CA Unpub Decisions

Appellant Master David was convicted by plea of assault with force likely to cause great bodily injury (Pen. Code 245, subd. (a)(1), forcible rape ( 261, subd. (a)(2)) and sentenced to nine years in state prison. After serving his sentence, the Board of Parole Hearings (BPH) determined that appellant met the criteria for treatment as a mentally disordered offender (MDO) under section 2962. The BPH recommended that he be confined to Atascadero State Hospital (ASH) as a condition of parole. Appellant filed a petition requesting that the trial court overturn the determination of the BPH. ( 2966, subd. (a).) Following a jury trial, appellant was found to have met the statutory criteria to be certified as an MDO and the trial court ordered him committed to ASH. Appellant claims the jury instructions permitted the jury to find that he had a severe mental disorder without also finding he had serious difficulty in controlling his behavior. Court conclude that appellant was not entitled to such an instruction, and affirm.

Plaintiff, an officer recruit with the Los Angeles Police Department (LAPD), was discharged for insubordination. Specifically, he advised other officer recruits to consult with the police union about a personnel document they did not understand, contrary to the instructions of a superior officer to sign and turn in the document at the end of class. Plaintiff challenged his discharge administratively and lost.
He then filed a petition for a writ of mandate in the trial court, arguing that his advice was protected by the First Amendment, entitling him to reinstatement. The trial court agreed that the First Amendment applied, but ruled that reinstatement was not an available remedy because plaintiff was a probationary, not a tenured, officer. Court conclude that the First Amendment afforded no protection here. The personnel document was distributed during a training class, and the officer recruits were directed to sign and return it. During a class break, some of the recruits asked plaintiff about the document. He had not received or read it because it did not apply to him; he did not discuss its substance with the recruits; and he advised them not to sign or turn it in but to consult with the police union if they did not understand it. Because such general advice absent any statement of opinion about the underlying subject matter did not address a matter of public concern, plaintiffs speech did not warrant First Amendment protection. Accordingly, the trial court properly denied the petition, and Court affirm.

On January 22, 2007, a second amended information was filed charging appellant Daniel Christopher Brown and Derrick Adams Willie with three counts of attempted robbery. ( 211, 664.)[1] The information alleged under all three counts that they had personally used a rifle (12022.53, subd. (b)) and that a principal had been armed with a semi-automatic weapon ( 12022, subd. (a)(1)). The information charged Willie, who is not a party to this appeal, with additional offenses, and alleged that all of his offenses had been committed in association with a criminal street gang ( 186.22, subd. (b)(1)(A).) Appellant pleaded not guilty and denied the special allegations. Trial by jury of appellant and Willie began on January 22, 2007. On February 5, 2007, the jury found appellant guilty as charged and found the special allegations to be true. The trial court sentenced appellant to a term of 20 years in prison. The judgment is affirmed.

Jessica M. (mother) appeals an order of the juvenile court terminating her parental rights to her daughters, Nina G. and Olivia M. (Welf. & Inst. Code,[1] 366.26.) Mother contends the Santa Barbara County Child Welfare Services (CWS) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) Court agree, reverse and remand for the limited determination of whether the ICWA applies.

Albert Petrossians sole argument on appeal is that, in his criminal trial, the court should have instructed the jury on self defense. Because we find no evidence of self defense, Court affirm the judgment.

On December 27, 2006, the Los Angeles District Attorney filed an information charging appellant with transportation of a controlled substance (Health and Saf. Code 11352, subd. (a), count 1) and possession for sale of cocaine base (Health and Saf. Code 11351.5; count 2). As to both counts, it was further alleged that appellant had served two prior prison terms (Pen. Code 667.5, subd. (b)) and had prior convictions within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c) and two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a).
Appellant pled not guilty and denied the special allegations. Trial on the prior convictions was bifurcated. A jury found appellant guilty as charged. Appellant admitted one prior prison term allegation, and two prior convictions within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c), and two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). One prior prison term allegation and one prior conviction allegation within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c) were dismissed.
The case in remanded to the trial court with directions to stay the four year mid term sentence on Count 2. In all other respects, the judgment is affirmed.

The People of the State of California (the People) appeal from the order dismissing the prosecution of respondent Michael Jordan (respondent) pursuant to Penal Code section 1385, which was entered after an order granting respondents motion to suppress evidence made at a special hearing pursuant to Penal Code section 1538.5. (Pen. Code, 1238, subd. (a)(7).) The People contend that [u]nder the totality of circumstances, the officer had a reasonable suspicion to detain . . . defendant. Court conclude that the contention has merit, and Court reverse the trial courts order.

Raul P. Chavez appeals his conviction for sale of a controlled substance, heroin (Health & Saf. Code, 11352, subd. (a)), in case No. BA317105. His appointed counsel filed a brief pursuant to People v.Wende (1979) 25 Cal.3d 436 (Wende). Appellant was notified that he could file his own brief. He has not done so. He did, however, explain on his notice of appeal that he believes his rights were violated at the probation violation hearing of a different case, on which he was sentenced concurrently with case No. BA317105. According to the arrest report, the facts in case No. BA317105 are that appellant sold three balloons of heroin to an undercover police officer. On March 15, 2007, appellant pled guilty in case No. BA317015 to sale of a controlled substance. He agreed to three years of felony probation with 270 days in county jail.
From its examination of the record, Court are satisfied that appellants attorney has fully complied with her responsibilities, and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d at p. 441.)

Sally Ann Vaughn appeals her conviction, by plea of no contest, of one count of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and one felony count of hit and run. (Veh. Code, 20001, subd. (a).) The charges arise from an incident in which appellant intentionally hit a bicyclist with her automobile. While the criminal charges were pending, appellant was twice declared incompetent and transferred to Patton State Hospital for mental health treatment. After her competency was restored the second time, the trial court dismissed the hit and run count on respondent's motion, suspended imposition of sentence, placed appellant on probation and released her from custody subject to various conditions including revocation of her driving privilege. Court have reviewed the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.

After a jury trial, defendant Gene Darnell Waltz was found guilty of 11 counts of a lewd act upon a child under the age of 14 years (Pen. Code, 288, subd. (a)), one count of oral copulation by a person over the age of 21 years with a child under the age of 16 years ( 288a, subd. (b)(2)), one count of sexual penetration of a child under the age of 16 years by a person over the age of 21 years ( 289, subd. (i)), and one count of sodomy of a child under the age of 16 years by a person over the age of 21 years ( 286, subd. (b)(2)). Sentenced to 12 years in state prison, defendant appeals.
Defendant contends that the trial court erred in: (1) instructing that the jury could find him guilty of counts of a lewd act upon a child under the age of 14 years based on any act shown by the evidence upon which they unanimously agreed, (2) instructing on requirements of the defense of duress, (3) denying a posttrial motion for disclosure of records of a psychologist who had treated the victims, and (4) admitting evidence of pornography in a computer defendant owned. He also contends that (5) he was prejudiced by ineffective assistance of counsel in failing to adduce evidence: (a) that he had been molested when he was a child by the brother of the victims, and (b) of statements of the victims to a treating therapist. Lastly, he contends (6) the prosecutor committed prejudicial misconduct in asking were they lying questions to him during cross-examination. Finding no merit in his contentions of error, Court affirm the judgment.

Defendants Lake Shastina Community Services District (the district), Allen Brezinsky, and Stan Beck (collectively defendants) appeal from a judgment in favor of plaintiff Robert Bare on his claim for damages under title 42 United States Code section 1983 (section 1983), as well as from a subsequent award of attorney fees. Court conclude that defendants have failed to carry their burden of showing any insufficiency of the evidence or prejudicial trial court error. Accordingly, Court affirm the judgment and the attorney fee award.

Scott Frank Williams (appellant) appeals his conviction by jury trial of making criminal threats. (Pen. Code, 422.)[1] Appellant admitted two prior strike convictions and two prior prison term allegations. ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b).) Following his conviction, he was sentenced to 27 years to life in state prison. Appellant raises numerous claims of evidentiary, instructional and sentencing error. He also contends the court erroneously recused itself after the verdicts were entered rather than at the start of trial, and erroneously denied his motion for new trial. Court reject appellants contentions and affirm.

Markel Insurance Company (Markel), the insurer of the defendant in a personal injury action, appeals from the dismissal of its suit for indemnity against Kaiser Permanente (Kaiser) following the trial courts determination of a good faith settlement between Kaiser and personal injury plaintiff Rhonda Jones. Appellant contends the trial court erred in finding the settlement to be in good faith. Court affirm.

Appellant Jermaine Givens was convicted of first degree murder with a special circumstance and related charges after he shot two rival drug dealers, killing one and seriously injuring another. He contends: (1) the prosecutor committed prejudicial misconduct during closing argument by stating that appellants mother had not testified on his behalf because she knew he was guilty, and by vouching for the credibility of a police officer witness; (2) defense counsel was ineffective in failing to object to irrelevant and prejudicial testimony about the criminal activity endemic to the area where the shooting occurred; and (3) the imposition of an upper term sentence on one of the counts violated his rights under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court agree with the last contention, but otherwise affirm.