CA Unpub Decisions

This appeal involves sentencing issues following a 2003 plea to receiving stolen property (Pen. Code, 496, subd. (a)) in 2002 and the subsequent revocation of probation in 2006. Court strike imposition of a $20 court security fee and otherwise affirm the judgment.

Robert Wiley appeals an order of probation following his guilty plea to felony stalking (Pen. Code, 646.9, subd. (b)) and three counts of disobeying a court domestic relations order, a misdemeanor. ( 273.6, subd. (a).) The charges arose from his harassment of a former girlfriend. The trial court suspended imposition of sentence and granted appellant probation with terms and conditions including three hundred days confinement in county jail. Court have examined the entire record and are satisfied that appellate counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed.

The District Attorney of Los Angeles County filed a petition alleging that Alvaro J. (Alvaro) came within the provisions of Welfare and Institutions Code section 602 because he committed the crime of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a), a felony. The petition was amended to allege a misdemeanor violation of Health and Safety Code section 11377, subdivision (a) and Alvaro admitted the allegation. The juvenile court declared Alvaro to be a ward of the court and placed him on home probation with a one year maximum period of physical confinement.
On appeal, Alvaro contends that the juvenile court erred in denying his motion to suppress evidence and that the juvenile court could not set a maximum period of physical confinement because he was placed on home probation. We hold that the juvenile court properly denied Alvaros suppression motion and that the juvenile court erred in setting a maximum period of physical confinement. Accordingly, Court affirm the juvenile courts order declaring Alvaro to be a ward of the court and strike that part of the order setting a one year maximum period of physical confinement.

Michael Paul Stafford appeals an order terminating probation granted pursuant to Penal Code section 1210.1 ("Proposition 36"), and granting formal probation with terms and conditions in Cases Nos. 2005029362 and 2006013159.

In Case No. 2005029362, the prosecutor charged Stafford with possession of methamphetamine and possession of drug paraphernalia. (Health & Saf. Code, 11377, subd. (a) & 11364.) On February 23, 2006, Stafford was advised of and waived his constitutional rights and pleaded guilty to possession of methamphetamine. The trial court suspended imposition of sentence and placed Stafford on probation pursuant to Proposition 36, with terms and conditions. The trial court dismissed the remaining count.
Court have reviewed the entire record and are satisfied that Stafford's attorney has fully complied with her responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.

Gregory Mark Herron appeals the termination of probation pursuant to Penal Code section 1210.1 ("Proposition 36"), and sentence to two years' imprisonment. Court appointed counsel to represent him in this appeal. After counsel's examination of the record, she filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.)

On April 9, 2007, Court advised Herron that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. Court have received a response from him contending that he possessed only a residue of methamphetamine, and that many of the charged violations of Proposition 36 probation were untrue. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123 to 124, Court present a factual and procedural summary of the case, and a brief discussion of Herron's contentions. Court affirmed.

In this matter, Court affirm the rape (Pen. Code, 261, subd. (a)(2)) and kidnapping to commit rape (Pen. Code, 208, former subd. (d) (Stats. 1992, ch. 163, 101, p. 781), reenacted as Pen. Code, 209, subd. (b)) convictions of defendant Morris Harmon, Jr., which were based primarily on deoxyribonucleic acid (DNA) evidence. Court conclude defendant did not receive ineffective assistance of counsel when his attorneys failed to raise a confrontation clause challenge to a report prepared by the nurse who performed a sexual assault examination on the victim and obtained biological samples for DNA testing. Court further conclude defendants Fourth Amendment rights were not violated when the DNA profile of biological samples previously taken from him and stored in a convicted offender database was compared with the DNA profile obtained from biological samples taken from the victim. Finally, Court conclude the trial court did not err in failing to instruct the jury on lesser included offenses.

Two Sacramento County park rangers were patrolling the American River Parkway on the evening of October 12, 2004, following up on complaints that transients were hanging out and drinking to the point of intoxication and becoming belligerent and making [bicycle commuters] feel very unsafe. They approached a group of four people, which included defendant Dale Dugger, and asked them to leave the bike trail. Defendant yelled profanities at the rangers and refused to comply. The ensuing confrontation, which defendant and the rangers describe differently, resulted in defendants arrest. On appeal, defendant argues he is entitled to reversal because: (1) the court erred in denying his Batson/Wheeler motion; (2) the court abused its discretion in three evidentiary rulings; (3) the prosecutor committed misconduct in closing argument; (4) the court erred in failing to instruct the jury on the specific intent and the unanimity requirement; and (5) he was prejudiced by cumulative error. Court affirmthe judgment.

A jury convicted defendant Ross Brenton Haley of transporting marijuana (Health & Saf. Code, 11360, subd. (a)), driving under the influence of alcohol (Veh. Code, 23152, subd. (a)), and speed exhibition. (Veh. Code, 23109, subd. (c).) The trial court suspended imposition of sentence, placed him on probation for three years, and ordered that he serve 30 days in the county jail.
The issues raised on appeal relate solely to the medical marijuana defense defendant raised to the charge of transporting marijuana. ( 11360.) He claims section 11362.77 is an unconstitutional amendment of an initiative statute and is violative of the equal protection clause, the trial courts refusal to consider relevant legislative history in construing section 11362.77 resulted in instructional error, and the trial court erred by excluding defense evidence as inadmissible hearsay. Court find no prejudicial error and affirm the judgment.

This litigation arose between a general contractor and the electrical subcontractor after they built a service station and restaurant in Ripon. By special verdict, the jury found the general contractor liable to the electrical subcontractor under both contract and rescission theories. On appeal, the general contractor asserts, mainly, that the evidence does not support the contract remedies. It does not likewise assert the restitutionary relief available under the rescission theory was flawed. Court conclude the general contractor has failed to show prejudicial error and, therefore, affirm.

A jury convicted defendant Michael Aaron Witkin of resisting an executive officer by use of force and violence (Pen. Code, 69; undesignated section references are to the Penal Code) and battery on a peace officer, a misdemeanor ( 243, subd. (b)). Sentenced to state prison, defendant appeals. He contends (1) the trial court erroneously denied his motion for a new trial sought on the ground of ineffective assistance of counsel in that he failed to request a continuance and (2) trial counsel rendered ineffective assistance in that he promised in opening statement to introduce certain evidence but failed to do so. Court affirm.

The probation office reported that the victim sought $9,292.13 in restitution, comprised of (1) $8,094.75 and $127.38 that State Farm Insurance and the victim paid to the victims credit union to pay off the loan for the motorcycle, (2) the victims $500 insurance deductible, (3) $450 in towing and impound fees, and (4) $120 for the day of work the victim missed. Defendant contends the trial court erred in awarding $9,292.13 in victim restitution. In his view, the victim did not suffer any economic loss as the result of defendants crimes, and there is no substantial evidence to support the amount awarded. Court affirm the judgment.

A jury convicted appellant Fabian Fong Acosta of felony child abuse (Pen. Code, 273a, subd. (a);[1]count 1), misdemeanor delaying, resisting or obstructing a peace officer (resisting arrest) ( 148, subd. (a); count 2) and felony intimidation of a witness by force or threat of force or violence ( 136.1, subd. (c)(1); count 3). The court suspended imposition of sentence, placed appellant on four years probation and made various orders, including that appellant pay $900 for the cost of the preparation of the probation officers report (RPO).
On appeal, appellant contends (1) the evidence was insufficient to support his conviction of felony child abuse; (2) the court erred in failing to instruct the jury, sua sponte, on self defense with respect to the charge of resisting arrest; and (3) the court erred in imposing the RPO cost order. Court modify the judgment to reduce the count 1 offense to a misdemeanor, vacate the RPO cost order and remand for further proceedings.

Appellant, Jose Manuel Guigosa, was convicted after a jury trial of second degree burglary of a vehicle (Pen. Code, 459, count one) and receiving stolen property (Pen. Code, 496, subd. (a), count two). On June 14, 2006, the trial court suspended imposition of sentence and placed appellant on probation upon various terms and conditions. On appeal, appellant contends the trial court erred in admitting into evidence appellants possession of other items that were not related to the allegations. Appellant also claims prosecutorial misconduct.
The judgment is affirmed.

A jury convicted Raymond Avila of three counts of carjacking (counts 4, 5 and 6/Pen. Code, 215, subd. (a)) and one count of attempted kidnapping (count 7/Pen. Code, 664/207). On June 13, 2006, the court sentenced Avila to an aggregate term of nine years two months as follows: the midterm of five years on count four, consecutive sentences of one year eight months on counts five and six and a consecutive ten months on count 7. On appeal, Avila contends the evidence is insufficient to sustain his conviction on the carjacking offense he was convicted of in count 6. Court affirm.