CA Unpub Decisions

Appellant Joshua Devin Randall was stopped for speeding by a California Highway Patrol officer on August 30, 2006. The officer detained appellant after appellant exited his vehicle. Appellant had a beer can in his hand and attempted to walk away from the officer, who grabbed him by the arm and brought him back. The officer detected a strong odor of alcohol, and placed appellant in the back seat of his patrol car. The officer then returned to the truck to make sure no one else was inside, and saw a pistol on the floorboard, which he later determined was loaded. The officer checked appellants driving record, which revealed appellants license had been revoked and he was a convicted felon.
Appellant was charged by an information filed September 25, 2006, with felony possession of a firearm by an ex felon (Pen. Code, 12021, subd. (a)(1)) (count 1), misdemeanor driving under the influence of alcohol (Veh. Code, 23152, subd. (a)) (count 2), misdemeanor driving with .08 percent or more blood alcohol level (Veh. Code, 23152, subd. (b) (count 3), and misdemeanor driving with suspended or revoked license (Veh. Code, 14601.1, subd. (a)) (count 4). The May 26, 1999 prior felony conviction charged in count 1 was a violation of Vehicle Code section 2800.2.
On November 22, 2006, appellant entered a guilty plea to count 1. On April 17, 2007, appellant was sentenced to the aggravated term of three years. On appeal, appellant challenges imposition of the upper term.

Defendant Vince Allen Walker appeals the sentence imposed following his guilty plea to possession of a controlled substance (methamphetamine) (Health & Saf. Code, 11377, subd. (a)), and admission of two prior prison term allegations (Pen. Code, 667.5, subd. (b)). Appellant contends the trial court violated the dual use of facts prohibition in using prior felony convictions to impose the upper term; his upper term sentence violated Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham)and People v. Black (2007) 41 Cal.4th 799 (Black); and Black and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval)were wrongly decided.
The judgment is affirmed.

On June 12, 2007, an original juvenile petition (Welf. & Inst. Code, 602, subd. (a)) was filed against appellant Maurice M. alleging that he committed a felony: operating a motor vehicle with intent to evade a police officer (Veh. Code, 2800.2, subd. (a));[1]and two misdemeanors: reckless driving causing bodily injury (Veh. Code, 23104, subd. (a)) and driving without a license (Veh. Code, 12500, subd. (a)).

A contested jurisdictional hearing was held on July 3, 2007. After the close of the prosecution case, the court denied appellants motion under Welfare and Institutions Code section 701.1 to dismiss the petition. Following the conclusion of all the evidence and argument by counsel, the court sustained the allegations of the petition.
At the dispositional hearing on July 31, 2007, the court declared appellant a ward of the court and placed him on in-home probation. He was permitted to reside with a relative of his mother in Vancouver, Washington. Probation conditions included, among other items, a 6:00 p.m. curfew and completion of anger management classes. Appellant received a maximum confinement time of three years four months. Appellants counsel has advised us that her examination of the record has revealed no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel has advised her client in writing that a Wende brief was filed and that he had the right to personally file a supplemental brief in this case within 30 days. No such supplemental brief was filed. Court agree that the record reveals no arguable issues and affirm.

In appeal number B189435, plaintiff Donald C. Morrow appeals from an order of dismissal following the sustaining of a demurrer without leave to amend entered in favor of defendants Business, Transportation and Housing Agency of the State of California, its Secretary, Sunne Wright McPeak, and its General Counsel, Edward Heidig; John R. Drews, General Counsel of the California Department of Financial Institutions; the Department of Justice of the State of California and former Attorney General Bill Lockyer. In appeal number B190942, plaintiff appeals from a summary judgment in favor of defendants California Department of Financial Institutions (DFI) and its Commissioner, Donald R. Meyer at the time this action was filed.
In a previous appeal by plaintiff, we held that the trial court erred in sustaining a demurrer as to defendants Donald R. Meyer and the DFI and dismissing the action as to them. We upheld the dismissal of the action as to the State of California. (Morrow v. Meyer (Mar. 30, 2004, B164096) [nonpub. opn.].) On this appeal, Court affirm the judgment of dismissal in appeal number B189435. Court reverse the summary judgment in appeal number B190942.

This appeal involves allegations that a mobilehome park and a number of mobilehome dealers were involved in an illegal tying arrangement per se whereby prospective park tenants were forced to buy a mobilehome from one of the dealers in order to secure a space in the park. Court hold that plaintiff has not stated causes of action for violating the Cartwright Act, the Unfair Competition Law, or interference with prospective economic advantage. Thus, Court affirm the judgment of dismissal entered after the trial court sustained two demurrers without leave to amend.

Appellants Marvin Clay and Deandre Hemphill appeal their convictions by jury. Clay was convicted one count of robbery (Pen. Code 211), and the jury found true an allegation that he personally used a firearm. ( 12022.53, subd. (b).) Hemphill was convicted by the same jury of two counts of robbery. On the first count, the jury found true an allegation against Hemphill that his co-defendant was armed with a firearm. ( 12022, subd. (a)(1).) The trial court found true allegations that Hemphill had served two prior prison terms for felony convictions. ( 667.5, subd. (b).) The trial court sentenced Clay to a total of 13 years in state prison consisting of a 3-year middle term for the robbery count plus 10 years for use of the firearm. ( 211 & 12022.53, subd. (b).) The trial court sentenced Hemphill to a total prison term of 9 years consisting of a 5-year upper term for the first robbery count, an additional one year based on his co defendant's use of a firearm, a consecutive one year term for the second robbery count (one third the middle term), and two one year terms for the two prior prison terms. ( 667.5, subd. (b).) Clay contends 1) that the trial court erred when it summarily denied his motion for in camera review of peace officer personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and 2) that his counsel rendered ineffective assistance because she did not request a modified jury instruction regarding eyewitness identification. Court agree with Clay's first contention, and conditionally reverse and remand for further proceedings as to Clay only.

Defendant was charged with pimping a minor under the age of 16 (Pen. Code, 266h, subd. (b)(2)) and pandering by procuring a minor under the age of 16 ( 266i, subd. (b)(2)), as to the same victim, Miranda M. The jury found defendant guilty of pandering and the lesser included offense of attempted pimping. The trial court, having stayed the four year upper term for the attempted pimping conviction pursuant to section 654, imposed an eight year upper term prison sentence on the pandering conviction.
The judgment is affirmed.

An amended information charged defendant Nathaniel Lee Lewis with assaulting Kaleena Robertson with a deadly weapon on or about April 24, 2005, in violation of Penal Code section 245, subdivision (a)(1), and attempting to dissuade Robertson from testifying between January 2 and April 30, 2005, in violation of section 136.1, subdivision (a)(2). A prior strike conviction was also alleged ( 1170.12, subds. (a)-(d)), along with a prior serious felony ( 667, subd. (a)) and a single prior prison term for two prior convictions ( 667.5, subd. (b)). A jury acquitted defendant of the section 245 offense, but found him guilty of the lesser included offense of assault ( 240) and the attempt to dissuade Robertson from testifying. In a bench trial, the court found all prior conviction-related allegations true. Defendant was sentenced to the middle term of two years for the witness intimidation count, plus a consecutive five-year term for the serious felony enhancement. A six-month concurrent term was imposed for the assault.
In his timely appeal, defendant contends defense counsel rendered ineffective assistance of counsel in derogation of the Sixth Amendment by violating the reciprocal discovery obligations and thereby causing the trial court to bar the introduction of a photograph and witness testimony concerning the color of defendants Lexus. As we explain, defendants claim fails because the record is insufficient to establish defendants culpability for the discovery violation and, in any event, the barred evidence was of such marginal impeachment value that we cannot find a reasonable likelihood of prejudice arising out of counsels alleged deficient performance. The judgment is affirmed.

Defendant Ricardo Mendez Contreras appeals from a judgment of conviction entered after a jury trial and petitions this court for a writ of habeas corpus. Defendant was convicted of first degree murder (Pen. Code, 187, subd. (a)), in the commission of which he personally used and discharged a firearm, causing great bodily injury and death (id., 12022.53, subds. (b)-(d)). He was convicted of attempted premeditated murder (id., 187, subd. (a), 664), in the commission of which he personally used and discharged a firearm, causing great bodily injury (id., 12022.53, subds. (b)-(d)). He was convicted of shooting at an occupied motor vehicle (id., 246), in the commission of which he inflicted great bodily injury and death (id., 12022.55). He also was convicted of possession of a firearm by a felon (id., 12021, subd. (a)(1)) and possession of ammunition (id., 12316, subd. (b)(1)). The trial court sentenced defendant to state prison for a term of 50 years to life with the possibility of parole. On appeal and on petition for writ of habeas corpus, defendant raises a number of contentions, most of which are based on a claim of erroneous admission of evidence of gang membership. Court conclude the evidence properly was admitted and therefore affirm the judgment and deny the petition for writ of habeas corpus.

A.B. appeals from the order declaring him a ward of the court (Welf. & Inst. Code, 602) by reason of his having committed an attempted burglary. He contends the trial court erred in denying his section 701.1 motion to dismiss for insufficiency of the evidence. Court affirm.

The jury found defendant guilty of possessing cocaine base for sale in violation of Health and Safety Code section 11351.5. In a separate proceeding, the jury found defendant suffered a prior narcotics conviction for which he served a prison term within five years of the current offense for purposes of Penal Code section 667.5, subdivision (b). The trial court struck the prior prison term enhancement and imposed the four-year middle term sentence. In his sole appellate contention, defendant requests this court to conduct an independent review of the sealed portion of the record pertaining to discovery of personnel records of Los Angeles Police Department Officers Sucha Singh and Robin Gonzalez under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the trial court erroneously withheld discoverable information from the defense. As our independent review discloses no abuse of discretion in the trial courts Pitchess ruling, Court affirm.

Blix Street Records, Inc. ("Blix Street") appeals from a judgment entered on a purported settlement agreement pursuant to Code of Civil Procedure section 664.6. Court reverse because the parties did not, in accordance with the requirements of section 664.6, stipulate to a settlement orally before the court or in a writing, bearing the signatures of all of the settling parties. Court affirm.

Appellant, D.M, a juvenile at the time of the offenses, challenges the sufficiency of the evidence of a gang allegation and contends that a consecutive sentence must be stayed under Penal Code section 654. Court affirm.

Defendant and appellant Patrick Moore appeals from the judgment and sentence imposed after the trial court found defendant in violation of probation. Defendant argues there is insufficient evidence to support the finding that he violated probation. Because the evidence supports the trial courts finding, Court affirm.