CA Unpub Decisions

Rick Abernathy appeals the judgment entered after he pleaded no contest to selling cocaine (Health & Saf. Code, 11352, subd. (a)) and possession of cocaine for sale (Health & Saf. Code, 11351). He admitted that he had a prior strike conviction (Pen. Code[1], 667, subds. (b)-(i), 1170.12), and that he committed the possession offense while free on bail ( 12022.1). The trial court sentenced him to 12 years in state prison, and ordered him to pay a $400 restitution fine. ( 1202.4, subd. (b).) The court also imposed but suspended a parole revocation restitution fine in the same amount. ( 1202.45.)

Appellate counsel filed a brief contending that the restitution fines were imposed in violation of his plea bargain, and must therefore be reduced to the statutory minimum of $200. Court subsequently allowed Abernathy to file a supplemental letter brief in which he asserts (1) that his plea was not knowing, intelligent, and voluntary; (2) that his strike prior was not properly considered; and (3) that his trial and appellate attorneys provided ineffective assistance of counsel. Court affirm.

A jury found defendant and appellant Isaiah Barrett guilty of making criminal threats and resisting an executive officer. He makes two contentions on appeal: First, there is insufficient evidence to support his conviction for making criminal threats. Second, the trial court erred when it failed to instruct sua sponte on the lesser included offense of attempted criminal threats. Court disagree with these contentions, and Court therefore affirm the judgment.

Appellant Claudio Funes, also known as Claudio Gunes, appeals from the judgment entered following a jury trial that resulted in his conviction of assault by means of force likely to produce great bodily injury. (Pen. Code, 245, subd. (a)(1).) He was sentenced to the midterm of three years in state prison.
Court have examined the entire record and are satisfied that appellants attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.

Jose P. brings this petition for extraordinary writ to challenge the jurisdictional and dispositional orders of the juvenile court that sustained a petition (Welf. & Inst. Code, 300), and denied Jose reunification services. ( 361.5.) Court deny the petition.

defendant filed a cross-complaint against the opposing attorney. In response, the attorney filed an anti SLAPP (Strategic Lawsuit Against Public Participation) motion. (See Code Civ. Proc., 425.16.) The trial court denied the motion, ruling that the attorney failed to demonstrate that the attorneys actions were protected by the anti-SLAPP statute. Court conclude that the trial court erred because (1) the anti-SLAPP statute protects an attorneys right to petition and (2) all other arguments against granting the anti SLAPP motion are without merit. Court therefore reverse.

After an undercover police drug-buy operation on May 18, 2005, defendant Kenneth Lamar Evans was charged with one count of selling cocaine base. As a result of a drug investigation on July 12, 2005, at an apartment complex, defendant was charged with one count of possession of cocaine base for the purpose of sale. The counts were tried together and a jury found defendant guilty on both. The trial court sentenced him to eight years four months of imprisonment.
On appeal, defendant contends that (1) the trial court erred in permitting the admission of evidence of a prior arrest for sale of drugs occurring on January 28, 2004; (2) the trial court abused its discretion in denying his motion to sever the counts so they could be tried separately; and (3) there was insufficient evidence to support the conviction for possession of cocaine for the purpose of sale.
Court reject each of defendants contentions. First, evidence of defendants January 2004 arrest for sale of cocaine was admissible to show a plan or design common to defendants sale of cocaine base in May 2005. Second, defendant failed to show that consolidation of the counts involving separate incidents was prejudicial. And third, every element of possession of cocaine for the purpose of sale was supported by substantial evidence.

Defendant entered a negotiated plea of no contest to stalking (Pen. Code, 646.9, subd. (a); unspecified section references that follow are to the Penal Code), dissuading a witness ( 136.1, subd. (b)(1)) and battery against a person with whom defendant had a dating relationship ( 243, subd. (e)(1)). He was sentenced pursuant to the plea to an aggregate state prison term of three years four months. Defendant appeals, contending his conviction must be reversed because he was unrepresented at a critical stage of the proceeding in violation of the Sixth Amendment to the United States Constitution. Court find no constitutional violation and affirm the judgment.

A jury convicted Edward Booth of first degree murder (Pen. Code,[1] 187, subd. (a), 189), two counts of attempted murder ( 187, subd. (a), 664), two counts of assault with a semiautomatic firearm ( 245, subd. (b)), and two counts of criminal threats ( 422). The trial court sentenced Booth to 122 years to life in prison.
Booth appeals, contending that his sentence is invalid because: (i) the sentence with respect to certain of the counts (counts 4 and 7) was computed in violation of the applicable statutes; and (ii) the sentence was enhanced by the trial judge based on factual findings made by the court and not the jury in violation of his constitutional rights as defined in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). As Booth is correct with respect to both of his contentions, Court reverse the judgment and remand for resentencing on the affected counts.

Defendant Robert N. Williams challenges the court's imposition of a negotiated aggregate prison sentence of five years four months following his guilty plea in the present case and the revocation of his probation in a prior case. In 2003, after Williams pleaded guilty in San Diego County Superior Court case No. SCD169274 (the drug case) to one felony count of selling a controlled substance, and after he admitted he had suffered a prior Three Strikes law conviction (or strike), the court sentenced him to five years in prison, but suspended execution of that sentence and placed him on formal probation. In mid-2005, during his probation, Williams was charged in the present caseSan Diego County Superior Court case No. SCD192215 (the attempted pimping case with two new offenses: pimping and soliciting an act of prostitution. The court revoked Williams's probation following an evidentiary hearing. In September of that year, the court lifted the stay of execution of the five year prison sentence imposed in the drug case, sentenced Williams to four years in state prison and remanded him to the custody of the sheriff pending conclusion of this attempted pimping case. Williams appealed the judgment (D047544). Court conclude that (1) the court had jurisdiction to recalculate Williams's sentence in the drug case following revocation of his probation, (2) the section 1170(d) 120 day time limit is inapplicable, and (3) Williams's claim that the court applied the wrong sentencing rules must be dismissed because his claim challenges the negotiated sentencing terms of his plea agreement in the attempted pimping case and he failed to obtain the requisite certificate of probable cause in the trial court.

A jury convicted Miguel Angel Thompson of dissuading a witness by force or threat (Pen. Code,[1] 136.1, subd. (c)(1)) and Thomson admitted the truth of allegations he had suffered three prior prison terms ( 667.5, subd. (b), 668), and two prior convictions qualifying as strikes under the three strikes law ( 667, subds. (b)-(i); 668; 1170.12) and constituting serious felonies ( 667, subd. (a)(1); 668; 1192.7, subd. (c)). The court sentenced him to an indeterminate term of 25 years to life for the dissuading conviction plus 12 years, consisting of consecutive 5-year terms for the prior serious felony convictions and two years for two of Thompson's prior prison terms. On appeal, Thompson contends: (1) the court prejudicially erred by denying his motion to exclude statements he made to a detentions investigation unit detective while he was in custody, assertedly in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) his 25-year-to-life sentence violates the state and federal constitutional proscriptions against cruel and unusual punishment; and (3) the trial court erred by staying rather than striking the prior prison term enhancement for one of his three prison terms.
Court agree the trial court erred by staying the one-year sentence for one of Thompson's prison priors rather than imposing the sentence or exercising its discretion to strike it, but reject Thompson's remaining contentions. Accordingly, Court reverse that portion of the trial court's judgment staying the one year enhancement for Thompson's prior prison conviction (for case No. CR1932596) and remand the matter with directions set forth below.

David Alexander Pelis was sentenced to state prison for three years, eight months after being convicted of resisting an executive officer (count 2; Pen. Code,[1] 69) and true findings he had a prison prior ( 667.5, subd. (b)), a serious felony prior ( 667, subd. (a)(1)), and a strike prior ( 667, subds. (b)-(i)). Pelis contends the trial court erroneously relied on evidence relating to count 1, making a criminal threat ( 422) for which he was acquitted, when considering Pelis's motions and determining the sentence for his conviction on count 2, and reliance on these facts violated Cunningham v. California (2007) 549 U.S. , 127 S.Ct. 856 (Cunningham). Court affirm the judgment.

Defendant and appellant William Israel McMillan appeals after he was convicted of assault upon Armond Hagan. Defendant argues that the trial court erred in excluding evidence that a third party may have committed the crime. He also contends that he was improperly sentenced to the aggravated term in violation of his right to a trial by jury under Cunningham v. California (2006) 546 U.S. 1169 [126 S.Ct. 1329, 164 L.Ed.2d 47] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]. Court affirm.

Defendant pled no contest to the crime of unlawful driving or taking of a vehicle. (Veh. Code, 10851, subd. (a).) Defendant was granted three years probation, with the condition she serve 180 days in custody. Defendant essentially contends that probation term No. 18, which requires her to cooperate during field interrogations, infringes on her Fifth Amendment privilege against self-incrimination and, therefore, must be narrowly drawn. Defendant requests the probation condition be modified to include a provision indicating that she retains her Fifth Amendment privilege. In addition, defendant essentially contends that probation term No. 18 is invalid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded on another ground by Proposition 8 as stated by People v. Wheeler (1992) 4 Cal.4th 284, 290-295, because it is not related to the crime for which she was convicted or to future criminality.

This is an appeal by plaintiff and appellant San Bernardino Public Employees Association (hereafter SBPEA) from the judgment of dismissal entered against it and in favor of defendants and respondents, San Bernardino Superior Court and Tressa Sloan Kentner, in her official capacity as Court Executive Officer (hereafter defendants), after the trial court sustained their demurrer, without leave to amend, to SBPEAs petition for writ of mandate. SBPEA and two individual court reporters (referred to collectively as plaintiffs)[1]filed the petition in order to obtain a declaration that defendants were not properly compensating court reporters for the preparation of certain transcripts. Plaintiffs also sought a writ of mandate directing defendants to cease and desist from failing to properly compensate court reporters. The petition alleged, in pertinent part, that SBPEA is the authorized collective bargaining representative for court reporters employed by San Bernardino Superior Court and in that capacity has standing to sue on their behalf to obtain compensation under Government Code section 69950 for the preparation of certified transcripts.For reasons we now explain, Court conclude that the associational standing requirements are not met in this case. Therefore, Court affirm the judgment.