CA Unpub Decisions

Defendant and appellant Karyn Jeanne Dorsey appeals following a guilty plea. She contends the trial court abused its discretion when it denied probation and sentenced her to prison for two years. She also argues she received ineffective assistance of counsel because her attorney did not file a motion to enforce a plea bargain after the prosecutor withdrew an offer.

Citing the Supreme Courts decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), defendant and appellant Fred Oliver Torbett appeals from a jury conviction and seeks a remand to address the constitutionality of his sentence. Defendant contends the trial court violated his constitutional right to a jury trial when it imposed an upper term based on a fact that was not admitted or found true by a jury and/or on another fact that does not fit within the scope of the prior conviction exception to Cunningham.

Defendant was convicted by jury of assault with a deadly weapon and by means of force likely to produce great bodily injury and possession of drug paraphernalia. Defendant contends evidence of the facts underlying his prior felony conviction for assault with intent to commit rape was erroneously admitted and should have been excluded because it was more prejudicial than probative. He also contends a jury instruction on flight was improperly given and challenges his sentence. Court modify the judgment to correct the sentence and affirm it as so modified.

On September 8, 2007, at approximately 11:43 p.m. appellant, Patrick Allen Meyer, stopped his car facing north at a posted stop sign on Villa at the intersection of Olive Avenue in Fresno. Joseph Downing was on his motorcycle with Darla Gillespie seated behind him, traveling east on Olive at a speed of 45 to 50 miles per hour. As Downing approached the intersection of Olive and Villa, Meyer pulled out into the intersection causing Downings motorcycle to strike Meyers car in the front end. Downing and Gillespie were thrown from the motorcycle. Meyer fled from the scene to his house and told his son he had just hit someone on a motorcycle. Meyer called 911 and asked his son to return to the scene with him and take the blame for driving the car.

G.S. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her daughter, A.A.[1] Appellant contends she presented new information regarding her possible Cherokee heritage in the months immediately preceding the termination hearing. She alleges respondent Fresno County Department of Children and Family Services (department) failed to follow up by providing additional notice to two Cherokee tribes, pursuant to section 224.3, subdivision (f), and the Indian Child Welfare Act (ICWA; 25 U.S.C. 1901 et seq.). She further claims she had no opportunity, before now, to challenge the departments alleged failure by way of writ or appeal and, in any event, the waiver rule announced by this court in In re Pedro N. (1995) 35 Cal.App.4th 183 (Pedro N.), no longer applies.
On review, we disagree and will affirm. The premise of appellants contention is flawed; she overlooks the record which establishes she revealed the same information at the outset of this case.

Appellant (mother) appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26)[1]to her son D.D. Court affirm.

Appellant, J.M., appeals from the juvenile courts order denying his petition pursuant to Welfare and Institutions Code section 388 to modify the courts prior orders terminating his reunification services. The court terminated appellants parental rights to his children pursuant to section 366.26.

Plaintiff City of Anaheim (Anaheim) and Disney Baseball Enterprises, Inc. (Disney), entered into a stadium lease agreement in connection with Disneys purchase of the California Angels major league baseball team. Section 11(f) of the lease required Disney to change the team name to include the name Anaheim therein. Shortly after executing the lease, Disney renamed the team the Anaheim Angels. Turning to ABLPs appeal, we conclude the trial court did not abuse its discretion in declining to apply the judicial estoppel doctrine, and that substantial evidence supports its finding the parties did not intend the leases indemnification provision to cover prevailing party attorney fees. Accordingly, Court affirm the judgment and the trial court order denying ABLP attorney fees.

Cristian Ernesto Benitez appeals from a judgment entered after a jury convicted him of conspiracy to commit second degree robbery while armed with a firearm. The trial court found true allegations he had a prior strike within the meaning of the Three Strikes law and a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1). The court sentenced Benitez to a total aggregate prison term of 11 years. On appeal, Benitez challenges several of the trial courts evidentiary rulings, contending the courts rulings violated state evidentiary rules and deprived him of his federal Constitutional rights to due process and a fair trial. Court find his contentions meritless and affirm the judgment.

A jury convicted defendant Timothy Lee Driggars of attempted murder (Pen. Code, 643, subd. (a), 187)[1] and street terrorism ( 186.22, subd. (a)). The jury found the crime was not premeditated. The jury found true allegations defendant committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)), personally discharged a firearm causing great bodily injury ( 12022.53, subd. (d), 1192.7 & 667.5), and personally used a firearm ( 12022.5, subd. (a), 1192.7 & 667.5). Defendant admitted serving a prior prison term. ( 667.5, subd. (b).) The court sentenced him to 25 years to life in state prison plus 18 years. On appeal defendant raises a host of ineffective assistance of counsel claims, as well as a substantial evidence challenge to his attempted murder conviction, a prosecutorial misconduct argument, and contentions of court error on evidentiary issues. Defendant further argues the cumulative effect of the errors requires reversal. None of these claims have merit. Court therefore affirm the judgment.

This case arises from a dispute regarding the property tax assessment of several merchants (the Taxpayers)[1]conducting business in the Dana Point Harbor and Marina (the Harbor), which is owned by the County of Orange (the County). The Taxpayers challenged the 2002, 2003, and 2004 tax assessments made by the Orange County Assessor (the Assessor) first to the Assessment Appeals Board (AAB) and then to the superior court. Throughout the proceedings below, the parties agreed the Assessor had the discretion to value each of the Taxpayers possessory interests based upon the capitalization of income approach, but they disagreed on the proper way to determine the income stream to be utilized under this approach. Specifically, the Taxpayers believed the Assessors decision to use rent payments as evidence of the income stream was wrong because their rents were based on a percentage of their gross income, necessarily including non taxable factors such as enterprise value and fees for the maintenance of common areas not actually possessed by the Taxpayers.
This challenge would ordinarily be a question of law to be reviewed de novo by the trial court and by this court. (See Service America Corp. v. County of San Diego (1993) 15 Cal.App.4th 1232, 1235 (Service America).) However, the Taxpayers invited error in this case by repeatedly advising the trial court to apply the substantial evidence rule, which it did. Under the doctrine of invited error, they are now bound to this standard on appeal. Court affirm the judgment.

Defendant raises numerous issues on appeal. We reject all but two of them. We agree that since the jury found it not true he was a gang member, count three, which was to be punished as a felony only if there was a true finding he was a gang member, should be punished as a misdemeanor. Court also agree he was given too few custody credits. In all other regards, Court affirm.

Marcos appeals from an order sustaining the jurisdictional petition of the Orange County Social Services Agency (SSA), and declaring his daughter, S.M., and his sons, N.M and E.M., dependents of the juvenile court. Marcos argues the evidence was insufficient to sustain the allegations of the petition. We disagree. The petition alleged Marcos had engaged in acts of physical abuse of his two stepchildren, sexual abuse of his stepdaughter, domestic abuse with his wife, and that he and his wife had failed to protect both the stepchildren and their own children, who had been placed at risk of harm. The allegations of sexual abuse were directly supported by the testimony of the two stepchildren. On appeal, Marcos is argues simply that those stepchildren should not have been believed, which is an attack on the weight of their testimony, rather than its sufficiency. Such an argument cannot be entertained on appeal.
The order is affirmed.

This case has been transferred to us from the Supreme Court (S151236) with directions that we vacate our prior decision (People v. Costa (Feb. 21, 2007, H029681) [nonpub.]) and reconsider the case in light of People v. Towne (2008) 44 Cal.4th 63 (Towne). In February 2007, we reversed the judgment and remanded the case for resentencing in light of the United States Supreme Court decisions in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham).