CA Unpub Decisions

Defendants Avelino Padilla and Veronica Flores appeal from the judgment entered following their pleas of no contest to having a concealed weapon in a vehicle[1] (Pen. Code, 12025, subd. (a)(1)),[2] taken after the trial court denied their motion to suppress ( 1538.5). Court affirm.

Curtis L. Davis (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of the unlawful driving or taking of a vehicle. (Veh. Code, 10851, subd. (a).) In an agreed disposition, defendant admitted two section 666.5 allegations and that he had 11 prior convictions for which he had served a separate prison term. (Pen. Code, 667.5, subd. (b).) In exchange for the admissions, the People agreed that at sentencing, there would be a six-year lid on defendants aggregate state prison term. At sentencing on December 8, 2006, the trial court imposed an aggregate state prison term of six years, consisting of an upper term of four years for the unlawful driving offense, enhanced by two years for the service of two separate prison terms. After examination of the record, counsel filed an Opening Brief, in which no issues were raised.

After a no contest plea, Kyle L. was convicted of resisting an officer through force or violence, a felony. (Pen. Code, 69.)[1] The court denied appellant's motion to reduce his conviction to a misdemeanor, suspended the imposition of sentence, and placed him on formal probation for 36 months. Appellant argues that his sentence is unauthorized because he was a juvenile at the time of the offense, and the court sentenced him without conducting a fitness hearing. He also argues that the court abused its discretion by denying his request to reduce the offense to a misdemeanor. Court affirm the conviction, reverse the order of probation, and remand for sentencing in accordance with section 1170.17, subdivision (c).

Eric Gilbert Butler (Butler) appeals from the judgment (order revoking probation) entered following his plea of no contest to making a criminal threat (Pen. Code, 422). The trial court sentenced Butler to 16 months in state prison. Court affirm the judgment.

Appellant Karen A. (Mother) and minors Kristopher M., Cody M., P.M. and K.M. (sometimes collectively the children) appeal from an order denying Mothers petition filed pursuant to Welfare and Institutions Code section 388. Mother sought modification of the order setting a hearing under section 366.26 and requested that the children be returned to her custody. Mother and the children contend that the trial court abused its discretion in determining that Mother demonstrated neither changed circumstances nor that a change of order would be in the childrens best interests. Court affirm. The juvenile court properly exercised its discretion in finding that Mother had not met her burden to show that any change of order was warranted.

A jury convicted defendant Marcus Lancaster of attempted willful, deliberate, and premeditated murder (Pen. Code 664/187, subd. (a)),[1]and found true the allegations that he intentionally discharged ( 12022.53, subd. (c)) and personally used ( 12022.53, subd. (b)) a firearm. The jury found not true the allegation that defendants discharge of the firearm caused great bodily injury ( 12022.53, subd. (d)), and acquitted defendant of assault with a firearm ( 245, subd. (a)(2)). Before sentencing, the trial court declared a doubt as to defendants mental competence under section 1368, adjourned criminal proceedings, and appointed a mental health expert to examine defendant. The issue of competence was submitted based on the experts report. The court found defendant competent, and reinstated criminal proceedings. The court sentenced defendant to an indeterminate life term for the attempted murder, plus 20 years for the discharge of a firearm. The court imposed and stayed a 10-year term for the use of a firearm.
Defendant appeals from the judgment of conviction, contending: (1) without evidence establishing the chain of custody, the trial court erred in admitting into evidence the firearm allegedly used in the attempted murder; and (2) the eyewitness identification testimony was inherently unbelievable and the remaining evidence does not support the conviction. Court affirm.

Gregory M. (father) appeals from the juvenile courts jurisdiction and disposition order pertaining to minor Sierra M. (now age 6). Court agree with father that there is insufficient evidence to support the courts jurisdictional finding of concealment of the minor, but find sufficient evidence of endangerment based on fathers use of drugs, and affirm the dispositional order.

Krysta M., the mother, appeals from a Welfare and Institutions Code section 366.26 parental rights termination order. The mother contends the parental rights termination order must be reversed because of noncompliance with the Indian Child Welfare Act. The parties have stipulated to a limited reversal of the parental rights termination order to allow compliance with the Indian Child Welfare Act and immediate remittitur issuance. Court accept the parties stipulation.

In these consolidated separate appeals after a joint trial in cases consolidated in the trial court, defendants Lamson Trong Pham, Bruce Huy Phan, and Sutter Nguyen appeal following convictions for murder and attempted murder, with findings of firearm use against Lamson and Bruce.[1] (Pen. Code, 187, 664; undesignated statutory references are to the Penal Code.) Sutter contends the evidence is insufficient to support the judgment. Some or all defendants in their separate briefs contend the trial court improperly (1) denied Sutters severance motion, (2) allowed the prosecutor to discriminate in jury selection, (3) admitted street gang evidence (despite the absence of street gang charges) and expert opinion regarding mental state, (4) excluded exculpatory evidence, (5) misinstructed the jury, (6) coerced the jury to reach a verdict, (7) allowed prosecutorial misconduct, (8) denied a mistrial motion, (9) failed to entertain Bruces motion to discharge retained counsel, and (10) imposed an unlawful sentence on Lamson. Court make a sentencing correction conceded by the People as to Lamson. Court otherwise affirm the judgments.

A jury found defendant Erick Reginald Huff guilty of attempted murder (Pen. Code, 187, subd. (a), 664),[1]assault with a deadly weapon (a knife) ( 245, subd. (a)(1)), residential burglary ( 459), and robbery ( 211). The jury also found true allegations defendant personally inflicted great bodily injury in the commission of those offenses under circumstances involving domestic violence ( 12022.7, subds. (a), (e)); personally used a deadly and dangerous weapon (a knife) in the commission of the attempted murder, assault, and robbery ( 12022, subd. (b)(1)); and committed the burglary while a person other than an accomplice was present in the residence ( 667.5, subd. (c)(21)). The jury found defendant not guilty of severing a telephone line ( 591). In a bifurcated proceeding, defendant admitted a prior conviction ( 667, subd. (a)) and a strike prior ( 667, subds. (b)-(i), 1170.12). Sentenced to state prison for 24 years, defendant appeals, contending the trial court prejudicially erred in admitting evidence concerning three prior incidents of domestic violence, and failing to clarify that the force used in a robbery must be used to effectuate that robbery, and as a result, his convictions for attempted murder and robbery must be reversed. Court affirm.

Following the denial of defendant Larry Neil Houks motion to suppress evidence (Pen. Code, 1538.5),[1]in which he sought to suppress evidence found in a warrantless search of a pickup he was driving, a jury convicted him of transportation of methamphetamine (Health & Saf. Code, 11379) and possession of methamphetamine for sale (Health & Saf. Code, 11378). Defendant pleaded guilty to an additional charge of failure to appear ( 1320, subd. (b)). Defendant waived his right to a jury trial on allegations of two prior convictions and the service of six separate prison terms, all of which the court found true. The court sentenced defendant to state prison for 14 years 8 months and imposed various fines and fees, including a cumulative $60 court security fee pursuant to section 1465.8. The sentences on the remaining convictions were run concurrent.
On appeal, defendant contends he received ineffective assistance of counsel when, at the suppression hearing, counsel failed to argue there was no probable cause for his arrest or for the search of his truck. Defendant also claims imposition of the court security fees violated the prohibitions against an ex post facto law and retroactive application of the Penal Code. Court affirm the judgment.

The Dental Board of California (Board) appeals from the trial courts order dissolving a preliminary injunction after the trial court discovered on the second day of trial that the parties had entered into an agreement approximately five months earlier settling the case. The preliminary injunction had prevented defendant Rick Miller from practicing dentistry without a license. Although this case presented a single, simple question of statutory interpretation, that issue was never tried below. The Board now expects this court to resolve the merits of the case, ignoring the basic rule that our jurisdiction is limited to the review of a judgment or appealable order. The Board brought this action to enjoin Miller from the unlicensed practice of dentistry, and was successful in obtaining a preliminary injunction that prevented Miller from providing dental services without a license in violation of the Dental Practice Act. Millers defense to the action was that he was exempt from the licensing requirements of the Dental Practice Act based upon an exception to the licensing requirements of the Medical Practice Act. The judgment (order) is affirmed.

After his motion to suppress was denied, defendant Ronald Dean Glaser pled no contest to possession of methamphetamine for the purpose of sale (Health & Saf. Code, 11378; undesignated statutory references are to the Health and Safety Code). Sentenced to 10 years in state prison, he now appeals, contending the trial court erred in denying the suppression motion, sentencing defendant to the upper term, and refusing to strike any of the alleged enhancements. Court conclude the denial of the motion to suppress, on the ground defendant consented to the search of a safe in the trunk of his car, is erroneous. Court reverse the judgment and remand for the trial court to decide whether the search may be justified by probable cause apart from defendants consent.

Pursuant to a plea bargain, defendant Jason Alan Dailey pleaded guilty to two counts of nonforcible lewd behavior with a child (Pen. Code, 288, subd. (a)) in exchange for the dismissal of eight forcible counts (Pen. Code, 288, subd. (b)(1)). The trial court noted that the maximum sentence for the offenses to which defendant was pleading guilty was 10 years.
The trial court sentenced defendant to a 10-year term, comprised of: (1) an upper term of eight years on the first count (the trial court finding that defendant had a substantial prior record, was on probation at the time, had violated a position of trust, and that the victim, defendants young daughter, was particularly vulnerable); and (2) a consecutive sentence of two years on the second count (the trial court finding it to be a distinct offense, committed at a separate time and place).
In my view, absent some agreement to the contrary, once a criminal defendant and the People enter into a negotiated agreement for the resolution of criminal charges and the defendant acknowledges that the agreement could result in his imprisonment for a certain number of years, the defendant should be deemed to have agreed that the law does not prevent that sentence if imposed after a proper exercise of discretion by the trial judge. Court would dismiss the appeal for the lack of a certificate of probable cause.