CA Unpub Decisions

After pleading guilty to transportation of a controlled substance (Health and Saf. Code, 11379, subd. (a)), defendant Kenneth Ian Rosner appeals from the trial courts denial of his motion to suppress evidence. (Pen. Code, 1538.5; undesignated statutory references are to the Penal Code.) Defendant contends a traffic stop for speeding changed impermissibly in focus and intensity and became unreasonably prolonged in violation of the Fourth Amendment to the United States Constitution, when a police dog (Maximus) sniffed the outside of defendants car for the odor of narcotics. Court affirm.

Defendant Carlos Bernadino Mendez, Jr., pled no contest to assault with a deadly weapon after swinging a knife at a man and telling him, were going to kill you white boy. (Pen. Code, 245, subd. (a)(1); further section references are to the Penal Code unless otherwise specified.) Defendant also admitted that he had a prior serious felony conviction a year earlier for making a criminal threat by holding a paring knife to his mothers throat and saying, Ill slice your throat, bitch. In exchange for his plea, additional charges were dismissed, and the People agreed not to file a new felony assault case that was alleged to have occurred in the Butte County Jail while [the] case was pending. Based on defendants plea, the trial court found that he violated conditions of his probation in . . . three other matters. On appeal, defendant contends that the trial court abused its discretion by refusing to strike the prior conviction and by imposing the upper term for the assault. Court disagree and shall affirm the judgment.

Arnold Cedric Bacon appeals from an order recommitting him to the custody of the California Department of Mental Health (the DMH) for an indeterminate term under provisions of the Sexually Violent Predators Act (Welf. & Inst. Code,[1] 6600 et seq., hereafter the SVPA) that took effect after the District Attorney's office filed its recommitment petition. On the People's amended petition seeking to recommit Bacon to an indeterminate term, the trial court issued its recommitment order without holding a trial. On appeal, Bacon contends: (1) the amended SVPA does not apply to him in part because he was not in the custody of the Department of Corrections; (2) the trial court was required to conduct a jury trial on the question of whether he was a sexually violent predator (SVP); (3) the amended SVPA's indeterminate commitment term and the differing protection for persons seeking judicial review with and without the Director of Mental Health's authorization violate state and federal guarantees of equal protection; and (4) the burden-shifting provisions of sections 6605 and 6608 violate due process. In his petition for writ of habeas corpus, Bacon contends he was prejudiced by constitutionally ineffective representation from his appointed counsel in connection with his probable cause hearing, in part because his counsel did not file motions to suppress evidence of uncharged offenses, actuarials and other prosecution evidence.
We conclude the trial court erred by retroactively converting Bacon's prior two-year commitment term to an indeterminate term without a jury trial and without a determination of Bacon's current status as an SVP. Because on remand Bacon will have an opportunity to make his evidentiary challenges at a new trial and he has not shown prejudice from his counsel's assertedly ineffective assistance at his probable cause hearing, Court deny his petition for writ of habeas corpus.

Ali Alsharifi was convicted of assault with a deadly weapon and vandalism. Alsharifi was sentenced to a prison term of three years. He appeals, arguing the trial court erred in instructing in the terms of CALCRIM No. 3472 that a claim of self defense may not be contrived.
The judgment is affirmed.

We affirm an order quashing a subpoena on defendant, a resident of Mexico. Contrary to plaintiff's argument, the evidence she presented was not sufficient to establish as a matter of law that defendant had substantial, continuous and systematic contacts with the state at the time the complaint was served such that California could exercise general jurisdiction over defendant. At most the evidence plaintiff presented showed that defendant had, at or near the time of service, some relationship with a California business. Plaintiff's evidence, however, did not show that defendant exercised the level of control over or participation in the business which would permit California to exercise jurisdiction over him with respect to matters unrelated to the business. Moreover, there is nothing in the record which shows defendant's activities in the state were in any meaningful way connected to plaintiff's injuries. Thus the trial court did not err in granting defendant's motion.

Milo Lareese Oliver appeals a judgment following his jury conviction of possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)), assault while on public transportation (Pen. Code, 241.3, subd. (a)), and resisting a public officer ( 148, subd. (a)(1)). On appeal, Oliver contends the trial court erred by: (1) not stating on the record its reasons for imposing the middle term for his possession offense; and (2) not instructing on the juror unanimity required regarding the same act that constituted the assault offense.

Defendant and appellant Louis Medel Delgado previously appealed his conviction of numerous counts of child molestation. Court affirmed the substantive convictions but remanded for resentencing. Defendant again appeals, arguing that the court erred in some of the particulars recorded on the abstract of judgment. Court order some corrections made, and affirm.

Appellant Sean Michael Carter stands convicted of numerous offenses arising out of domestic violence he inflicted on his wife, Barbara Carter.[1] Carter contends that admission of his prior domestic violence offenses violated due process and the trial court erred in refusing to strike one of his prior convictions in the interest of justice. Court affirm the judgment.

Defendant Julian Fernando Ybarra appeals from his conviction of possession of methamphetamine for sale and possession of a firearm by a felon. He contends the trial court erred in denying his motion to suppress evidence seized by police officers while they detained him in an alleyway behind his apartment based on an anonymous telephone call. In particular, defendant argues the police officers did not have a reasonable suspicion of criminal activity necessary to justify the detention. Court disagree and thus affirm the judgment.

In May 2006, the Fresno Police Department received a report that appellant, Lano Cruz Medina, was molesting his girlfriends sons. Police officers interviewed the older victim who was then 12 years old and he stated that Cruz would play with the victims penis inside or outside his underwear and have the victim rub Cruzs penis. Cruz would also orally copulate the victim and have the victim orally copulate him. This occurred two to three times a week for about a year. Cruz attempted to sodomize the victim twice. The judgment is affirmed.

Appellant, Guillermo Mata Islas, pleaded guilty to two counts each of making a fraudulent representation for the purpose of obtaining compensation within the meaning of Labor Code section 3207, presenting false or misleading information on an insurance claim, and failure to disclose or concealing an event affecting the right or entitlement to an insurance benefit. Islas was sentenced to six years in state prison and he contends the trial court failed to provide a statement of reasons supporting the imposition of the aggravated term.

Michael O., father of Michael O., Jr., petitions for extraordinary relief from the orders of the juvenile court terminating reunification services, refusing to place the child with the paternal grandmother, and referring the case to a permanent plan selection hearing. (Cal. Rules of Court, rule 8.450.) The father contends these orders, as well as the prior jurisdiction findings and disposition orders, must be vacated because he was a minor and the court failed to appoint a guardian ad litem to represent him. The father also contends there is insufficient evidence to support the finding that he was provided with reasonable reunification services, and he contends the juvenile court erroneously denied the relative placement preference to the grandmother. Court find the father has not shown any prejudice from the failure to appoint a guardian ad litem and there is substantial evidence in the record to support the juvenile courts remaining findings. Accordingly, Court deny relief.

Following a court trial, defendant Salvador Alvarado was convicted of first degree burglary (Pen. Code 459, 460)[1] and sentenced to the two-year mitigated term, to be served concurrently with the sentence in an unrelated case. On appeal, defendant contends that the trial court erroneously overruled his demurrer based on the statute of limitations, and that the evidence adduced at trial does not overcome the statute of limitations bar. Court find that the demurrer was properly overruled; however, Court must reverse the conviction and remand the matter to the trial court with directions to determine whether the burglary charge was time barred. The judgment is reversed.

Tamio Onishi appeals from an order denying his motion to set aside a 1998 default judgment entered against him. Onishi and Ricardo Ramirez appeal from the portion of this order awarding attorneys fees to respondents Mary Murguia and Frank Murguia pursuant to Family Code section 271. They also appeal from an order vacating and expunging the acknowledgement of the satisfaction of judgment. On appeal, Onishi contends that the judgment entered against him is void on numerous grounds and that the trial court erred in denying his motion to set aside a default judgment. Onishi and Ramirez contend: (1) the order vacating the satisfaction of judgment is void; (2) the trial court erred in striking their testimony; and (3) the award of attorneys fees deprived them of due process of law. Court affirm the order, which was filed on December 12, 2006, denying the motion to set aside the 1998 default judgment and awarding attorneys fees. We also dismiss the appeal from the order, which was filed on April 3, 2006, vacating and expunging the acknowledgment of the satisfaction of judgment.