CA Unpub Decisions

Vehicle Code section 23136[1] prohibits any person under 21 years of age from driving with a blood-alcohol concentration (BAC) of 0.01 percent or greater, as measured by a preliminary alcohol screening (PAS) test or other chemical test. (§ 23136, subd. (a).) Section 13353.2 provides that the Department of Motor Vehicles (DMV) must suspend the driver’s license of a person who violates that prohibition. (§ 13353.2, subd. (a)(2).) After two PAS tests administered during a traffic stop showed plaintiff and appellant James Beaugard Michael-Sandness (Sandness) (who was then 18 years old) had a BAC of 0.04 percent, the officer who detained Sandness suspended his driver’s license. After an administrative hearing, the DMV upheld the suspension. Sandness filed a petition for a writ of mandate against defendant and respondent George Valverde, Director of the DMV. The trial court denied the petition. On appeal, Sandness argues that (1) the PAS test results should not have been admitted into evidence, and (2) even if the results were properly admitted, there was insufficient evidence to support the finding that his BAC was 0.01 percent or greater. We reject these arguments, and affirm the judgment.

C.W. appeals an order declaring her a ward of the court. Although she was eligible for the statutory deferred entry of judgment (DEJ) program (Welf. & Inst. Code,[1] § 790 et seq.), there is no indication in the record that she, her parent or guardian, or her counsel were ever given notice of that fact. The applicable statutes and rules of court require the juvenile court to give such notice, and to consider the minor’s suitability for DEJ before entering a dispositional order. Because these requirements were not followed in this case, we vacate the juvenile court’s findings and dispositional order, and remand for further proceedings.

Defendant Jeffrey Lynn Story (appellant) appeals his conviction by jury trial of unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count I), misdemeanor driving while intoxicated (Veh. Code, § 23152, subd. (a); count III), misdemeanor driving with a blood alcohol level of .08 percent or higher (Veh. Code, § 23152, subd. (b); count IV), and misdemeanor hit and run with property damage (Veh. Code, § 20002, subd. (a); count V).[1] Thereafter, he admitted two prior driving under the influence (DUI) convictions, and the jury found true that he suffered two prior strike convictions (Pen. Code, § 1170.12).[2]
Appellant contends the trial court erroneously permitted the prosecution to amend the information after he had pled guilty and before he was sentenced, and abused its discretion in refusing to strike a prior strike conviction. He also contends his sentence on count IV should have been stayed pursuant to Penal Code section 654,[3] and the stay issued on count III should be modified to preclude its use to enhance future punishment. The parties agree the probation conditions imposed on count IV should be stricken since probation was not granted. We order the probation conditions imposed on count IV stricken and otherwise affirm.

Appellant Douglas Jerome Stevenson was convicted by jury of four counts of spousal abuse (Pen. Code, § 273.5, subd. (a)),[1] and four counts of assault with a deadly weapon (§ 245, subd. (a)(1)). Deadly weapon use enhancements as to the spousal abuse charges (§ 12022, subd. (b)(1)) were found to be true, and Stevenson admitted sentencing enhancements for prior felony convictions (§ 667.5, subd. (b)). He does not challenge here the sufficiency of the evidence to sustain those convictions, but argues that the trial court committed Marsden[2] error in failing to adequately inquire into his alleged presentence dissatisfaction with appointed counsel. We disagree and affirm.

Kimberly Maybee appeals from the judgment entered after she was convicted of arson and using an explosive device. We reject her contention that we must remand for a new trial on the truth of certain prior conviction allegations because her admissions to those allegations were insufficient. However, because the trial court miscalculated her presentence custody credits, we modify the judgment to reflect the correct number of credits and affirm the modified judgment.

The jury found defendant Jose Hernandez guilty of first degree murder of Roberto Alcazar (Pen. Code, § 187, subd. (a)).[1] The jury also found defendant personally and intentionally discharged a handgun causing death (§ 12022.53, subds. (b)‑(d)) and committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). On March 3, 2011, defendant was sentenced to 50 years to life in state prison.[2]
In this timely appeal, defendant contends the trial court abused its discretion in (1) declining to bifurcate the gang allegation, (2) admitting evidence of text messages, a prior act of domestic violence, and a hearsay statement made by Sandra Lopez (Sandra), and (3) overruling an objection to the prosecutor’s opening statement. Defendant forfeited the contention concerning the evidence of a prior act of domestic violence by failing to object in the trial court. We conclude the court’s other rulings were not an abuse of discretion. As suggested by the Attorney General, we order the abstract of judgment amended to reflect the court’s pronouncement of custody credits. In all other respects, we affirm the judgment.

In this bail forfeiture action, Lexington National Insurance Corporation (Lexington) appeals the trial court’s grant of summary judgment in favor of respondent and the denial of Lexington’s motion, under Penal Code section 1305.4, to extend the exoneration period for the bail bond it posted.[1] We affirm the judgment.

Shelley McDaniel appeals from the dismissal of her complaint for negligent infliction of emotional distress as a result of witnessing an injury to her nephew during his birth. McDaniel’s claim was dismissed below for lack of standing. We affirm.

Raymundo Cruz-Avianeda appeals his conviction, by jury, of assault with intent to commit rape (Pen. Code, § 220, subd. (a)),[1] a lesser included offense of the charged crime of rape. (§ 261, subd. (a)(2).) The trial court sentenced appellant to a term of six years in state prison. He contends the trial court erred when it failed to instruct the jury on the lesser included offense of attempted rape. (§ 664/261.) He further contends the trial court erred in its imposition of certain fines and penalty assessments. We order the trial court to amend the abstract of judgment. In all other respects, the judgment is affirmed.

The Solano County District Attorney filed a petition under Welfare and Institutions Code section 602 alleging appellant Trenton V. made a criminal threat and committed battery, and further alleged the criminal threat amounted to a serious felony. (Pen. Code,[1] § 1192.7, subd. (c).) After a contested jurisdiction hearing, the juvenile court dismissed the battery allegations, but sustained allegations of a criminal threat and deemed that count a felony. (§ 422, subd. (a).) Following the disposition hearing, the juvenile court adjudged appellant a ward of the court. He was placed on probation for a maximum of three years, under the custody of his parents with the option of living independently (he was 18 at the time), according to the discretion of the probation officer. On appeal, the issue is whether there was sufficient evidence to sustain the allegations of a criminal threat. We affirm the order.

Sixteen-year-old Brett J. appeals from the dispositional order of the Sonoma County Juvenile Court committing him to the Division of Juvenile Justice (DJJ) for a period not to exceed five years. We conclude that none of the purported defects in the committal asserted by the minor has merit. We therefore affirm.

Appellant Frederick Delawrence Brown appeals from the third successive denial of his restoration of sanity petition brought pursuant to Penal Code section 1026.2, subdivisions (a) and (h). [1] He contends the trial court abused its discretion in denying the latest petition because there was no substantial evidence that he continued to be a danger to the public “due to mental defect, disease, or disorder.” (§ 1026.2, subd. (e).) Respondent argues there is substantial evidence supporting the lower court’s decision to deny the petition.
Regardless of whether we apply an abuse of discretion or substantial evidence standard of review, we conclude it was not error to deny appellant’s petition, and therefore, we affirm.

Plaintiff/respondent Prosper Marketplace, Inc. (Prosper), sought insurance coverage from its insurer, defendant/appellant Greenwich Insurance Company (Greenwich), for an underlying securities class action; Greenwich denied coverage and refused to defend. Following a bench trial solely on the issue of the duty to defend, the court concluded Greenwich had a duty to defend the underlying action up to the limits of its policy. Greenwich appeals the stipulated final judgment, contending the policy’s errors and omissions exclusion bars coverage of the underlying action. We reject the contention and affirm.

A search of the residence of defendant Peter Piero Solomon, conducted pursuant to a warrant, yielded evidence of his illegal possession of methamphetamine and items forbidden to defendant as a convicted felon. After the trial court denied defendant’s motion to quash or traverse the search warrant, a jury found him guilty of being a past‑convicted felon in possession of a firearm and ammunition (Pen. Code, former §§ 12021, subd. (a)(1), 12316, subd. (b)(1)), possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378), and the actual sale of that controlled substance (Health & Saf. Code, § 11379). The trial court found true enhancement allegations that defendant had two prior felonies (Pen. Code, § 667.5, subd. (b)), and then sentenced him to state prison for an aggregate term of three years and eight months.
Defendant advances three contentions on this appeal. First, defendant argues that his trial counsel was constitutionally incompetent for not seeking suppression of the evidence on the additional ground that the search was improperly conducted at night, which requires reversal of all defendant’s convictions. Second, defendant argues the jury was improperly instructed on the principles of accomplice credibility, which assertedly requires reversal of the two drug-related convictions. Concerning his second contention, defendant faults the trial court for neglecting its duty to instruct the jury on the applicable principles of law; if this approach fails, defendant again wants to have responsibility placed on his trial counsel. Third, on the assumption that his first and second contentions are valid, defendant asserts his trial counsel prejudicially failed to move for acquittal on all charges at the close of the prosecution’s evidence. We see no reversible error and affirm.