CA Unpub Decisions

Appellant Barbara Hallen Allison contends the imposition of the upper term of imprisonment violates her constitutional rights as articulated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court disagree with Allisons contentions and affirm the judgment.

Appellant, Wilson Christopher Rojas, Jr., was charged in a criminal complaint filed October 28, 2003, with willfully failing to register as a sex offender (Pen. Code, 290, subd. (g)(2).).[1]On February 2, 2004, Rojas entered into a plea agreement in which he would admit the allegation. Rojas would serve no more than a year in county jail and be placed on felony probation. Rojas was advised of the consequences of his plea. Rojas was further advised of, and waived, his constitutional rights pursuant to Boykin/Tahl. Rojas was advised of his right to a preliminary hearing and the parties stipulated to a factual basis for his plea. Rojas pled no contest to the allegation. The judgment is affirmed.

Joseph B. appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26)[1]to his son, Michael. Appellant contends Michaels attorney had a conflict of interest such that the child received ineffective legal assistance. Appellant also argues the court was unable to ascertain Michaels current wishes such that there was insufficient evidence to support the courts finding that Michael was adoptable. On review, Court disagree with appellant and affirm.

Defendants Zenith Thuy and Kisman Moun were each convicted of several offenses, including one count of first degree murder based on the intentional firing of a gun from a car at someone outside the vehicle with intent to kill and three counts of willful, deliberate, and premeditated murder. The jury made numerous findings, including a special circumstance of murder by discharge of a firearm from a motor vehicle and intentional discharge of a firearm causing death or great bodily injury under Penal Code section 12022.53, subdivision (d) (all further statutory references are to this code) as to each of the foregoing crimes. Court agree it was improper to impose the parole revocation fines and modify the judgments to strike them but otherwise affirm the judgments.

Pursuant to a negotiated agreement, defendant Teddy Lawrence Dreher pleaded guilty to vehicle theft with a prior conviction (Veh. Code, 10851, subd. (a); Pen. Code, 666.5), reckless driving while fleeing a police officer (Veh. Code, 2800.2, subd. (a)), hit and run driving (Veh. Code, 20002, subd. (a)), and resisting arrest (Pen. Code, 148, subd. (a)(1)). Defendant also admitted that he had served seven prior prison terms. The trial court sentenced defendant to the stipulated prison term of five years. On appeal, defendant contends the trial court erred in imposing a $2,000 restitution fund fine. Court affirm the judgment.

Defendant Milao Rios Arellano pled no contest to robbery of an inhabited dwelling (Pen. Code, 213, subd. (a)(1)(A)) committed in concert with a codefendant on September 6, 2005, and being a felon in possession of a firearm ( 12021, subd. (a)(1)) that same day. He also admitted the allegation that he personally used a handgun in the commission of the robbery. ( 12022.5, subd. (a).) In exchange, the prosecutor agreed to a top and bottom sentence of six years in state prison. No agreement as to a restitution fine was stated. On appeal, defendant challenges the amount of the restitution fine the court imposed, and declares the order to pay attorney fees was unsupported by substantial evidence and must be stricken.
At sentencing the court imposed a $2,400 restitution fund fine ( 1202.4, subd. (b)) and stayed a fine in the same amount pursuant to section 1202.45. The court ordered $200 in attorney fees. The judgment is affirmed as modified.

David M. Johnson appealed his conviction of kidnapping (Pen. Code, 207, subd. (a)[1]), willful infliction of corporal injury on a spouse with a prior conviction ( 273.5, subds. (a) & (e)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), and making criminal threats ( 422).) With respect to the kidnapping and corporal injury on a spouse counts, the jury also found true allegations that defendant had inflicted great bodily injury ( 12022.7, subd. (a)). The court sentenced defendant on the kidnapping count to the upper term of eight years, and three years for the enhancement. It also imposed the upper term on the remaining counts, but stayed the terms pursuant to section 654.

Defendant contended his conviction for kidnapping must be reversed because the instructions on withdrawal of consent allowed the jury to convict him without finding the requisite intent. He also contended that in violation of Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham), the court imposed the aggravated term on each count based upon aggravating factors that must, absent defendants waiver, be submitted to a jury. The judgment is affirmed.

A jury found appellant Mehmet Sanduvac guilty of forcible rape and sodomy. (See Pen. Code, 261, subd. (a)(2), 286, subd. (c)(2).) Sentenced to six years in state prison for these offenses, he appeals, contending that the trial court erred in admitting evidence of his statement to police because it was taken in violation of his right to counsel pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and because it was involuntarily given. Court affirm the judgment.

Jimi Axus Suma was placed on felony probation after pleading guilty to one count of offering to manufacture hashish. (Health & Saf. Code, 11379.6, subd. (c).) On appeal and in a related petition for a writ of habeas corpus, Suma contends he received ineffective assistance of counsel because his trial counsel failed to preserve for appeal the issue of whether his processing of marijuana into hashish was an activity protected by the Compassionate Use Act of 1996 ( 11362.5). Court affirm the judgment and summarily deny the writ petition.

This appeal comes before us following defendants entry of a negotiated plea of guilty to a charge of grand theft (Pen. Code, 487, subd. (a)),[1] and his admission of an associated enhancement for excessive taking ( 12022.6, subd. (a)(1)). His counsel has raised no issues and asks this court to conduct an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant has been advised by counsel that he has the right to file a supplemental brief raising issues for our review. He has not done so. Upon independent review of the record, Court conclude that no arguable issues are presented for review, and affirm the judgment.

Appellant Keith L. White appeals from his conviction on charges of forcible rape, forcible oral copulation by future threats, and robbery. In his original appeal, he contended that the evidence was insufficient to support the charge of oral copulation through threat of future injury. We sent a letter to counsel asking them to address whether the 1998 changes in Penal Code section 288a,[1]which separated the various methods of committing forcible oral copulation into different subdivisions, were intended by the Legislature to be technical and not substantive. While the appeal was pending, the United States Supreme Court issued its decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Accordingly, we granted leave to file supplemental briefing on sentencing issues raised by Blakely. In August 2005, appellant sought, and we granted permission, to file additional supplemental briefing seeking review of purported nunc pro tunc orders issued by the trial court after notice of appeal was filed. The effect of the orders was to substantially increase appellants sentence on the robbery charge by increasing the enhancement. Court affirm the judgment.

Defendant appeals his conviction for second-degree murder (Pen. Code, 187, subd. (a)), arson with great bodily injury (Pen. Code, 451, subd.(a)), arson of an inhabited structure (Pen. Code, 451, subd. (b)), and possession of a flammable material (Pen. Code, 453, subd. (a)). He contends his conviction must be reversed because the trial court erroneously instructed the jury that it could find him guilty of both second-degree murder and arson. Court affirm.

A modification decision.

This action arises from the breakup of a business relationship between appellant Allen Huang, D.C., and respondents LTM Total Care, Inc., (LTM) and Flora Low. Appellant contends the trial court erred in granting LTM and Low a summary judgment on appellants complaint and in granting LTM summary adjudication on its cross-claim for trespass. Appellant also contends the jurys award of $81,360 on LTMs cross claim for breach of contract cannot stand, because the trial court erroneously instructed the jury on a theory of breach of an implied in fact contract when such a claim was not pleaded in the cross-complaint, and that the court further erred in denying him a new trial. Finding no error, Court affirm the judgment.