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Name: People v. Delgado
Case #: S141282
Court: CA Supreme Court
District CalSup
Opinion Date: 05/29/2008

In determining whether a prior conviction was for a serious felony, where the prior conviction was under a statute that described conduct that could constitute a non-serious felony or a serious felony, the court can consider language appearing in the record of conviction to determine whether the conviction was for a serious felony. Appellant was charged with a prior felony conviction for Penal Code section 245, subdivsion (a) as a "strike" and serious felony. At the court trial, the prosecution produced an abstract of judgment that specified by handwritten notations, "245(A)(1)" and "Asslt w Dwpn." Appellant presented…

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Name: People v. Golde
Case #: C053632
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/22/2008

Substantial evidence supported appellant's conviction for violation of Penal Code section 245, subdivision (a)(1). Golde was convicted of multiple crimes against the victim, his girlfriend, including assault by means likely to produce g.b.i. for attempting to hit her with his car. On appeal, he argued that the evidence was insufficient to support a conviction for felony assault because no reasonable juror could conclude under the facts that he intended for the vehicle to strike the victim. The appellate court rejected the argument. Three witnesses testified that they saw the car accelerating towards the victim,…

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Name: People v. Semien
Case #: C053802
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 04/30/2008

The prosecutor did not violate appellant's constitutional rights by excusing a black juror whose wife worked in the county welfare department. During appellant's trial for assault on a police officer, the prosecutor used a peremptory challenge to excuse an African American pastor who dealt with homeless people and whose wife worked in the county welfare department. The pastor was the sole African American among the prospective jurors. The prosecutor explained her reasoning by stating that she felt that the pastor would take into consideration his sympathy for a defendant. The trial court denied appellant's Batson/Wheeler

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Name: People v. Abercrombie
Case #: C051865
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/24/2008

Because parole status is a recidivism factor arising from a prior conviction, a defendant has no Sixth Amendment right to determination of parole status when it is used to enhance a sentence. Appellant was convicted of several counts of molestation and sentenced to an aggregate sentence comprised of the upper term and consecutive sentences, with the court justifying the upper term on the basis that appellant was on parole at the time of the offenses. The appellate court affirmed, finding that parole status was a recidivism factor because it relates to a conviction, can be established by a…

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Name: People v. McQueen
Case #: A114767
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 02/15/2008

Sentence imposed under habitual offender law was properly stayed instead of dismissed where appellant was also sentenced under One Strike law. Appellant was convicted of multiple sex offenses against two minors. On ten counts of conviction, the trial court sentenced him to consecutive sentences of 25 years to life, pursuant to section 667.61, subdivision (a)(One Strike law), tripled to 75 years to life pursuant to section 667, subdivision (e)(2)(i) (Three Strikes law). On the same counts, the court also sentenced appellant under the habitual sex offender law (sec. 667.71, subd. (b)) to 25 years to life, tripled under the Three…

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Name: People v. Nguyen
Case #: H028798
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 06/29/2007
Subsequent History: 10/10/07 rev. granted: S154847

On rehearing, the appellate court disagreed with other districts and held that a juvenile adjudication is not a prior conviction within the meaning of Apprendi (Apprendi v. New Jersey (2000) 530 U.S. 466) because the juvenile offender does not have the right to a jury trial. Accordingly, a juvenile adjudication cannot be used per the Three Strikes law to impose on an adult a sentence in excess of the maximum sentence that could have been imposed on the basis of a trial or a defendant's admission in adult court. This is so even if appellant had admitted the…

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Name: In re Large
Case #: S127754
Court: CA Supreme Court
District CalSup
Opinion Date: 06/28/2007

Discretion implies, in some cases, that a legal decision may properly go either way. Appellant was convicted of shoplifting an $18 fanny pack from J.C. Penney's department store and then identifying himself as his brother. Two prior "strikes" and some prior prison term allegations were found to be true. At the pre-Romero sentencing hearing, the judge imposed the 25-year-to life sentence, while lamenting on the draconian nature of the Three Strikes scheme. While appellant's appeal was pending, Romero was decided. The Court of Appeal rejected appellant's claim that the judge did not realize that he had…

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Name: People v. Cole
Case #: F050978
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 06/19/2007

A conviction for violation of section 288, subdivision (a) in adult court by a 16-year-old minor found unfit for juvenile court constitutes a "strike" offense. In this case the appellate court rejected appellant's contention that the trial court abused its discretion in denying a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497). Appellant contended that the Legislature did not intend to treat nonforcible sex between minors as a "strike." The appellate court observed that separate treatment of the 16-year-old convicted in adult court from the juvenile handled in juvenile court for the same offense…

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Name: People v. Thoma
Case #: B170355
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/15/2007

There was insufficient evidence that a prior conviction was a "strike" where the trial court relied upon a defendant's admission made after acceptance of the guilty plea. Appellant was sentenced as a "two striker" following his guilty plea to possession of methamphetamine. On appeal, he contended that his 1995 prior conviction for causing bodily injury while driving under the influence did not constitute a strike because the record did not show that he inflicted great bodily injury on the victim, as the evidence relied upon was inadmissible hearsay evidence. Originally, the appellate court affirmed, concluding that appellant…

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Name: People v. Towers
Case #: B188368
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 04/17/2007

A conviction for oral copulation by threatening retaliation is not a "strike." Appellant was convicted of first degree burglary and two prior strikes, for a prior 1984 Tennessee second degree burglary and a 1989 conviction for oral copulation (former section 288a, subdivision (c).) Appellant contended that there was insufficient evidence to find that either conviction qualified as a serious or violent felony. He contended that violating section 288a by threatening retaliation under subdivision (c)(3) is not a serious felony, and because the record showed nothing about the factual nature of the conviction, it must be presumed that…

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