CA Unpub Decisions

Defendant, upon spotting an approaching police car, tried to jettison a package of rock cocaine. The police officer in the car, however, could see this action quite clearly. He retrieved the cocaine and arrested defendant.
Defendant was found guilty of possession of a controlled substance. (Health & Saf. Code, 11350, subd. (a).) Five 1-year prior prison term allegations (Pen. Code, 667.5, subd. (b)) and two strike prior allegations (Pen. Code, 667, subds. (b)-(i), 1170.12) were found true. Defendant was sentenced to a total of 30 years to life in prison. In this appeal, defendant contends:
1. Giving CALJIC No. 2.06 (Efforts to Suppress Evidence) violated due process because this instruction is argumentative and, on the facts of this case, irrational.
2. The trial court erred by denying defendants Romero motion.
3. The sentence constituted cruel and unusual punishment.
Court find no error. Hence, court affirm.

In April 1999, Nichols and Holgate entered into an agreement for the sale of real property. The sale was contingent upon the completion of certain preliminary development conditions. As of July 15, 2003, the conditions had not been satisfied and Nichols instructed the escrow holder to cancel the sale.
Nichols then filed an action for quiet title. First, the trial court granted summary judgment in favor of Nichols. Then, the trial court sustained the demurrers of Nichols and cross-defendant Tricia Cowan to Holgates second amended cross-complaint and granted Cowans motion to strike. The trial court entered judgment in favor of Nichols and Cowan.
Holgate appeals, contending the real estate purchase contract was ambiguous and the court improperly excluded parole evidence bearing on the meaning of the contract. Holgate urges that material issues of fact prevented granting the summary judgment motion and it was improper to sustain the demurrers to the Holgate cross-complaint and to grant the motion to strike.
Court conduct an independent review and affirm the judgment. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Eduardo C., the alleged father of Shayne F., contends that he was prejudiced by the juvenile courts failure to grant his request to continue a hearing pursuant to Welfare and Institutions Code section 366.26. He asserts that he had a statutory right to be present and that the courts failure to continue the hearing improperly denied him the opportunity to establish his paternity, in violation of his constitutional right to due process. Court find no abuse of discretion and no prejudicial violation of defendants constitutional or statutory rights.

On June 21, 2006, defendant was charged with a number of felonies which had occurred on June 19. On July 26, the trial court pointed out to defendant that he faced a prison term of over 18 years. The prosecutor made two offers to defendant, which she agreed to keep open until August 16, so defendant could discuss them with his lawyer. On August 16, after stating that he had had enough time to discuss his case with his attorney and denying that anyone had forced him to enter a plea, defendant pled guilty to assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1]and admitted having suffered a strike prior ( 667, subds. (b)-(i)) and a prior for which he served a prison term. ( 667.5, subd.(b).) As part of his plea bargain, defendant waived his right to appeal. He was sentenced to the agreed-to term of 5 years in prison. His request for a certificate of probable cause was denied by the trial court.
The judgment is affirmed.

Defendant pleaded guilty to one count of petty theft with a prior (Pen. Code, 666) and admitted that he had suffered three prior prison terms within the meaning of section 667.5, subdivision (b). In exchange, the parties agreed defendant would receive a stipulated sentence of six years, but the sentence would be suspended with defendant placed on formal probation under various terms and conditions.
Defendant subsequently violated probation by committing new offenses. His probation was revoked, and he was sentenced to the previously suspended sentence of six years in state prison.

Petitioner Tammie L. (Mother) is the mother of a two-year-old boy (Son 1) and a 17-month-old boy (Son 2). Mother filed this writ petition pursuant to California Rules of Court, rule 8.452(a) challenging an order setting a Welfare and Institutions Code section 366.26 permanency planning hearing as to the children. Mother contends that the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(6). For the reasons provided below, Court reject Mothers challenge and deny her petition.

In October 2004, 10-year-old V. R. reported that her brother, appellant, Michael R, who was then 17 years old, had been sexually abusing her for some time. According to V. R., Michael sometimes put his private part in her private part in the front of her body and in the back. Once, he put his mouth on her private part. Their 13-year-old brother, C. R., witnessed some of the acts of molestation.
Here, the victim testified that Michael sexually molested her on an ongoing basis for several years and her testimony was corroborated by C. R. Thus, we conclude the evidence was sufficient to sustain the courts findings.
Thus, following independent review of the record, we find that no reasonably arguable factual or legal issues exist.

On July 7, 2005, the Fresno County District Attorney filed a first amended information in superior court charging appellant with murder (Pen. Code, 187) with personal use of a firearm ( 12022.5, subd. (a)(1)) and intentional discharge of a firearm causing the death of another ( 12022.53, subd. (d)). On the same date, appellant was arraigned, pleaded not guilty to the substantive count, and denied the special allegations. The judgment is affirmed.

On October 13, 2005, the Kern County District Attorney filed an information in superior court charging appellant as follows: count Iassault with a firearm (Pen. Code, 245, subd. (a)(2)), a serious felony ( 1192.7, subd. (c)(8)); count IIcriminal threats ( 422) while armed with a firearm ( 12022, subd. (a)(1)); count IIIinfliction of corporal injury ( 273.5, subd. (a)); and count IVfalse imprisonment ( 236).
On October 17, 2005, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegation.
On November 23, 2005, appellant rejected a plea offer of two years imprisonment despite a maximum exposure of six years eight months in state prison. The terms imposed on counts II, III, and IV and the arming enhancement imposed on count II are each stayed pursuant to Penal Code section 654. In all other respects the judgment is affirmed. Thus, appellants total unstayed prison term is three years. The trial court is directed to prepare an amended abstract of judgment and to transmit certified copies of the amended abstract to all appropriate parties and entities.

Defendant got in a fight with an acquaintance over a stolen laptop computer. In the course of the fight, defendant cut his opponents arm with a pocket knife. Defendant was convicted of assault with a deadly weapon. On appeal, he contends (1) the trial court erred by instructing on flight because there was no evidence defendant fled the scene after the fight, (2) the trial court erred by failing to instruct that oral admissions should be viewed with caution, (3) one of the prior prison term enhancements must be stricken, (4) the deadly weapon enhancement must be stricken, and (5) the upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court strike one of the prior prison term enhancements and the deadly weapon enhancement. Court affirm in all other respects.

In October 2004, appellant, Israel Romero, pled no contest to felony possession of PCP (Health & Saf. Code, 11377, subd. (a)), and admitted allegations that he had (1) suffered a strike and (2) served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)). In January 2005, the court struck the strike and placed appellant on probation. In May 2006, appellant suffered a conviction of misdemeanor driving a motor vehicle while under the influence of alcohol or drugs (Veh. Code, 23152, subd. (a)), and based on that conviction, and on appellants admission of an allegation that he violated his probation by not remaining in contact with the probation department, the court denied reinstatement on probation and imposed a prison term of three years. At sentencing, the court also stated, Ill lift the stay on the 1202.44 fine of $200, given the violation and the state prison sentence.
The superior court is directed to issue an amended abstract of judgment which omits all reference to a fine under section 1202.44. In all other respects, the judgment is affirmed.

A modification decision.

Appellant, Bonnie Lee Neal, pled no contest to possession for sale of methamphetamine (Health & Saf. Code, 11378) and admitted a prior conviction enhancement (Health & Saf. Code, 11370.2, subd. (c)). On March 30, 2006, the court sentenced Neal to an aggregate term of five years: the middle term of two years on her possession conviction and a three-year prior conviction enhancement. On August 10, 2006, the court recalled the sentence, suspended criminal proceedings, and committed Neal to the California Rehabilitation Center. On appeal, Neal contends the court erred when it denied her motion to suppress. Court affirm.

On May 15, 2006, the court readjudged appellant, David R., a ward of the court (Welf. & Inst. Code, 602) after it found true an allegation that he committed battery on an officer (Pen. Code, 243, subd. (b)). On May 31, 2006, the court committed David to juvenile hall for 90 days, to be served consecutively to his current commitment, set the maximum term of confinement as two years and two months, reimposed various probation conditions, and credited him with 389 days of predisposition custody credit.
On appeal, David contends the probation conditions prohibiting him from (1) associating with anyone unless approved of by his parents or probation officer and (2) possessing deadly or dangerous weaponsare constitutionally vague and overbroad. David also contends, and the People concede, he is entitled to an additional day of predisposition custody credit. As we shall explain, although we reject Davids contention with respect to the prohibition against possession of dangerous and deadly weapons, we conclude the other probation condition should be modified to expressly state that he must have knowledge of whom his parents or the probation officer disapprove. Court also agree that the predisposition custody credits must be modified.