CA Unpub Decisions

A jury convicted Erlep Leonard Mito of committing a lewd act on a child (Pen. Code, 288, subd. (a)).[1] The jury found he was a stranger to the child within the meaning of section 1203.066, subdivision (a)(3). The jury acquitted Mito of burglary with intent to commit a lewd act. ( 460, 667.61, subds. (a), (c), (d).) In a bifurcated proceeding, the court found Mito had three prior strike convictions. ( 1170.12, 668, 667, subds. (b)-(i).) The court sentenced Mito to a total term of 81 years to life, consisting of 25 years to life tripled by the three strikes law for the lewd act, one year for a prison prior conviction ( 667.5, subd. (b), 668)) and five years for a prior serious felony conviction ( 667, subd. (a)(1), 668, 1192.7, subd. (c)). Mito contends his conviction must be reversed because prior acts were erroneously admitted, he was not a stranger to the child within the meaning of section 1203.066, subdivision (a)(3), the evidence was insufficient to prove he acted with lewd intent, the instructions on the use of propensity evidence violated his right to due process, the court should have instructed on the lesser offense of annoying or molesting a child, the court improperly imposed enhancements for both a prison prior and a serious felony prior, and his sentence constitutes cruel and unusual punishment. Court conclude admission of the prior sexual offenses is reversible error.

Peter Whisler pled guilty to felony driving under the influence of alcohol. (Veh. Code, 23152, subd. (a).) He also admitted four prison priors (Pen. Code,[1] 667.6, 668) and one strike prior ( 667, subds. (b)-(i)). Each of the four prior prison terms arose from a driving under the influence conviction. The court imposed a six-year prison term, consisting of the three-year upper term on the driving under the influence offense, doubled because of the strike prior. The court dismissed the four prison priors. Whisler contends the imposition of the upper term sentence violated his constitutional rights because the court relied on aggravating circumstances that were not found by a jury or admitted by him. Court reject this contention and affirm.

On June 1, 2001, plaintiff Lenore Albert was injured in a car accident on the 91 Freeway. The driver of the other car was Renita Lewis; the passenger in the other car was Geraldine Moss. Moss and Lewis were just coming from the business office of Satellite Management Co. (Satellite) in Santa Ana. Moss was an employee of Satellite. Lewis was Mosss daughter-in-law; Moss had asked her to drive because Moss was feeling sleepy that day. Albert settled with Lewis, Moss, and other individual defendants, leaving Satellite as the only defendant at trial. A jury found that, when the accident occurred, Moss was acting within the course and scope of her employment. It therefore awarded Albert $1,850,800 against Satellite. The trial court entered judgment on the jurys verdict.
Satellite moved for a new trial, based on asserted juror misconduct. The trial court denied the motion with respect to liability but granted it with respect to causation and damages.

A jury convicted appellant Michael Bozsik of felony vandalism (Pen. Code, 594, subd. (a)). The court suspended imposition of sentence; placed appellant on five years probation, with various terms and conditions; and ordered that appellant pay to the County of Tuolumne a criminal justice administration fee of $56, $30.25 per month for probation supervision services, and $566 for preparation of the probation officers presentence report (RPO). On appeal, appellant contends the court made the probation-cost orders as conditions of probation and therefore those orders were improper. Court affirm.

Appellant Juan E. challenges the dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (YA), with a maximum term of confinement of eight years and two months. He argues that the commitment order is not supported by substantial evidence of probable benefit to him. Also, he contends that the commitment must be recalled and that he is entitled to a new dispositional hearing because he is entitled to the benefit of recent amendments to Welfare and Institutions Code sections 731 and 733. Neither argument is persuasive. Court affirm.

A jury convicted appellant Irma Rosas of felony possession of heroin (Health & Saf. Code, 11350, subd. (a)) and possession of narcotics paraphernalia (Health & Saf. Code, 11364), a misdemeanor. The court suspended imposition of sentence and placed appellant on three years probation pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Pen. Code, 1210 et seq.). On appeal, appellants sole contention is that the evidence was insufficient to support her conviction of possession of heroin. Court reverse appellants conviction of that offense and remand for resentencing.

A modification decision.

Defendant contends on appeal that: (1) The trial court denied him due process and a fair trial by erroneously admitting impeachment evidence and counsel rendered ineffective assistance by failing to object to the evidence on those grounds and by failing to request a limiting instruction. (2) The trial court denied him due process and a fair trial by erroneously admitting hearsay evidence and counsel rendered ineffective assistance by failing to request a limiting instruction and by failing to seek to redact the evidence. (3) The trial court denied him due process and a fair trial by erroneously instructing the jury with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 362. (4) The trial court prejudicially erred by instructing the jury with CALCRIM No. 1191. (5) The cumulative effect of the above errors denied him due process and a fair trial. (6) The trial court prejudicially erred by imposing the upper term. As we agree with defendants last contention, but find no other reversible error, Court reverse the judgment and remand the matter for resentencing.

Defendant Judy Ann Spotswood pleaded guilty to one count of theft or embezzlement of more than $400 by a person not a caretaker from an elder or dependent adult (Pen. Code, 368, subd. (d)) and was placed on probation.[2] On January 19, 2006, the probation department filed a petition for modification of the terms of probation, alleging that defendant violated probation. Defendant subsequently admitted the violation of probation. On March 30, 2006, the trial court reinstated probation and modified the terms and conditions of defendants probation. The probation department filed a second petition for modification of the terms of probation on December 14, 2006, alleging that defendant violated probation. After a contested hearing on May 14, 2007, the trial court found a violation of probation. The trial court sentenced defendant to the mitigated term of two years in prison, with 360 days credit.
On appeal, defendant contends the trial court illegally sentenced her to state prison immediately after finding a probation violation and without ordering the preparation of a probation report. Defendant argues that her sentence must be reversed and the matter remanded to the trial court for resentencing after the preparation of a new probation report. For reasons that we will explain, Court affirm the judgment.

Defendant Jose Anthony Lozano was convicted by plea of several counts, including one for violation of Health and Safety Code section 11550, subdivision (a)using or being under the influence of a controlled substance. At sentencing, the trial court imposed a mandatory $50 lab analysis fee under Health and Safety Code section 11372.5, subdivision (a), with respect to this count and it further imposed penalty assessments on this amount of $117.50. Defendant challenges the penalty assessments based on the contention that the lab analysis fee is not a penalty or fine to which penalty assessments may be added. Court reject this contention and affirm the judgment.

On January 29, 2007, defendant Frederick Mendiola pleaded guilty to vehicle theft with a prior conviction (Veh. Code, 10851, subd. (a); Pen. Code, 666.5), and to four misdemeanor countspossession of controlled substance paraphernalia (Health & Saf. Code, 11364), possession of burglary tools (Pen. Code, 466), prowling (Pen. Code, 647, subd. (h)), and resisting arrest (Pen. Code, 148, subd. (a)(1)).[1] Defendant also admitted a prior serious felony ( 667, subds. (b)-(i), 1170.12) and two prior prison terms ( 667.5, subd. (b)). The trial court imposed a six-year prison term for the vehicle theft, struck the prior prison term enhancements, and imposed a 74-day county jail term, deemed served, for the misdemeanor offenses. The court ordered defendant to pay $300.00 in attorney fees pursuant to section 987.8. On appeal, defendant contends, and the People concede, that there is insufficient evidence to support the attorney fees order. Additionally, defendant contends there are errors in the abstract of judgment. Court modify the judgment and affirm as modified.

Appellant Bee Leng Yeo (Wife) appeals from the trial courts denial of her petition to nullify her marriage to Yalin Ren (Husband) under Family Code section 2210, subdivision (d), on the basis of fraud. Finding no error, Court affirm the judgment.

Egnacio R. Nash Balinton appeals from the judgment dismissing his third amended complaint against the City and County of San Francisco (city). The trial court had sustained without leave to amend citys demurrer against Balintons third amended complaint. The court found, among other things, that Balintons failure to file a writ of mandate in the court following an administrative hearing barred all of his causes of action except for his first, which was based on a physical disability. Additionally, the court found all of Balintons claims were barred by the doctrine of collateral estoppel and that Balinton failed to allege a claim based on physical disability. Balinton did not raise any argument in his opening brief regarding the lower courts ruling that he failed to exhaust his judicial remedy after the administrative hearing and we conclude that he therefore forfeited any challenge on this basis. Additionally, Court agree with the trial court that Balinton failed to state a claim for physical disability.

Following a jury trial, appellant Julio C. Rosales was convicted of vehicle theft and unlawful possession of a completed check with intent to fraudulently utter or pass the check. On appeal, he contends the evidence was insufficient to support his conviction for unlawful possession of a completed check with intent to defraud. Court affirm.