CA Unpub Decisions

The trial court abused its discretion in denying Sidney Coles ex parte motion for the appointment of an expert. Accordingly, the petition is granted.

Defendant Peter Raymond Musovich was charged with failing to register as a sex offender. (Pen. Code, 290.018, subd. (b).)[2] Defendant thereafter entered into a negotiated plea of guilty to the charge in exchange for the upper term of three years in prison and the prosecutions agreement not to file additional charges for failing to appear with an on-bail enhancement. ( 1320.5, 12022.1.) The judgment is affirmed.

On March 7, 2008, Butte County Sheriffs deputies arrested defendant James Mayo Ingalls for a parole violation. A search of defendant revealed several baggies of methamphetamine, drug paraphernalia, and pay/owe sheets. A search warrant for the residence was obtained, and officers found more methamphetamine, marijuana, drug paraphernalia, and what appeared to be stolen mail. Court appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant.

John E. Harbour entered a negotiated guilty plea to felony driving with a blood alcohol level of 0.08 percent or more (Veh. Code, 23152, subd. (b)) with a prior similar conviction within 10 years (Veh. Code, 23550.5, subd. (a)) (count 2) and admitted serving a prior prison term (Pen. Code, 667.5, subd. (b)). He also entered a negotiated guilty plea to misdemeanor driving when his license was suspended for driving under the influence (Veh. Code, 14601.2, subd. (a)) with a prior like conviction within five years (Veh. Code, 14601.2, subd. (d)(2)) (count 3) and misdemeanor driving without a valid license (Veh. Code, 12500, subd. (a)) (count 5). The court sentenced him to prison for a stipulated term of three years: the two-year middle term on count 2 and one year for the prison prior. Harbour appeals, contending the court abused its discretion by denying his motion to withdraw the guilty plea. Court affirm.

Mario Gauldin appeals from a judgment entered after the trial court found him guilty of being a felon in possession of a firearm and a jury found him guilty of burglary, robbery, assault with a deadly weapon, grand theft of a firearm, making a criminal threat and evading an officer. He appeals, contending the trial court abused its discretion when it denied his request to sit in the audience during the victim's in-court identification. He also asserts the trial court erred in (1) using his prior juvenile adjudications as strikes and (2) imposing consecutive terms based on facts not found by a jury beyond a reasonable doubt. Finally, in his petition for writ of habeas corpus, he contends his counsel was ineffective for failing to object to the in Court identification procedure used for his cohorts. Court reject his arguments, affirm the judgment and deny his habeas corpus petition.

A jury convicted Rory Patrick Roche of first degree residential burglary (Pen. Code, 459; count 1)[1] and receiving stolen property ( 496, subd. (a), count 2). In bifurcated proceedings, Roche admitted his prior convictions for vehicle theft (Veh. Code, 10851, subd. (a)) and burglary ( 459), which was a probation denial prior Roche contends (1) insufficient evidence supported his conviction and (2) the trial court erred in denying his motion to strike the strike prior. Court affirm.

Defendant Jose Tinoco appeals a judgment entered after his guilty plea to charges of two counts of attempted carjacking of victims Juan Calleros (count 1) and Rafael Garcia (count 2) (Pen. Code, 664/215, subd. (a))[1] with a weapon use enhancement appended to both counts ( 12022, subd. (b)(1)) and a prior serious felony conviction allegation ( 667, subd. (a)(1).) The court sentenced Tinoco to the middle term of eight years six months in prison as stipulated in the plea agreement. His sentence consisted of two years six months for count 1, a one-year enhancement for weapon use on count 1, five years for a prior serious felony conviction, two years six months concurrent for count 2, and one year concurrent for the enhancement on count 2. California Rules of Court, rule 8.304(b)(4)(B) and section 1237 authorize Tinoco's appeal.
Tinoco contends the court breached the terms of his written plea agreement by sentencing him to two counts of attempted carjacking rather than to one count, and the written plea agreement controls over any contrary oral plea made at the change of plea hearing. We conclude the written plea agreement was ambiguous, but the agreement as a whole and the surrounding circumstances evidence Tinoco's intent to plead guilty to two counts of attempted carjacking. Accordingly, Court affirm the judgment.

Conservatee Amanda B. (Amanda) appeals from a judgment reestablishing a conservatorship of her person for one year under the Lanterman-Petris-Short Act (LPSA). A jury heard testimony from Amanda and a psychologist, Dr. Valerie Rice, and found Amanda to be gravely disabled.
Amanda contends that the trial court erroneously instructed the jury pursuant to CACI No. 4002. According to Amanda, the instruction was an improper statement of the law and was overly argumentative. She asserts that the jury would have reached a different result if the court had instructed the jury as her attorney requested. We conclude that the instruction the court gave was an accurate statement of the law, and was not overly argumentative. Court therefore affirm the judgment.

Andrew O., a minor, appeals a victim restitution order imposed as a condition of his probation after he was declared a Welfare and Institutions Code[1] section 602 ward of the court. Andrew admitted a petty theft allegation (Pen. Code, 484), and the court placed him on probation. As conditions of his probation, the court ordered Andrew to pay restitution to the victims of the theft, 30 days of home supervision, and $264 victim restitution to Lawrence Cicchetti, which victim restitution fine Andrew had been ordered to pay in an earlier delinquency proceeding for battery. Andrew challenges the $264 restitution order, contending the court abused its discretion by issuing the second order when the court had previously ordered the same restitution to the same victim in an earlier juvenile proceeding. Court conclude the court did not have authority to reimpose in this case a victim restitution fine imposed in a prior juvenile delinquency proceeding in which jurisdiction had been terminated. Accordingly, Court reverse the $264 restitution order.

Defendant Sammy Lee Lawson appeals from his conviction of transportation of marijuana (Health & Saf. Code, 11360, subd. (a)) on the ground the trial court erred in denying his motion to suppress evidence obtained in an allegedly illegal search and seizure. Defendant contends (1) the arresting officers contacts with defendant constituted unlawful detentions violative of the Fourth Amendment, (2) the search of defendant was not a valid parole search because it was arbitrary and capricious, and (3) in the alternative, his trial counsel provided ineffective assistance by failing to renew the motion to suppress. Court find no error, and Court affirm.

In this petition for writ relief, R.A. (father) asks us to set aside the juvenile courts order denying him reunification services and setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26 for his daughter. He contends that the juvenile court erred when it found it would not be in the childs best interest to offer him reunification services. He also contends that the court abused its discretion when it failed to order the child be placed with any of his family members. Court disagree with both of these assertions, and, accordingly, deny the petition.

This is an appeal from summary judgment granted in favor of defendant and respondent, Deerwood Corporation. Plaintiffs and appellants James B. Dean and Marion Ferri Dean contend the trial court made errors of fact and law in determining there was no merit to various causes of action concerning an easement that runs across appellants property. Court affirm the judgment.

Defendant Miguel Fernandez Rocha was convicted of receiving stolen property and burglarizing four vehicles. On appeal, he contends (1) the trial court erred by admitting evidence of defendants prior uncharged acts, (2) insufficient evidence supported one of the burglary convictions, (3) testimony that officers responded to a suspicious vehicle call was hearsay and irrelevant, (4) the trial court erred by failing to instruct on unanimity, (5) the trial court erred by failing to instruct on expert testimony, (6) these errors were cumulatively prejudicial and (7) the trial court abused its discretion by denying probation. Court affirm.

On October 25, 2007, appellant, Karl Lynn Brazell, was charged in an information with kidnapping for ransom (Pen. Code, 209, subd. (a), count one),[1]assault with a deadly weapon ( 245, subd. (a)(1), count two), false imprisonment by violence ( 236 & 237, count three), assault with a deadly weapon ( 245, subd. (a)(1), count four), attempted robbery ( 664 & 211, count five), and commercial burglary ( 459, count six). The information further alleged that one of the victims was a developmentally delayed adult ( 667.9, subd. (a)) and that appellant used a deadly and dangerous weapon in committing counts one, three, five, and six ( 12022, subd. (b)(1)). On February 6, 2008, a jury found appellant guilty on all counts and found both enhancements to be true.