CA Unpub Decisions

This People's appeal is taken from an order dismissing charges against defendant Michael Grecu. The trial court concluded that defendant's "due process rights to a speedy trial" had been violated based on this court's decision in People v. Martinez (1995) 37 Cal.App.4th 1589. For reasons that follow, Court disagree with the trial court and reverse the trial court's order.

This matter has been remanded by the Supreme Court (S136922) with directions to vacate our previous decision (The Limited Stores, Inc. v. Franchise Tax Board (July 28, 2005, A102915) [nonpub. opn.]) and reconsider the cause in light of Microsoft Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750 (Microsoft) and General Motors Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 773. In our earlier decision we affirmed a summary judgment granted in favor of the Franchise Tax Board (FTB). Court concluded that the full price of securities held to maturity and redeemed were not properly treated as gross receipts by the taxpayer under the Uniform Division of Income for Tax Purposes Act (UDITPA) (Rev. & Tax. Code, 25120 et seq.). Microsoft, however, reached a contrary result. Court vacate our previous decision, and affirm the judgment of the trial court, albeit on a different ground.

Hubert Lee Fontenot, Jr. (Fontenot) appeals from his conviction of attempted voluntary manslaughter and assault with a firearm. He argues that the court erred in imposing the aggravated term for the handgun use enhancements, based in part on the United States Supreme Courts holding in Cunningham v. California. Court agree and remand the case for resentencing.

Attorney David R. Medlin appeals from an order imposing $15,000 sanctions payable to Wymac Capital, Inc. (Wymac) based on the trial courts conclusion that Medlins failure to recognize a disqualifying conflict of interest delayed a trial and would cause Wymac additional expense. Although Medlin challenges the order on several procedural grounds that may well have merit, Court believe the appeal is most simply resolved on the ground that the trial court erred in disqualifying Medlin, thus eliminating the predicate on which sanctions were imposed.

A modification decision.

A modification decision.

Mary Ellen Schooler appeals from judgment entered following an order revoking probation. Previously she pled no contest to corporal injury to a spouse (Pen. Code, 273.5, subd. (a)).
During the pendency of the matter and pursuant to Penal Code section 1368, defense counsel declared a doubt as to the mental competence of appellant, and the matter was set for a jury trial on the issue of competence.
Court have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against her in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112.)
The judgment is affirmed.

Defendant was charged with sale of cocaine base, possession of cocaine base for sale, and three sentence enhancements based on prior convictions. At trial, the court admitted evidence of defendants prior misconduct under Evidence Code section 1101, subdivision (b) to prove his intent and knowledge. In a unitary trial, the jury found defendant guilty of possession of cocaine base for sale and found true the prior conviction allegations. On appeal, defendant contends the courts admission of evidence of his prior misconduct was an abuse of discretion and a violation of his due process rights and the trial court erred by instructing the jury on joint possession and aiding and abetting during the prosecutions case. Finding no prejudicial error or abuse of discretion, Court affirm the judgment.

After his motion to suppress evidence was denied, defendant Oscar Meneses Rosas pled no contest to residential burglary and admitted he used a firearm during the offense. The court sentenced him to eight years in prison. On appeal, defendant contends the trial court erred in denying his suppression motion. Disagreeing with defendant, Court affirm the judgment.

Plaintiff appeals from entry of summary judgment in favor of defendant Spring Hill Manor Convalescent Hospital. Plaintiff sued Spring Hill for professional negligence in connection with the death of his mother, Jessie Wilson. Spring Hills motion for summary judgment contended Plaintiff could not establish an element of his cause of action -- breach of the applicable standard of care.
In support of its motion, Spring Hill submitted the declaration of an expert whose opinion was that Spring Hill did not breach its duty of care in providing convalescent services to Jessie. William did not provide an expert declaration in opposition. Given this fact, Court agree with the trial court that Plaintiff cannot establish a claim for professional negligence as a matter of law.
In his opposition to the motion, Plaintiff raised a claim of negligence per se based on alleged statutory violations by Spring Hill. Since Plaintiff failed to include this claim in his pleadings, Court may not consider it at this time. Accordingly, Court affirm the judgment.

After he entered a negotiated plea of guilty to a charge he sold or transported methamphetamine, defendant received a three year prison sentence.
Defendants sole contention on appeal is that the trial court erred in failing to recite in detail all of the fines, fees, and penalties imposed.
The judgment is affirmed, except that the matter is remanded to the trial court with directions to separately state all fines, fees, and penalties imposed, with the appropriate statutory basis; amend the abstract of judgment accordingly.

Defendant appeals his convictions of possessing marijuana for sale (Health & Saf. Code, 11359), cultivating marijuana ( 11358) and possessing more than 28.5 grams of marijuana ( 11357, subd. (c)). The trial court suspended imposition of sentence and granted probation on the felony counts of possessing marijuana for sale and cultivating marijuana. On the misdemeanor count of possessing more than 28.5 grams of marijuana, the court denied probation and imposed a sentence of 49 days, the amount of time Childers had already served. On appeal, Defendant contends there is insufficient evidence to support a finding his cultivation and possession of marijuana exceeded his current medical needs, the prosecutor's theory of conviction was both legally and factually inadequate, the court erred in failing to instruct the jury on principles relating to his defense, and the court erred in imposing rather than staying the term for possessing more than 28.5 grams of marijuana. Court affirm the judgment.

Defendant was arrested and his van was impounded. Upon his release from jail Fugate broke into the impound yard where his van was held and took the van. While in the impound yard Fugate broke into three other vehicles in the yard and took a number of valuables from those vehicles. A few days later sheriff's deputies found Fugate and his van. The items taken from the other vehicles in the impound yard were in Fugate's van. Fugate was convicted of two counts of grand theft, one count of petty theft and one count of trespass with the intent to interfere with a lawful business. The trial court sentenced him to two 6-year sentences on the grand theft charges and two 180-day sentences on the petty theft and trespass charges. The court ordered that all sentences run concurrently.
On appeal Court find with respect to both grand theft convictions there was substantial evidence the value of the items appellant stole was in excess of $400. Court also find there was substantial evidence appellant broke into the impound yard with the intent to interfere with the business of the towing company. Because each theft conviction was related to a separate vehicle from which appellant took valuables, the trial court could impose sentence on each of the three theft convictions. Finally, in light of appellant's concession he suffered eight prior convictions for which probation was not available, the trial court did not infringe upon his Sixth Amendment rights in imposing the upper term on the grand theft convictions.

Defendant conspired with her boyfriend, defendant Terry Bell, and with their mutual acquaintance, defendant Christopher Long, to kill DeMolas mother by beating her to death. After the commission of the crime, however, as Defendant was driving away, she got into an accident. She left the accident scene (evidently so she could drop off her coconspirators) but then came back and told the police that she had caused the accident because her house was being robbed. Police went to her house, where they found the victim on the floor, unconscious in a pool of blood, with a broken nose, a broken jaw, broken ribs, and a skull fracture that ultimately proved fatal. A jury found Defendant and Bell guilty of first degree murder. (Pen. Code, 187, subd. (a), 189.) It also found true both a lying in wait special circumstance and a torture murder special circumstance. (Pen. Code, 190.2, subd. (a)(15), (18).) However, it found an alleged financial-gain special circumstance not true. (Pen. Code, 190.2, subd. (a)(1).) A separate jury found Long guilty of first degree murder but rejected all three alleged special circumstances. DeMola and Bell were sentenced to life without parole. Long was sentenced to 25 years to life.
The appellate issues raised are many, but they can be grouped into several broad categories. A number of them involve the fact that at least according to Defendant this case was initially filed in juvenile court. Others involve the admission of hearsay statements by Bell and by Long, not only against them, but also against their codefendants. Several others involve asserted jury misconduct. In addition, there are assorted evidentiary, instructional, and sentencing issues. As the People concede, the trial court erred by imposing a parole revocation restitution fine (Pen. Code, 1202.45) on Defendant and Bell. Court modify the judgments against them accordingly. Otherwise, Court find no prejudicial error. Hence, Court affirm the judgments as modified.