CA Unpub Decisions

On September 3, 2004, appellant, Juan Carlos Diaz, was a passenger in a car that was stopped by a highway patrol officer in Merced County. During the stop, Diaz admitted smoking marijuana in the car a short time earlier. An ensuing search of Diaz uncovered a plastic bag containing a small amount of methamphetamine. Diaz was arrested for transportation of methamphetamine (case No. 29931) and on an outstanding misdemeanor warrant. Further, following independent review of the record Court find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

A modification decision.

Defendant was convicted of possession for sale of methamphetamine and marijuana. He admitted two prior strikes (Pen. Code, 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)), three prior felony convictions (Health & Saf. Code, 11370.2, subd. (a)), and three prior prison terms (Pen. Code, 667.5, subd. (b)). He appeals claiming the court erred by failing to conduct an in camera hearing to determine whether the identity of a confidential informant should have been disclosed. He also asserts he did not receive all the custody credits to which he was entitled, CALJIC No. 2.01 as to circumstantial evidence should have been given, and he had a right to a jury trial on whether the upper term on one count should be imposed. After the original briefs were filed, the United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), which held that imposition of an upper term under Californias sentencing law generally violated a defendants constitutional rights. (Id. at p. [127 S.Ct. 856, 860].) Court allowed the parties to file supplemental briefs on this issue. Defendants prior convictions and parole status at the time he committed the crime were factors that need not have been determined by a jury and support an upper term sentence.
Court modify the abstract of judgment to correctly reflect defendants actual and good conduct credits, but otherwise affirm the judgment.

Defendant appeals from a judgment granting him probation after imposition of sentence was suspended, following his guilty plea to transportation of methamphetamine and possession of that drug for the purpose of sale. (See Health & Saf. Code, 11378, subd. (a), 11379, subd. (a).) On appeal, he contends this appellate court must review the sealed transcripts of the two in camera hearings conducted as part of his motions for discovery, for disclosure of informants and to suppress the evidence seized pursuant to the search warrantpart of which was sealedand determine if the denial of those motions was proper. He also contends his constitutional rights were violated when the trial court barred his counsel from attending the in camera hearings. Court disagree and affirm.

Alleging insufficient evidence, appellant challenges his convictions for receiving stolen property and possessing burglary tools. Court find ample evidence to support the convictions and affirm the judgment.

Court appointed counsel to represent Oscar Abel Mendez on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client, but advised the court no issues were found to argue on his behalf. Mendez was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him. Court have examined the record and found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)
The judgment is affirmed.

Defendant was convicted after a jury trial of having engaged in a crime spree consisting of robbing seven women of their purses at three different business locations. As a result, he was found to be guilty of five counts of robbery and one count of attempted robbery.
His appeal raises two issues: the denial of a live lineup and the imposition of consecutive sentences in the absence of a statement of reasons by the trial court. Court hold that the trial court did not abuse its discretion in denying defendants motion for a lineup. Defendant also waived his right for a statement of reasons by failing to object in the trial court and that the record fails to support a contention that defendants failure to object constituted ineffective assistance of counsel.

While a patient at Hoag Memorial Hospital Presbyterian (Hoag), John Theriault was moved from a gurney to a hospital bed by hospital attendants. At the time, Theriault had a Foley catheter inserted in his urethra, which ran to a collection bag attached to the gurney. Theriault claims that by moving him from the gurney without disconnecting the collection bag, the attendants caused him damage. Theriault sued Hoag for medical negligence, negligence, and medical battery. The trial court granted Hoags motion for summary judgment, and Theriault appealed. Court affirm.

Daniel B. appeals from a judgment that declared him a ward of the court and placed him on probation, after the juvenile court found him guilty of felony gang related vandalism. Daniel argues the evidence is insufficient to show he was the individual who spray painted graffiti on a building. Court disagree and affirm.

A jury convicted appellant Joseph Ramirez of two counts of lewd act on a child by force (Pen. Code, 288 subd. (b), counts one and two); sexual battery by unlawful restraint (Pen. Code, 242/243.4 subd. (a), count five); and sexual penetration by force (Pen. Code, 289, subd. (a)(1), count six). As to counts one, two and six, the jury found true an allegation that appellant committed an offense specified in Penal Code section 667.61, subdivision (c) against more than one victim. (See case number H024606.)
Appellant appealed his conviction and his initial sentence of 45 years to life in state prison. In an unpublished opinion (H024606 filed January 6, 2004), Court reversed appellant's conviction on count six, reduced the conviction on count five to a misdemeanor and remanded the case to the trial court for resentencing.

Defendant appeals from a judgment of conviction entered after a jury found him guilty of 14 felony counts of committing a lewd act upon his stepdaughter M., a child under the age of 14 (Pen. Code, 288, subd. (a)), and one count of attempting a lewd act (Pen. Code, 664, 288, subd. (a)). Defendant was sentenced to a total term of 33 years in state prison.
Defendant contends that the trial court erred in allowing evidence of defendants uncharged child molestations to be admitted under Evidence Code section 1108 for the purpose of demonstrating defendants propensity to commit such crimes. For reasons that Court explain, Court conclude that the trial court did not abuse its discretion and therefore Court affirm the judgment.

Appellant appeals from an order confirming an arbitration award and entering judgment in favor of Exatron, Inc. He argues that the award should be vacated for two reasons: 1) because the arbitrator exceeded his authority by deciding a disputed issue that was expressly excluded from arbitration by a provision contained in the parties written agreement; and 2) because his rights were prejudiced by the arbitrators refusal to hear evidence material to the controversy. (Code Civ. Proc., 1286.2, subd. (a)(4) & (5).) Court reject these arguments and accordingly affirm the judgment.

Defendant comes before us a second time to appeal his case. In the first appeal, defendant asserted that he requested a Marsden motion at the sentencing hearing, and the trial court failed to hold such hearing or even address defendants request. Court reviewed the transcript of the sentencing hearing, and deemed it to be ambiguous whether defendant in fact made such request. As a result, we remanded the matter to the trial court for it to make such determination. Our disposition provided that in the event defendant did make a request for a Marsden hearing, the trial court needed to hold such hearing, and if required, appoint a new attorney for defendant. However, if the court determined that such request was not made, the original judgment was to be reinstated. (People v. Heard, (Feb. 14, 2006, H027023) [nonpub. opn.].)
Pursuant to our opinion in the original appeal, the trial court held a hearing to determine whether defendant made a request for a Marsden hearing at his sentencing. Although defendants original attorney and the prosecutor were present, defendant was not. The trial court reviewed the transcript and determined defendant had not requested the Marsden hearing, and reinstated the judgment.
Defendant now appeals a second time, asserting the failure to ensure his presence at the hearing to determine whether he requested a Marsden was a violation of his federal and state constitutional rights to be present at a critical stage.

Petitioners appeal from the superior courts denial of their petition for a peremptory writ of mandate. Petitioners sought by their petition to reverse the City of Concords (City) approval of real party in interest Harvest Churchs (Harvest) proposed church use of a second-floor space owned by Harvest and located at the Park & Shop commercial center (shopping center). Court affirm the judgment.