CA Unpub Decisions

On June 13, 2006, appellant, minor Kim P., admitted allegations in a 602[1]petition of burglary (Pen. Code, 459) and automobile theft (Veh. Code, 10851). He was placed on probation. On October 25, 2006, another 602 petition was filed alleging three misdemeanors: burglary (count 1 - Pen. Code, 459); malicious mischief (count 2 - Pen. Code, 594, subd. (b)(2)); and trespass (count 3 - Pen. Code, 602, subd. (l)). Following a contested hearing, the trial court sustained counts 1 and 3, and dismissed count 2. At the dispositional hearing, the minor was continued on probation. The minute orders of May 3 and May 8, 2006, list an incorrect subdivision for count 3, trespass. The correct violation is Penal Code section 602, subdivision (l). As corrected, the orders are affirmed.

Defendant Eugene Hart appeals after the trial court revoked his probation in two cases and sentenced him to prison. Court affirm.

Arden Realty Finance V., L.L.C. (Arden) appeals from the trial courts order denying its motion for attorney fees following the voluntary dismissal by Multi-Specialty Surgical Center, Inc. (MSSC) of its claims against Arden for imposition of a constructive trust and declaratory relief. Because none of the attorney fee provisions in the lease agreements involved in this commercial landlord-tenant dispute authorizes an award of fees in the circumstances present here, Court affirm.

David James Ziesmer appeals a judgment following conviction of first-degree murder, street terrorism, conspiracy to being an accessory to murder, and solicitation of murder, with findings of special circumstances, personal use of a deadly weapon, commission of crimes to promote a criminal street gang, and a prior felony strike conviction. (Pen. Code, 187, subd. (a), 189, 186.22, subd. (a), 182, subd. (a)(1), 32, 653f, subd. (b), 190.2, subd. (a)(17)(A) & (B), 12022, subd. (b)(1), 186.22, subd. (b)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Court affirm.

Frederick L. Jackson appeals from the judgment entered after conviction by a jury of the first degree murder of Genoveva Gonzales. (Pen. Code, 187, subd. (a), 189.)[1] The jury found true an allegation that a principal in the commission of the offense had been armed with a firearm. ( 12022, subd. (a)(1).) The jury found not true a special circumstances allegation that the murder had been committed during the commission of rape. ( 190.2, subd. (a)(17).) Appellant was sentenced to prison for 26 years to life.

This conviction followed a retrial of the murder charge. Appellant was originally convicted of first degree murder and rape. ( 261, subd. (a)(2).) The jury found true an arming enhancement ( 12022, subd. (a)(1)) and a special circumstances allegation that the murder had been committed during the commission of rape. The jury acquitted appellant of kidnapping Gonzales. Appellant was sentenced to life without the possibility of parole plus a consecutive six-year term for the rape conviction. In an unpublished opinion, we modified the judgment to stay the sentence on the rape conviction and affirmed the judgment as modified. (People v. Jackson (March 4, 1997, B097070).)[2]

On March 26, 2004, the Ninth Circuit Court of Appeals granted a writ of habeas corpus vacating the first degree murder conviction. The Ninth Circuit concluded that evidence had been "admitted against [appellant] in patent violation of Miranda v. Arizona [(1966) 384 U.S. 436], and [appellant had] suffered substantial prejudice as a result." (Jackson v. Giurbino (9th Cir. 2004) 364 F.3d 1002, 1011 (Jackson).) The Ninth Circuit left undisturbed appellant's rape conviction. (Id., at pp. 1011-1012.)

Appellant contends that the trial court erroneously (1) took judicial notice of the rape conviction, (2) precluded him from presenting evidence of the kidnapping acquittal, (3) denied his motion for a mistrial, and (4) imposed a parole revocation restitution fine pursuant to section 1202.45. Respondent correctly concedes that the imposition of the fine violated the constitutional ban against ex post facto laws. Court modify the judgment to strike the fine and affirm the judgment as modified.

A jury convicted defendant Michael Alexander Barrios of one count of assault with a deadly weapon (Pen. Code, 254, subd. (a)(1)), and one count of attempted robbery (Pen. Code, 664, 211.)[1] He contends the trial court erred in (1) failing to give his complete Boykin-Tahl admonishments; (2) denying his Romero motion to strike a prior strike; (3) failing to stay his sentence on the attempted robbery count under section 654; and (4) calculating his presentence custody credits. Court affirm the judgment of conviction, and remand the matter for resentencing.

A jury convicted Victor Castanon of second degree robbery, and he admitted in a bifurcated proceeding he hadpreviously served two separate prison terms for felonies.[1] He was sentenced to an aggregate state prison term of seven years, the upper term of five years for the robbery, plus an additional two years for the prior prison term enhancements. On appeal Castanon contends the imposition of the upper term for robbery based on factual determinations made by the court, not the jury, violated his federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). Court affirm.

Anthony Bynum was convicted of being a felon in possession of a firearm (Pen. Code,[1] 12021, subd. (a)(1)), with the special allegation found true that he had served two prior prison terms within the meaning of section 667.5, subdivision (b). On appeal, Bynum argues that the Court of Appeal should review the in camera proceedings conducted by the trial court pursuant to Bynums motion for production of documents under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and Evidence Code section 1043; that his conviction should be reversed because he did not knowingly and intelligently waive his constitutional rights before admitting his prior convictions; and that the trial court committed sentencing error. Court affirm the conviction but remand for resentencing.

George Clayton appeals from a judgment after a court trial in favor of defendants Randy Taylor and Heather Taylor in his action to enforce his secondary easement rights relating to a water supply on the Taylors property. He contends the trial court improperly entered injunctive relief prohibiting him from entering the Taylors property and erred as a matter of law in limiting his secondary easement rights. Court reverse and remand for the trial court to enter declaratory, rather than injunctive relief, in favor of the Taylors.

A jury convicted Jessica Blume of petty theft, and she admitted in a bifurcated proceeding she had suffered a prior theft-related conviction and had served a separate prison term for a felony. The trial court sentenced Blume to an aggregate state prison term of four years, the upper term of three years for petty theft with a prior theft-related conviction, plus one year for the prior prison term enhancement. On appeal Blume contends imposition of the upper term sentence based on a factual determination made by the court, not the jury, violated her federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). Court affirm.

Appellant Joseph Aaron Johnson was found guilty of one count of selling cocaine base (Health & Saf. Code, 11352, subd. (a)) (the drug sale case). That crime occurred on July 18, 2006. The information also alleged that (1) he had one prior strike conviction, a conviction for robbery on March 9, 2006 (the robbery case), and (2) at the time of the drug sale case, he had been released from custody on bail or on his own recognizance on the robbery case. (Pen. Code, 12022.1.)[1] The court found those allegations to be true. Appellant was sentenced to 10 years in prison based on the four-year midterm for the crime, doubled for one strike, plus two years for the section 12022.1 enhancement. This appeal followed. Appellant contends: (1) The case must be remanded so that the trial court can exercise its discretion on whether to strike the prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). (2) If the case is remanded, he cannot be sentenced consecutively on the robbery case and on this case. (3) This court should review the transcript of the sealed in camera hearing that was held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), to determine if the scope of discovery was improperly limited.
Court requested supplemental briefing on this question: Since the defendant had not been sentenced on the robbery case at the time he sold the rock of cocaine, did the robbery qualify as a prior strike conviction, for the purpose of the Three Strikes law. In the supplemental briefing, in addition to addressing the question we asked, appellant raises a new issue, which is that the case should be remanded so that the trial court can exercise its discretion on striking the enhancement. Respondent counters that the new issue was improperly added in the supplemental briefing. Having reviewed all the briefing, Court find no error and affirm.

Defendant Avedis Messrelian appeals from the judgment entered following his no contest plea to being a felon in possession of a firearm. (Pen. Code, 12021, subd. (a)(1).) After a contested hearing, he was ordered to pay restitution to the victims as a term and condition of probation. He contends that the restitution order violated the principles set forth in People v. Harvey (1979) 25 Cal.3d 754 (Harvey), did not relate to the charge to which he had pled, and was not supported by the evidence. Court affirm the judgment.

Defendants Marina Ossit, Garii Bagdasarov, Omega Transportation, Omega Trans, Inc., and Mikhail Zadoyen, appeal judgment entered on a settlement agreement entered into with plaintiff Armen Margaryan. Defendants contend the judgment entered did not reflect the agreement of the parties. Court affirm.

Louie Leyva was convicted by plea of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b)) and appeals, contending that he was denied effective assistance of counsel. The trial court denied probation and sentenced appellant to six years state prison. Court affirm.