CA Unpub Decisions

Appellant Jonathan Louis Taylor was charged in a four-count complaint with unlawfully driving or taking a vehicle, resisting an executive officer and drunk driving. He accepted a negotiated plea agreement and pled guilty to unlawfully driving or taking a vehicle and to driving with a 0.08 percent or higher blood alcohol level. (Veh. Code, 10851, subd. (a); 23152, subd. (b).) The remaining counts were dismissed. At the change of plea hearing, the parties stipulated to a blood alcohol level of 0.08 percent.
As Court explain, appellants challenge to the probation condition revoking his driving privileges is properly rejected because his appeal from the October 25, 2006, sentencing order is untimely. The October 25, 2006, sentencing order is final. Appellant cannot belatedly challenge the conditions of probation in a direct appeal from subsequent orders concerning an unrelated violation of parole and denial of an unrelated modification motion. (People v. Preyer (1985) 164 Cal.App.3d 568, 576 (Preyer).)

Defendant Isaac Anthony Delgado appeals from a judgment entered after a jury found him guilty of carrying a concealed dirk or dagger, street terrorism, and assault with a deadly weapon. The jury found true the enhancement allegations that defendant personally used a knife and inflicted great bodily injury in the commission of the assault with a deadly weapon offense, and committed that crime 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 any criminal conduct by members of that gang. Defendant contends the enhancement finding that he committed the assault with a deadly weapon for the benefit of a criminal street gang must be stricken because (1) the trial court erroneously admitted an expert witnesss testimony regarding defendants specific intent, and (2) defendant received ineffective assistance of counsel. Defendant also contends the trial court erred by imposing upper term sentences based on aggravating factors found true by the trial court, not by a jury.
Court affirm. The trial court did not err in admitting the prosecutions expert witness testimony because the expert did not testify defendant specifically intended to benefit a criminal street gang in the commission of the assault with a deadly weapon offense.

Defendant was convicted of several charges arising from an incident in which he threatened a woman with a gun in the presence of her children. He argues various errors, including prosecutorial misconduct, instructional error, and a lack of substantial evidence. Court find no merit in any of these arguments and affirm.

Andrea G., a minor, appeals from an order declaring her a ward of the court. She contends the trial court abused its discretion because it did not consider evidence she would lose the services she was receiving as a dependent once declared a ward of the court. Court disagree and affirm the order.

Elissa R. (Mother) appeals after the juvenile court terminated her parental rights and freed her children R. W. and R. P. for adoption at a hearing pursuant to Welfare and Institutions Code[1] section 366.26 (.26 hearing). She contends the juvenile court erred in allowing two witnesses to testify by telephone and by concluding that she had not established an exception to the statutory preference for adoption. Court affirm.

Plaintiff Robert Kinann (appellant) appeals a summary judgment in favor of defendant California Insurance Guarantee Association (respondent) in his action against it for breach of the duty to assume the obligations of appellants insolvent insurer Environmental and Casualty Insurance Company (ECIC) pursuant to Insurance Code section 1063.1. Appellant contends summary judgment was improperly granted because the court erroneously determined there was no potential for coverage under the subject commercial general liability (CGL) policy of the claims against appellant in an underlying action. Court reject the contention and affirm.

A modification decision.

Appellant Jim Hogue (Father) and respondent Linda Hogue (Mother) shared joint physical and legal custody of their son Justin. Father moved to modify the joint legal custody order to require mutual agreement of the parents on certain specified matters, and for two other orders: that Justin attend a certain school and that Mother share in transportation of Justin. Without notice to the parties, the trial court ordered that Mother shall have sole legal custody of Justin. The court also denied Fathers school attendance request and failed to rule on Fathers transportation request. Court affirm the denial of the school attendance request, but reverse on the legal custody and transportation issues.

On September 1, 2005, defendant, then 19 years old, was charged with residential burglary (Pen. Code, 459) and receiving stolen property (Pen. Code, 496, subd. (a)). The charges followed defendants arrest for breaking through the locked front door of the home of an acquaintance, and taking a two-foot-tall marijuana plant, two dried brown poppy pods and an 18-inch folding knife. Defendant explained he was pissed at the victim because of statements made by the victim about the defendants girlfriend. Defendant pleaded guilty to the charge of receiving stolen property. The charge of burglary was dismissed with a Harveywaiver. (People v. Harvey (1979) 25 Cal.3d 754.) The matter was put over for sentencing and referred to the probation department for a sentencing report. As modified, Court affirm the order

Victoria B. petitions for writ relief from an order terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing for her son, Tyrone T. Court deny the petition.

In our original opinion in this case, filed on December 22, 2004, we reversed defendants sentence and remanded for resentencing in compliance with Blakely v. Washington (2003) 532 U.S. 296 (Blakely). On September 7, 2005, the California Supreme Court transferred the case to us, with directions to vacate our prior decision and reconsider in light of People v. Black (2005) 35 Cal.4th 1238 (Black I). We filed a new opinion on December 7, 2005, affirming the sentence. Then, the United States Supreme Court overruled Black I, granted certiorari in this case, and vacated the judgment for further consideration in light of Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham). Defendant and appellant David S. Liddell appeals from the judgment entered following a jury trial that resulted in his conviction of three counts of second-degree robbery and one count of attempted second-degree robbery. He contends: (1) his post-arrest statement to police was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the out-of-court identification process was unduly suggestive; (3) the fact of firearm use cannot be used both as an enhancement and to impose the upper term; (4) the trial court abused its discretion in refusing to strike one of the alleged three strikes priors (Pen. Code, 667, subds. (b)-(d), 1170.12, subds. (a)-(d));and (5) the trial courts selection of the upper term violated his Sixth Amendment right to a jury trial under Blakely. Court affirm.

In our original opinion in this case, filed on April 15, 2005, we reversed defendants sentence and remanded for resentencing in compliance with Blakely v. Washington (2003) 542 U.S. 296 (Blakely). On September 7, 2005, the California Supreme Court transferred the case to us, with directions to vacate our prior decision and reconsider in light of People v. Black (2005) 35 Cal.4th 1238 (Black I). We filed a new opinion on December 12, 2005, affirming the sentence. Then, the United States Supreme Court overruled Black I, granted certiorari in this case and vacated the judgment for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Court hereby issue the following decision:
Defendant and appellant Jesus Xavier Acosta appeals from the judgment entered following a jury trial that resulted in his conviction of voluntary manslaughter. He contends: (1) the trial court prejudicially erred in failing to give CALJIC No. 2.01; and (2) the trial court committed sentencing error under Blakely and its progeny. Court affirm.

Defendant and appellant David Knott, Jr. appeals from the judgment entered following his plea of no contest to the charge of possession of a controlled substance. Following our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), Court affirm.

A jury convicted defendant Emil Morad Ogg of single counts of attempted murder, corporal injury on a cohabitant, and assault with a deadly weapon, arising from an attack by defendant on his live-in girlfriend, Diana D. (Diana). (Respectively, Pen. Code, 664/187, 273.5, subd. (a), 245, subd. (a)(1).) The jury also sustained allegations of great bodily injury and weapon use. ( 12022.7, subd. (e), 12022, subd. (b)(1).)
Sentenced to 29 years in prison, defendant appeals. He contends the trial court erroneously: (1) excluded expert psychological testimony regarding his mental state; (2) denied a mistrial where the prosecutor insinuated that defense counsel had scripted defendants testimony; (3) refused to appoint conflict counsel to investigate a prior conviction of defendants that was deemed a strike under the Three Strikes law; (4) ordered defendant to pay defense counsel costs; and (5) violated his jury trial and related due process rights by sentencing him to upper terms.
Court affirm the judgment in all respects but one: we reverse the order involving the payment of defense counsel costs. Court also direct the trial court to appoint a nonconflicted counsel in a habeas corpus proceeding regarding the challenged prior conviction.