CA Unpub Decisions

On February 1, 2007, Tulare Police Officer Rose Denny responded to a call of a fight in progress at Tulare Western High School and stopped at an alley where she saw approximately 10 males, including appellant, Jose G. As Denny asked one of the males why they were in the alley, Jose began backing away from her. Denny asked Jose where he was going? She told him she was going to pat him down for weapons and asked if he was carrying anything. Jose replied that he had a blade in his pocket. Denny retrieved a hunting knife and a box cutter from Joses right front pants pocket. The judgment is affirmed.

On February 1, 2007, Tulare Police Officer Rose Denny responded to a call of a fight in progress at Tulare Western High School and stopped at an alley where she saw approximately 10 males, including appellant, Jose G. As Denny asked one of the males why they were in the alley, Jose began backing away from her. Denny asked Jose where he was going? She told him she was going to pat him down for weapons and asked if he was carrying anything. Jose replied that he had a blade in his pocket. Denny retrieved a hunting knife and a box cutter from Joses right front pants pocket. The judgment is affirmed.

While under the influence of marijuana, defendant George William Carter II drove his automobile inside a parking structure in such a fashion as to pin the victim between his vehicle and another, resulting in her death. (We relate other relevant facts in our discussion.) A jury convicted him of gross vehicular manslaughter while intoxicated. (Pen. Code, 191.5, subd. (a); all further statutory references are to this code except as otherwise stated.) He pleaded not guilty by reason of insanity but the jury found him to have been sane when he committed the offense. In a trifurcated trial, the court found he had previously committed three strike offenses. ( 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) The court imposed a third strike term of 25 years to life on the 191.5, subdivision (a) conviction and a 5-year determinate term for the prior serious felony enhancement, resulting in a state prison sentence of 30 years to life. The court also granted presentence credit and imposed a restitution fine and victim restitution.

Defendant raises four issues in his appeal: (1) the evidence defendant was insane is of such weight and character that the jury could not reasonably reject it (capitalization omitted); (2) CALCRIM No. 3450 (Insanity) is incomplete; (3) the court abused its discretion in failing to dismiss a prior strike; and (4) the sentence imposed is cruel and unusual. Court reviewed the evidence and considered defendants legal challenges and disagree with each of his contentions. Court therefore affirm the judgment.

Defendant Edgardo Barajas Velasquez appealed from an order imposing a probation condition prohibiting him from having any contact with his wife, Andrea Velasquez, the victim of his domestic violence. Defendant contended the condition violated his rights to free association and marital privacy and therefore could not withstand constitutional scrutiny. In an unpublished opinion, we disagreed and affirmed the order. (People v. Velasquez (Mar. 6, 2008, G037925) [nonpub. opn.].) Court agree with the parties that the superior court had jurisdiction to modify the probation term while the appeal was pending. (In re Osslo (1958) 51 Cal.2d 371, 380 [trial court retains jurisdiction to supervise the appellants probation pending appeal, The appeal is ordered dismissed as moot.

Defendant William Eric Vanhorn appeals after a jury found him guilty of possession of methamphetamine for sale in violation of Health and Safety Code section 11378. Defendant contends the trial court erred by (1) denying his motion to suppress statements he made to a police officer before he was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and (2) excluding evidence of statements defendant made to a police officer after he was read his rights under Miranda, which he contends were admissible under Evidence Code section 356. We affirm. Defendant was not in custody at the time he was originally questioned by the police; therefore, Miranda did not apply. Evidence of statements defendant made during a separate interview constituted inadmissible hearsay that did not fall within Evidence Code section 356.
The judgment is affirmed.

A jury convicted Daniel James Bell of assault with intent to commit rape (Pen. Code,[1] 220; count 1), first degree robbery in an inhabited residence ( 211, 212.5, subd. (a), 213, subd. (a)(1); count 2), and first degree burglary ( 459, 460, subd. (a); count 3). The jury found true allegations Bell burglarized an occupied residence ( 667.5, subd. (c)(21)), and that he had one prior strike under the Three Strikes law ( 667, subds. (d)-(e)(1), 1170.12, subds. (b)-(c)(1)) and one prior serious felony conviction ( 667, subd. (a)(1)).
Bell contends the trial court committed reversible error by failing to give a unanimity instruction in conjunction with the assault with intent to commit rape charge. In the alternative, he argues the court violated section 654s proscription against double punishment by imposing a consecutive sentence on count 2, first degree robbery, in addition to the sentence imposed on count 1, assault with intent to commit rape. Finally, Bell asserts the trial court misunderstood its sentencing discretion by ordering that the sentence in this case run full term and consecutively to the sentence imposed in the Los Angeles County case, and that the court violated the ex post facto clauses of our and federal Constitutions by applying the current version of section 667.6 instead of the version in effect when he committed the crimes. Court affirm.

John Randal Widly appeals the judgment entered following conviction by jury of possession of methamphetamine (Health & Saf. Code, 11377, subd.(a); count 1) and possession of controlled substance paraphernalia (Health & Saf. Code, 11364, count 2). The trial court suspended imposition of sentence and placed Widly on formal probation for three years under the terms and conditions of Proposition 36.
On the other hand, we agree with Widlys instructional error claim, at least with respect to jury unanimity. Because the facts that prompted the midtrial amendment also established more than one discrete act of unlawful methamphetamine possession, the trial court committed what has been called the most common kind of instructional error in criminal cases by failing to sua sponte instruct the jury with a unanimity instruction. (People v. Norman (2007) 157 Cal.App.4th 460, 467 (Norman).) Moreover, Court conclude the absence of a unanimity instruction amounts to reversible error because without it, we cannot determine whether the jury unanimously agreed on the factual basis for the verdict. Therefore, the judgment must be reversed as to count 1, and the case remanded for a new trial on that count. In all other respects, the judgment is affirmed.

A jury convicted defendant Renee Taiyean Au of two counts of stalking in violation of Penal Code section 646.9, subdivision (a). (All further statutory references are to the Penal Code.) The trial court then entered an order under section 1202.4 directing defendant to pay restitution to Jon Grazer, one of her two victims. Defendant appealed both the judgment and restitution order. This court issued separate opinions affirming defendants conviction (People v. Au (Oct. 17, 2006, G034978) [nonpub. opn.]), but reversing the restitution order with directions to conduct a new hearing (People v. Au (Oct. 17, 2006, G035711) [nonpub. opn.]). The restitution order is affirmed.

Michael H. challenges the juvenile courts decision to terminate his parental rights over his eight-year-old daughter Monique. He contends the court should have invoked the so-called benefit exception to termination, and there is insufficient evidence Monique is adoptable. Court reject these contentions and affirm the judgment.

Brandi and Richard Walter were married in March 2004. Brandi had a daughter from a previous relationship, Abigail, who was two years old at the time of the marriage. Eighteen months later, Brandi and Richard had a daughter, Audrey. The parties separated in February 2006, and Brandi filed a petition to dissolve the marriage in March 2006. Temporary custody of Audrey was awarded to Richard. Following a court-ordered custody evaluation, the parties stipulated that Brandi would have primary physical custody, and Richard would have supervised visits amounting to a 20 percent timeshare.
Notwithstanding, the court found it was in Audreys best interest to remain with Brandi as the custodial parent. The court stated Audrey had been primarily in the care of her mother since the parties separated 18 months before and noted it would be against the public policy of this state to separate Audrey from her sibling Abigail. It found the childs need for continuity and stability outweighed the potential hindrance of the move. The order granting Brandis request to move away and denying Richards request to change custody is affirmed. Brandi is entitled to costs on appeal.

We appointed counsel to represent Fidencio Sanchez Noriega on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on his behalf. Noriega was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from Noriega. Court have examined the record and found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Noriega filed a timely notice of appeal in which he stated: I was told I would get more time if I didnt sign that day. Police officer was less than truthful. The trial court denied Noriegas request for a certificate of probable cause on December 28, 2007. The judgment is affirmed.

Defendant David Ortiz submitted two pending cases to the trial court, pursuant to Bunnell v. Superior Court (1975) 13 Cal.3d 592, on the condition that, if convicted, he would be sentenced to a maximum term of five years, four months in state prison. In case No. CC634568, the court found defendant guilty of possession of heroin (Health & Saf. Code, 11350, subd. (a)) and using or being under the influence of opiates (Health & Saf. Code, 11550, subd. (a)), and found true the allegation of a prior felony conviction of robbery (Pen. Code, 211)[1] that qualified as a strike ( 667, subd. (b)--(i), 1170.12). In case No. CC635869, the trial court found defendant guilty of possession of heroin for sale (Health & Saf. Code, 11351) and found true the allegations of a prior violent or serious felony conviction of battery with serious bodily injury ( 667.5, subd. (c), 1192.7, subd. (c)) and that he was out of custody on bail at the time of the offense ( 12022.1). Defendant was sentenced to a total term of three years eight months. On appeal, defendant asks this court to conduct an independent review of the trial court proceedings in case No. CC634568 pertaining to his Pitchess motion for discovery of police personnel records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) As discussed below, we have independently reviewed the record on appeal in case No. CC634568 and conclude that the judgment should be reversed and the matter remanded to the trial court with directions to conduct an in camera hearing on defendants Pitchess motion. Defendant does not raise any issues on appeal with respect to case No. CC635869. Therefore, in case No. CC635869 Court affirm the judgment.

John Stoner, on behalf of himself and as a qui tam plaintiff for the State of California and County of Santa Clara, seeks review of an order sustaining the demurrer of school officials in the California public school system and another order granting summary adjudication to the Santa Clara County Office of Education (SCCOE) and Colleen Wilcox, the county superintendent of schools. Appellant contends that he should be permitted to proceed with his allegations under the California False Claims Act and various statutory and contractual provisions related to his non-reelection as a teaching intern. Court find no error and affirm the judgment.

On appeal, Segura raises 11 issues only the first of which this court needs to address. Specifically, Segura contends that the trial court lacked jurisdiction to declare his previously adjudicated commitment to be indeterminate.[4] Essentially, the People contend that this appeal has been rendered moot because the initial commitment order has been reversed. Accordingly, "there is no basis for application of the retroactive indeterminate term." For reasons that follow we agree that the lower court's July 26, 2007 order must be reversed.
The lower court's July 26, 2007 order, imposing an indeterminate term of commitment as an SVP on Segura, is reversed.