CA Unpub Decisions

Appellant Kurt Scanlin appeals from the trial courts denial of his petition under Government Code section 946.6[1] to relieve him of the statutory requirement of presenting a timely, written claim under section 945.4 before proceeding in tort against the State of California. Scanlins claim against the state arose out of the execution of a search warrant at his residence and business by employees of the State Board of Equalization (BOE) and the California Highway Patrol (CHP). After denial of Scanlins written claim presented to Santa Clara Countythe wrong governmental entitythe California Victim Compensation and Government Claims Board (the Board) rejected his application to file a late claim against the state, acting through the BOE and CHP, under section 911.6. The trial court then denied Scanlins petition under 946.6, concluding that he had not demonstrated that his failure to have timely filed a government claim against the state was the result of mistake, inadvertence, surprise, or excusable neglect. Court conclude that Scanlin has not demonstrated that the court below abused its discretion and Court accordingly affirm the trial courts order.

This dependency began in 1998 with the removal of then seven-year-old K. and her three siblings from her mothers care. Jurisdiction was sustained as to all four children. The youngest child of the four was adopted out in 1999. K.s two other siblings were returned home several years later with a plan of family maintenance. K. began living with foster parents in August 1998, and they became her court-appointed legal guardians in January 2003. The guardians moved with K. to New York in June 2003. At that time the court made visitation orders, which it continued in December 2003, June 2004, and March 2006. The mother appealed from all four of these orders, which we affirmed on appeal. (In re K.B. (Aug. 2, 2004, H026294) [nonpub. opn.]; In re K.B. (Nov. 17, 2004, H027053) [nonpub. opn.]; In re K.B. (Feb. 18, 2005, H027605) [nonpub. opn.]; In re K.B. (Nov. 17, 2006, H030165) [nonpub. opn.].)
The present appeal is from an order made on September 25, 2006, continuing the permanent plan of guardianship for K. and continuing the orders previously made for visitation, while adding an order that K. may initiate telephone calls with her two siblings. Here mother continues to contend that the court abused its discretion in continuing the visitation order. Court disagree, and therefore affirm.

Defendant Patrick Shannon Ritchie timely appeals from an October 6, 2006, judgment sentencing him to 10 years and four months in prison pursuant to a plea agreement regarding crimes charged in three separate cases. In calculating defendants prison term, the trial court selected the upper term of three years for defendants admission to petty theft with a prior theft conviction (Pen. Code, 666). Defendant argues on appeal that under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), the trial court violated his federal constitutional rights in selecting the upper term because it relied on facts that were neither found by a jury beyond a reasonable doubt nor admitted by defendant. Court conclude this contention is without merit and thus affirm.

Pursuant to a negotiated disposition, appellant Ramon Roberto Klein entered a plea of guilty to sexual battery (Pen. Code,[1] 243.4, subd. (a)) for an agreed-to term of four years in state prison. All remaining charges, a prior strike allegation ( 1170.12), a prior prison term ( 667.5, subd. (b)), and a probation ineligibility provision ( 1203, subd. (e)(4)) were all stricken. Appellant was sentenced in accordance with the negotiated disposition.
Appellant has filed a supplemental appellants opening brief in pro. per. He contends that he is innocent of the crime to which he pled; that his plea was involuntary; and that his trial counsel was ineffective. Court have considered these contentions and conclude that they are belied by the record and lack merit. Judgment affirmed.

Following a contested hearing in which defendant Christopher Canfield was charged with violating the terms of his probation, the trial court revoked his probation and ordered the execution of the previously suspended sentence of three years in state prison. The opening brief filed by defendants appellate counsel raises no issues and asks this court for an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. Defendant has been afforded an opportunity to file a supplemental brief and has not done so. After reviewing the record, Court find no meritorious issues to be briefed or argued and affirm.

Wiley Gill (Gill) was convicted of felony possession of cocaine and misdemeanor possession of paraphernalia used for smoking a controlled substance. Gill appealed, contending: he should not have received two separate enhancements for prior prison terms that were served concurrently; and his right to a jury trial was violated when Judge Francis J. Hourigan III made findings of fact to impose the upper term on the conviction for felony possession of cocaine. In a supplemental brief, Gill argued that Judge John Vernon Meigs erred when he terminated Gills self-representation. In the Peoples brief, the People urged us to affirm the judgment but to modify it to add another year to Gills sentence. According to the People, Gills sentence was illegal because Judge Hourigan neglected to impose a one-year enhancement for Gills prior prison term in case No. A953996. Court filed our original opinion in this matter on July 19, 2006. The United States Supreme Court granted Gills petition for writ of certiorari and, on March 19, 2007, it vacated the judgment and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). We requested supplemental briefing. On October 3, 2007, the People filed a supplemental brief to discuss Cunningham, People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Gill informed us that he would not file a responsive brief. Court affirm the judgment.

A jury convicted Travell Addison (defendant) of first degree murder (Pen. Code, 187) (count 1) and burglary ( 459) (count 2). With respect to count 1, the jury found true the special-circumstance allegation that the murder was committed while defendant was engaged in the commission of a burglary within the meaning of section 190.2, subdivision (a)(17). With respect to both counts the jury found true the allegations that a principal was armed with a handgun in the commission of the offense ( 12022, subd. (a)(1)), that a principal personally and intentionally discharged a handgun proximately causing great bodily injury and death ( 12022.53, subds. (d) & (e)(1)), and that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members ( 186.22, subd. (b)(1)).
The trial court sentenced defendant to life without the possibility of parole (LWOP) for the murder in count 1 and stayed the burglary sentence in count 2 pursuant to section 654. The trial court also imposed a consecutive sentence of 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1). The court stayed the firearm-use enhancement pursuant to section 12022, subdivision (a)(1) and the gang enhancement.
Defendant appeals on the grounds that: (1) insufficient evidence supported his LWOP sentence under the felony-murder special circumstance, since the jury failed to find that defendant, as an aider and abettor, acted with an intent to kill; (2) insufficient evidence supported the jurys finding under section 186.22, subdivision (b)(1) that defendant committed the charged offenses with the specific intent to promote, further, or assist the Six Deuce Brims street gang; (3) the trial court erred by staying rather than striking the lesser firearm use enhancement and the gang enhancement; and (4) the trial courts imposition of a court security fee under section 1465.8 violated the constitutional prohibition against ex post facto laws and the statutory prohibition against retroactive application of criminal statutes. The section 12022, subdivision (a) enhancement is stricken in count 1 and the gang enhancement pursuant to section 186.22, subdivision (b)(1) is stricken in count 1.

In this action to quiet title to real property, the evidence was insufficient to support the trial courts determination that the grantor delivered a deed to the grantee with the present intent to transfer the property. The courts judgment quieting title in the grantee must therefore be reversed.

Defendant appeals her conviction by a jury of three counts of felony child abuse (Pen. Code, sec. 273a, subd. (a)) and three counts of hit-and-run driving (Veh. Code, sec. 20002, subd. (a)). She contends the trial court prejudicially erred in instructing the jury on reasonable doubt, and in failing to sua sponte instruct on the defense of necessity. Court affirm.

Plaintiffs Rebecca A. Rickley and Natasha Roit own a home in Malibu. Defendant Marvin Goodfriend owns the house on one side of plaintiffs property, and defendant Shariar Yazdani owns the property on the other side. Plaintiffs appeal from the portion of the order denying their motion for attorney fees from Yazdani pursuant to Code of Civil Procedure section 1021.5 and the portion of the order granting Goodfriends motion to strike from plaintiffs costs memorandum the expert witness fees they sought under section 998. Plaintiffs contend the court erred in denying their requests for attorney fees and expert witness fees. Court affirm the portion of the order denying attoneys fees, but reverse and remand the portion of the order striking the expert witness fees.

Bismarck Ceja appeals from an order after judgment denying the appointment of counsel pursuant to Penal Code section 1405.[1] Previously appellant was convicted by jury of four counts of kidnapping to commit robbery (Pen. Code, 209, subd. (b)(1)), three counts of forcible rape (Pen. Code, 261, subd. (a)(2)), and one count of penetration by a foreign object (Pen. Code, 289, subd. (a)(1)). Appellant was sentenced to 150 years to life plus four consecutive life terms in state prison. The convictions related to four separate sexual assaults against four female victims and his convictions and sentence were affirmed by this court in an opinion filed March 7, 2003 in case number B157257. The order is affirmed.

Plaintiff and appellant David Luce (Luce) challenges a trial court order granting summary judgment to defendant and respondent City of Pasadena (the City). Court agree with the trial court that Luce failed to present a triable issue of fact. Accordingly, Court affirm.

Bismarck Ceja appeals from an order after judgment denying the appointment of counsel pursuant to Penal Code section 1405.[1] Previously appellant was convicted by jury of four counts of kidnapping to commit robbery (Pen. Code, 209, subd. (b)(1)), three counts of forcible rape (Pen. Code, 261, subd. (a)(2)), and one count of penetration by a foreign object (Pen. Code, 289, subd. (a)(1)). Appellant was sentenced to 150 years to life plus four consecutive life terms in state prison. The convictions related to four separate sexual assaults against four female victims and his convictions and sentence were affirmed by this court in an opinion filed March 7, 2003 in case number B157257. Relative to appellants claim pursuant to Penal Code section 1405, the record establishes that on October 14, 2003, Gigi Gordon and the Post Conviction Assistance Center were appointed to determine whether a motion and application for post conviction DNA testing should be filed and to file such motions if counsel deemed them to be meritorious. The order is affirmed.

The People of the State of California (the People) appeal the trial courts order granting Andrew Christopher Young (defendant) a new trial after a jury convicted him of attempted murder without premeditation or deliberation (Pen. Code, 664/187) (count 1)[1]; aggravated mayhem ( 205) (count 2); torture ( 206) (count 3); second degree robbery ( 211) (count 4); carjacking ( 215, subd. (a)) (count 5); kidnapping for carjacking ( 209.5, subd. (a)) (count 6); kidnapping ( 207, subd. (a)) (count 7); and false imprisonment by violence ( 236) (count 8).
The People argue in their opening brief that the trial courts order must be reversed for the following reasons: (1) the fact that a co-perpetrator is to be retried cannot serve as a basis for granting a new trial; (2) the granting of a new trial without a finding of prejudicial error is an abuse of discretion; (3) a jurors misconduct in visiting the crime scene was not prejudicial to defendant and a new trial is therefore unwarranted. In their reply brief, the People argue for the first time that the statements attributed to the errant juror constitute inadmissible hearsay. The order appealed from is affirmed.