CA Unpub Decisions
California Unpublished Decisions
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A jury convicted defendant of the reckless handling of hazardous waste, a felony (count 1Health & Saf. Code, 25189.6, subd. (a)); attempted transportation of hazardous waste to a facility not permitted to handle such waste, a felony (count 2Pen. Code, 664;[1]Health & Saf. Code, 25189.5, subd. (c)); handling hazardous waste without a manifest, a misdemeanor (count 3Health & Saf. Code, 25160, subd. (d)(1)); the unregistered transportation of hazardous waste, a misdemeanor (count 4Health & Saf. Code, 25191, subd. (d)(2)); and transportation of hazardous waste without insurance, a misdemeanor (count 5Health & Saf. Code, 25169, subd. (a)). In a bifurcated proceeding thereafter, defendant admitted the truth of allegations that he suffered a prior strike conviction (Pen. Code, 667, subd. (b)-(i), 1170.12) and five prior prison terms (Pen. Code, 667.5, subd. (b)). The court sentenced defendant to an aggregate term of imprisonment of four years eight months, consisting of the following: the low term of 16 months, doubled pursuant to the strike prior, on count 1; the low term of 16 months, doubled pursuant to the strike prior, on count two, concurrent; 30 days in jail concurrent on counts 3 through 5; and one consecutive year for each of the five prior prison terms, striking punishment for three of the priors. On appeal, defendant contends the court erred in imposing concurrent terms on counts 2 through 5, maintaining that the court should have stayed imposition of punishment on those counts pursuant to the dictates of Penal Code section 654. We agree that defendants intent in his commission of the offenses in counts 3 through 5 were merely incidental to his overall objective in count 2, the illegal transportation of hazardous waste. Hence, defendants total sentence is modified so that the sentences imposed on counts 3 through 5 are stayed. However, we concur with the People that defendant maintained divisible intents in mishandling the hazardous materials and attempting to transport them; therefore, we uphold the concurrent sentence imposed on count 2. In all other respects, the judgment is affirmed.
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It was alleged by information filed September 10, 2007, as follows: Appellant Darrell Dillihunt committed two counts of attempted murder of a peace officer (Pen. Code, 187, subd. (a), 664;[1]counts 1, 2) and individual counts of shooting at an inhabited dwelling ( 246; count 3), assault with a firearm ( 245, subd. (a)(2)), and possession of a firearm by a person previously convicted of a felony ( 12021, subd. (a)(1); count 5); in committing the count 1, 2 and 4 offenses, appellant personally used a firearm, within the meaning of section 12022.5, subdivision (a); in committing the count 1 and 2 offenses, appellant personally used a firearm, within the meaning of section 12022.53, subdivision (b), and personally discharged a firearm, within the meaning of section 12022.53, subdivision (c); and appellant committed the count 1, 2, 3 and 4 offenses for the benefit of, at the direction of or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members ( 186.22, subd. (b)(1)(C)). Appellant pled not guilty to all charges and denied the special allegations. Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d. 436.) Appellant has not responded to this courts invitation to submit additional briefing.
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Appellant Kory Taylor appeals the order extending his state hospital commitment for an additional year pursuant to the Mentally Disordered Offender Act (MDOA) (Pen. Code 2970, 2972). Citing People v. Wende (1979) 25 Cal.3d 436 (Wende), Anders v. California (1967) 386 U.S. 738 (Anders), and Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), his appointed counsel asks that we independently review the record to determine whether there are any arguable appellate issues. Counsel states that he has thoroughly reviewed the record and discussed the case with a staff attorney at the Central California Appellate Project but is unable to identify any specific issues on appeal. Counsel advised Taylor of this fact and that Taylor may file a supplemental brief, which counsel would assist him in filing. In addition, the court invited Taylor to file a personal letter brief stating any ground of appeal he wished the court to consider. He has not done so.
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Defendant and cross-complainant S & J Electric and defendant Steve Jaworski appeal from a money judgment in favor of plaintiff and cross-defendant Madison Squares Anaheim Hills for breach of a construction contract. They claim the court erred in finding breach and that damages for both completion of work and lost profits were improper. The record reflects defendants breached the contract and plaintiff was entitled to recover the amount necessary to complete defendants unperformed work. But there was insufficient evidence of lost rents and the judgment is reversed to the extent it awards plaintiff $100,000 for lost profits. Otherwise the judgment is affirmed.
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This is an appeal from a restraining order issued by the court against appellant Julie Martin (Julie)[1]in April 2007. Julie, acting in propria persona has filed a 268 page opening brief and a 93 page reply to respondents 8 page brief.[2] Her briefs are replete with facts lacking record references, facts unrelated to the instant appeal, and inappropriate argument. Indeed, they are so full of extraneous material that it is nearly impossible to separate out what might be relevant to the instant case. Rather than either deeming Julies arguments waived[3]or attempting to address each of her literally dozens of headings and subheadings, Court shall instead simply address what this case purports to be an appeal from the grant of a restraining order and only address the pertinent facts and the cognizable legal issues Julie raises, as best Court can discern them. Having carefully reviewed the record and the related law, Court find no error and affirm.
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Richard Laird appeals from the trial courts decision to deny his new trial motion after a defense verdict in his auto accident personal injury suit against Robert Johnston. Laird challenges the sufficiency of the evidence to support the jurys conclusion Johnstons negligence did not cause Lairds injuries. Laird also contends the trial court erred in admitting, to counter Lairds emotional distress claim, evidence that preexisting emotional problems drove him to abuse alcohol and drugs, for which he sought treatment. Finally, he argues one of the jurors lacked the ability to understand English and was therefore incompetent. None of Lairds arguments have merit, and Court therefore affirm the judgment.
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This is Herman Aster's fourth appeal from family court orders dissolving his marriage to Zdenka Aster and dividing the parties' property. In the first appeal (H022230), Herman attempted to challenge the December 2000 termination of marital status as well as the subsequent division of property. Finding no properly presented cognizable issues, we affirmed the order dividing the property. In the second appeal (H027461), he unsuccessfully contested an April 20, 2004 order requiring him to pay Zdenka $576,752.79, the amount that had remained unpaid (plus interest) since the property division. In the April 2004 order the family court added that if Herman did not pay the sum he owed within 30 days, then the parties' San Jose house "shall be sold" in order to satisfy the judgment. In August 2004, the court ordered Herman to cooperate in the division of stock certificates and securities accounts. Again we affirmed (H027866), finding "no legally or factually supported ground" for concluding that Herman was the victim of attempted extortion by Zdenka, "conspiracy" by the attorneys involved in the case, or "persecution" of him by the family court. The postjudgment order is affirmed.
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D.S., the mother of J.T. and M.S. (mother), and J.T. the father of J.T. (father), appeal from juvenile court orders adjudging the minors dependent children and removing the minors from parental custody. (Welf. & Inst. Code, 360, subd. (d)), 395.) Mother and father make several contentions of alleged prejudicial error. Court affirm the orders.
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On August 3, 2004, defendant Roger Dale Mitchell went to his monthly meeting with his probation officer. He appeared agitated, with shaking hands, rapid speech, and unusual sweating, so the probation officer asked if he had recently used methamphetamine. Defendant said no, and agreed to a drug test. Having undertaken an examination of the entire record, Court find no arguable error in favor of defendant.
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In October 2006, defendant Harry Albert Sebree was arrested on suspicion of domestic violence. While in custody, defendant admitted to putting his hands down the pants of his girlfriends eight-year old daughter on more than one occasion. Defendant attempted to defend his conduct by explaining that he had been using drugs, and had a substance abuse problem. He was nevertheless arrested and charged with four counts of committing a forcible lewd act upon a child under the age of 14 (Pen. Code, 288, subd. (b)(1)).
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant. |
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Defendant Michael Lee McNelly pled no contest to kidnapping with intent to commit robbery and assault with intent to commit rape. In exchange for his plea, the People agreed to dismiss additional charges, as well as an allegation that defendant had a prior strike conviction within the meaning of Californias three strikes law. A further component of the plea agreement was that, while defendant could be sentenced to a maximum term of life imprisonment with the possibility of parole, the court could also consider imposing a lesser sentence; if life imprisonment turned out to be the only option available to the court at sentencing, defendant would be allowed to withdraw his plea. At the sentencing hearing, on the Peoples motion and without objection by defendant, the trial court dismissed the strike allegation based on insufficient evidence, and after considering the prospect of a lesser sentence, sentenced defendant to a term of life in prison with the possibility of parole on the kidnapping, plus a consecutive term of four years on the assault.
Defendants appeal is dismissed. |
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Shortly before midnight on January 28, 2008, defendant Christopher John Day drove a car with no rear license plate through a construction zone at approximately 80 miles per hour. Using emergency lights and siren, Deputy Sheriff Michael Putnam began a pursuit. The car slid into a driveway where it hit a parked pickup truck, then accelerated to about 40 miles per hour in a residential area. After driving through a red traffic light, defendant stopped the car and fled on foot. Putnam caught defendant when he attempted to climb a fence. They struggled and defendant did not comply with Putnams orders to lie down on his stomach and place his hands behind his back. Putnam and his partner handcuffed defendant and walked him toward the patrol car; but defendant broke free and ran down the street before he was recaptured. The judgment is affirmed.
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Reginald Butler appeals a judgment entered following his guilty plea to one count of possession of cocaine base, a controlled substance (Health & Saf. Code, 11350, subd. (a)). On appeal, he contends: (1) he was denied his statutory right to have the same judge hear his second motion to suppress evidence under Penal Code[1]section 1538.5; (2) the doctrine of collateral estoppel barred the trial court from admitting evidence suppressed in response to his first motion to suppress; and (3) he was denied his constitutional right to due process of law.
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