PROCEDURAL HISTORY

            This matter comes before us by order of our Supreme Court, directing us to issue an order to show cause limited to the issue of whether the registration required by Penal Code section 290[1] constitutes cruel and unusual punishment under either the Eighth Amendment of the United States Constitution or article I, section 17 of the California Constitution.  Section 290 requires convicted sex offenders to register every California residence they have with the local police chief or sheriff.  Registration is required annually, even if there is no change in residence, and registration is required for life.  If, however, a person required to register for a violation of section 311.11, subdivision (a), receives a certificate of rehabilitation, the registration requirement can be eliminated.  (See §§ 290.5, 1203.4 & 4852.01 through 4852.17.)

            Petitioner was convicted of a misdemeanor violation of section 311.11, subdivision (a), possession of child pornography.  Section 311.11, subdivision (a), in pertinent part, makes it unlawful for an individual to knowingly possess various materials knowing that it “depicts a person under the age of 18 years personally engaging in or simulating sexual conduct . . . .”  A first-time offender under this section is punishable by up to one year imprisonment in the county jail and/or a fine of $2,500.  Subsequent violations of this section are felonies, punishable by up to six years in state prison.  Petitioner was placed on probation for a period of 36 months on various terms and

conditions, including a fine of $1,250, the requirement that he complete a therapy program aimed at sexual deviancy and especially at pedophilia, and 60 days in the county jail to be stayed permanently if he completed the therapy.  Petitioner was also required to register as a sex offender pursuant to section 290.

            Petitioner objected to the registration requirement, contending it constituted cruel and unusual punishment.  The trial court refused to delete the registration requirement of section 290, stating:  “[a]nd this court finds based upon the testimony presented and the defendant’s professed interest in having sexual contact with children as young as 10, the registration is appropriate even though he did not engage in such conduct in this case.”  (See People v. Monroe (1985) 168 Cal.App.3d 1205.)  The appellate department of the Los Angeles Superior Court affirmed petitioner’s conviction.  This court denied the original writ of habeas corpus without an opinion.  As previously indicated, our Supreme Court directed us to issue the order to show cause.

Appeal from a judgment of the Superior Court of Orange County, James M. Brooks, Judge.  Affirmed.
Cheryl A. Geyerman and Peggy A. O’Neill, under appointment by the Court of Appeal, for Objector and Appellant.
 Laurence M. Watson, County Counsel, Robert G. Overby and Laurie A. Shade, Deputy County Counsel, for Petitioner and Respondent.
 When appointed counsel in a conservatorship appeal fails to discover an arguable issue, must the Court of Appeal independently review the record upon a request per People v. Wende (1979) 25 Cal.3d 436?[1]  Yes.

I

 Francisco Colmenares worked for Braemar Country Club for 25 years, from 1972 to 1997.  In 1981, Colmenares injured his back, after which he was (in conformance with his doctor's orders) given only "light duty" jobs.  In 1982, Colmenares was promoted from general laborer to foreman of a golf course maintenance crew.  In 1995, Colmenares began reporting to a new supervisor, Gary Priday.  In October 1995, Priday "wrote up" Colmenares for poor performance.  Over the next two years, Colmenares complained to Braemar's general manager and to someone in Braemar's human resources department about Priday's "lack of communication," but Colmenares never suggested to management that Priday's failure to communicate was related to Colmenares's work restrictions.  In July 1997, Priday assigned Colmenares to a three-month construction project that required heavy manual labor.  At the end of the three-month period, Colmenares was fired for "poor performance."

            After exhausting his administrative remedies, Colmenares sued Braemar for age discrimination, disability discrimination, breach of an implied contract, breach of an implied covenant, and intentional infliction of emotional distress.  Braemar answered and conducted discovery, then moved for summary judgment.  Over Colmenares's opposition, the motion was granted.  Colmenares appeals from the judgment insofar as it disposed of his disability discrimination claim, contending the trial court applied the wrong standard when it determined that Colmenares does not suffer from a protected physical disability.  For the reasons explained below, we affirm.

The City of Pomona and qui tam[1] plaintiff Nora Armenta (Armenta) petition for a writ of mandate commanding the trial court to reinstate the City’s first cause of action, which alleges the violation of the California False Claims Act[2] (Gov. Code, § 12650 et seq.)[3] by real parties in interest James Jones Company, Mueller Co., Tyco International (US), Inc. and Watts Industries, Inc.  We grant the writ petition.

Lawrence Cuevas was convicted of robbing three banks in Alameda County during the fall of 1997.  Because of his lengthy felony criminal record, Cuevas was sentenced under the “Three Strikes” law to a total prison term of 85 years to life.  He appeals his conviction and sentence on the following grounds:  (1) ineffective assistance of counsel for failure to make a suppression motion; (2) instructional error on the element of “force or fear”; (3) instructional error that had the effect of depriving appellant of his right to jury nullification; and (4) cruel and unusual punishment.  We find no error and affirm.

Procedural Background

            In an amended information filed on April 12, 2000, appellant was charged with four counts of robbery in violation of Penal Code[1] section 211.[2]  It was further alleged that appellant had suffered four prior felony convictions within the meaning of sections 1170.12 and 667, subdivision (a), and had served one prior prison term within the meaning of section 667, subdivision (b). 

            A jury found appellant guilty of three counts of robbery (counts 2, 3 and 4), but was unable to reach a verdict as to the fourth (count 1).  The court declared mistrial as to count 1.  In a bifurcated proceeding, the jury found the prior conviction allegations to be true. 

            On June 29, 2000, appellant was sentenced to 85 years to life in prison, comprised of the following:  consecutive 25-year-to-life terms for each of the three robberies, two consecutive 5-year terms under section 667, subdivision (a), and a concurrent 1-year term for the prior prison term served.  The court stayed sentence on two prior serious felony convictions that it found had not been brought and tried separately.  Appellant timely appealed.

Defendant and appellant Monica Chavez appeals the judgment entered after she was convicted by a jury of the following crimes:  Count 1, murder during the commission of a home invasion robbery and residential burglary within the meaning of Penal Code sections 187 and 190.2, subdivision (a)(17).[1]  Count 2, residential burglary, first degree, in violation of section 211.  Count 3, burglary, first degree, in violation of section 459.  Counts 6 through 14, robbery, second degree, in violation of section 211.  As to each count the jury found true the allegation that a principal was armed with a firearm, pursuant to section 12022, subdivision (a)(1).  Probation was denied, and appellant was sentenced as follows:

            Count 6, the mid-term of 3 years, plus 1 year for the firearm enhancement.  Count 1, life without parole, plus 1 year for the enhancement, to run consecutive to count 6.  In each of the remaining counts, 7 through 14,[2] appellant was sentenced to one-third the mid-term, 1 year to run consecutively to count 6.  The sentence as to counts 2 and 3 was stayed pursuant to section 654.  The enhancements as to counts 7 through 14 were stricken for sentencing purposes.  Appellant was ordered to pay $10,000 in restitution pursuant to section 1202.4, subdivision (b) and given credit for 801 days of actual custody.

1.  The opinion filed May 22, 2001 is modified as follows:

            The last sentence of the first paragraph on page 25 is modified to read:

Although Love and Alford do not raise any issue in their petition regarding such matter, we address it because of the court's misconceptions about the scope of a valid protective order which may be issued under Evidence Code section 1045, and the petitioners were given the opportunity to reply to such issue, which was raised, and thus joined, by the real parties in interest in their responses.  (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-180.)

            2.  The petition for rehearing in this matter is denied.

            3.  There is no change in the judgment.

Defendant and appellant Northridge Park Townhome Owners Association, Inc. (Northridge Park) appeals an amended judgment obtained by plaintiff and respondent Robert E. McClellan dba McClellan Design and Construction (McClellan) naming Northridge Park as an additional judgment debtor.

            The essential issue presented is whether substantial evidence supports the trial court’s determination naming Northridge Park as a party to the judgment.  Because there is substantial evidence of Northridge Park’s successor liability as a mere continuation of its predecessor corporation, the trial court properly exercised its jurisdiction under Code of Civil Procedure section 187 [1] to add Northridge Park as a party to the judgment.

Plaintiff and appellant First Commercial Mortgage Company dba FCMC Mortgage Company (First Commercial), an Arkansas corporation, appeals a judgment following a grant of summary judgment in favor of defendants and respondents Donald R. Reece (Reece), John Andrade and Andrade Financial, a California corporation (Andrade) (collectively, defendants).

            The defendants allegedly fraudulently induced First Commercial to make a loan based on an inflated appraisal and false information.  First Commercial sold the loan to First Nationwide Mortgage Company (Nationwide).  The borrowers defaulted, Nationwide foreclosed, and made a successful full credit bid at the trustee’s sale.  Pursuant to their contract, Nationwide then required First Commercial to make it whole.  In exchange for repaying Nationwide, First Commercial received the foreclosed property, which it sold at a loss. First Commercial sued defendants to recoup its losses.

            The rule that a full credit bid operates as an admission by the bidding lender of the property’s value does not preclude a claim by the repurchasing lender that it suffered damages from the compelled repurchase as a consequence of the defendant’s misrepresentation or breach.  Accordingly, the judgment is reversed.

 MODIFICATION ORDER
      [No Change in Judgment]

In 1989, our Legislature enacted Penal Code section 288.5[1] observing in that section’s legislative declaration of purpose that “there is an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse by those commonly referred to as ‘resident child molesters.’  These molesters reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time but the child, because of age or the frequency of the molestations, or both, often is unable to distinguish one incident from another . . . , and as a consequence prosecutors are unable to . . . overcome . . . constitutional due process problems . . . .”[2]  Today, guided by that express legislative declaration, we decide instructional and sufficiency issues arising from language in section 288.5, subdivision (a), making that subdivision applicable to “[a]ny person who . . . has recurring access to the child . . . .”   (Italics added.)

Jose Luis Rodriguez appeals from the judgment entered following his convictions by jury of two counts of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)).  He was sentenced to prison for 28 years.

            We reject Rodriguez’s contention that the phrase “recurring access” in section 288.5, subdivision (a), has a technical meaning and that the trial court erroneously failed to instruct thereon; we conclude the phrase requires only that the circumstances of “access” be “recurring.”  To the extent that People v. Gohdes (1997) 58 Cal.App.4th 1520 (which was not a case involving alleged instructional error but alleged evidentiary insufficiency at a preliminary hearing), suggests that the phrase “recurring access” has a technical meaning, we believe Gohdes’s reasoning and result were flawed, that both were impacted by a unique set of facts that caused Gohdes to effectively rewrite the subdivision apparently to avoid what the Gohdes court viewed as a harsh result, and that, in any event, Gohdes did not invest the phrase “recurring access” with a technical meaning.  Moreover, we reject Rodriguez’s related contentions that, because there was insufficient evidence of “recurring access,” there was insufficient evidence to support his convictions.

            Finally, we accept respondent’s concession and hold that Rodriguez’s section 1202.4, subdivision (b), and section 1202.45 restitution fines must be reduced; we will modify the judgment accordingly.

In 1989, our Legislature enacted Penal Code section 288.5[1] observing in that section’s legislative declaration of purpose that “there is an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse by those commonly referred to as ‘resident child molesters.’  These molesters reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time but the child, because of age or the frequency of the molestations, or both, often is unable to distinguish one incident from another . . . , and as a consequence prosecutors are unable to . . . overcome . . . constitutional due process problems . . . .”[2]  Today, guided by that express legislative declaration, we decide instructional and sufficiency issues arising from language in section 288.5, subdivision (a), making that subdivision applicable to “[a]ny person who . . . has recurring access to the child . . . .”   (Italics added.)

Jose Luis Rodriguez appeals from the judgment entered following his convictions by jury of two counts of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)).  He was sentenced to prison for 28 years.

            We reject Rodriguez’s contention that the phrase “recurring access” in section 288.5, subdivision (a), has a technical meaning and that the trial court erroneously failed to instruct thereon; we conclude the phrase requires only that the circumstances of “access” be “recurring.”  To the extent that People v. Gohdes (1997) 58 Cal.App.4th 1520 (which was not a case involving alleged instructional error but alleged evidentiary insufficiency at a preliminary hearing), suggests that the phrase “recurring access” has a technical meaning, we believe Gohdes’s reasoning and result were flawed, that both were impacted by a unique set of facts that caused Gohdes to effectively rewrite the subdivision apparently to avoid what the Gohdes court viewed as a harsh result, and that, in any event, Gohdes did not invest the phrase “recurring access” with a technical meaning.  Moreover, we reject Rodriguez’s related contentions that, because there was insufficient evidence of “recurring access,” there was insufficient evidence to support his convictions.

            Finally, we accept respondent’s concession and hold that Rodriguez’s section 1202.4, subdivision (b), and section 1202.45 restitution fines must be reduced; we will modify the judgment accordingly.