutions.
Court affirm the judgment.

Defendant John Anthony Almeda shot and wounded Angelo S. in a drive-by shooting, leaving Angelo paralyzed. An information charged defendant with attempted premeditated murder, discharge of a firearm from a motor vehicle, and possession of a firearm by a convicted felon. (Pen. Code, 664/187, subd. (a), 12034, subd. (c), 12021, subd. (a)(1).)[1] The information further alleged defendant committed the offenses in association with a criminal street gang. ( 186.22, subd. (b)(1).) A jury found defendant guilty, and the trial court sentenced him to life with the possibility of parole, with a consecutive term of 25 years to life. Defendant appeals, contending: the court erred in denying his motions for a continuance and a mistrial, the court violated his constitutional right to confront and cross examine witnesses, and cumulative error. Court affirm the judgment.

Defendant Tony Edward Washington appeals from the sentence imposed following his pleas of no contest to assault by means of force likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1))[1]and misdemeanor statutory rape ( 261.5, subd. (c)) and his admission of a violation of probation. He contends the trial court abused its discretion in sentencing him to the upper term on the assault charge by utilizing an improper aggravating factor and erred in determining factors in mitigation. Defendant also contends the trial court violated his rights under Cunningham v. California (2007) 549 U.S. 270by imposing the upper term on a finding that his prior convictions were numerous and of increasing seriousness. Court affirm.

Defendant appeals from the judgment of conviction after he entered a plea of no contest to one count of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1); Ct. 4)[1]and the trial court sentenced him to prison for the upper term of three years. On appeal, he claims that imposition of an upper term sentence violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856](Cunningham) because the trial court ignored the circumstances in mitigation and violated his rights to due process, equal protection, and against ex post facto laws and because the trial court imposed sentence under section 1170, subdivision (b) as amended by Senate Bill No. 40 (SB 40). Court find no error and shall affirm the judgment and sentence.

A jury convicted Phillip Lynn Dorsey of residential burglary (Pen. Code,[1] 459 & 460) and unlawful taking and driving of a vehicle (Veh. Code, 10851, subd. (a)) and found the firearm allegation related to each count to be true ( 12022.5, subd. (a), 1192.7, subd. (c)(23)). The jury was unable to reach a verdict on two remaining counts. The court declared a mistrial on the remaining counts. Dorsey appeals challenging only his convictions for residential burglary and unlawful taking and driving of a vehicle. As to those convictions he contends the trial court erred in excluding the proposed testimony of a defense witness. The Attorney General has responded asking that the appeal be dismissed for failure by Dorsey to obtain a certificate of probable cause ( 1237.5). Court reject the Attorney General's contention that this appeal requires a certificate of probable cause. Court also find the trial court did not abuse its discretion in excluding the testimony of a proposed defense witness under Evidence Code section 352. Court affirm the judgment.

Appellant Cynthia Venie (Cynthia) and respondent Noel Raagas Alfsen (Noel) had two children together, Alicia who was six at the time of these proceedings and Andrea who was sixteen. On July 30, 2004, they stipulated to a judgment of dissolution. When they separated, Cynthia and Noel tried a 50-50 split custody of the children. Noel later abandoned custody of Andrea, and she has lived with Cynthia since July 2006. The judgment is affirmed.

David Michael McElmurry entered negotiated guilty pleas to one count of distributing child pornography (Pen. Code, 311.1, subd. (a))[1]and two counts of possessing child pornography ( 311.11, subd. (a)). In exchange for the guilty pleas, the prosecution agreed to a sentencing lid of 16 months and dismissed two other distribution counts and eight other possession counts. The trial court sentenced McElmurry to five years of probation, conditioned on his serving 365 days in jail (work furlough), and registering as a sex offender ( 290). McElmurry appeals, contending the residency restriction (1) violates retroactivity proscriptions; (2) violates ex post facto law proscriptions; (3) violates his rights of due process; and (4) is void for vagueness.