CA Unpub Decisions

A modification decision.

In addition to other crimes not relevant here, a jury convicted defendant of transportation of over 28.5 grams of marijuana (Health & Safe. Code, 11360, subd. (a) (count 1)) and possession of marijuana ( 11357, subd. (c)), the lesser included offense of count 2 ( 11359 (possession of marijuana for sale)). On appeal, defendant contends, as to count 1, that the trial court erred in not sua sponte instructing the jury on possession of marijuana as a lesser included offense. He further asserts the trial court erred in permitting his conviction of both transportation of marijuana on count 1 and, separately, its lesser included offense of possession of marijuana on count 2. Court conclude that defendants possession of marijuana was not a lesser included offense of his transportation of marijuana under either the elements or accusatory pleading tests; therefore, neither of defendants contentions have merit, and the judgment below is affirmed.

Defendant (mother) is the mother of five young children who were made dependents of the juvenile court. Mothers parental rights were terminated, and she appeals, asserting that the findings of adoptability as to three of the children were not supported by the evidence. Mother further argues that the beneficial relationship exception or the sibling relationship exception should have applied to prevent termination of her parental rights. Court affirm.

On January 31, 2001, appellant Rogelio Robles was convicted of voluntary manslaughter (Pen. Code, 192, subd. (a).) On March 8, 2001, the trial court sentenced Robles to the aggravated term of 11 years. Following a timely appeal, in an unpublished opinion dated January 22, 2003, this court reversed Robless conviction based on instructional error. Following a retrial, on December 8, 2003, Robles was again convicted by a jury of voluntary manslaughter. On May 5, 2004, the court sentenced Robles to the aggravated term of 11 years. On March 16, 2007, Robles filed a supplemental opening brief, again arguing that under Cunningham the imposition of the aggravated term based on facts not found true by a jury violated his right to jury under the Sixth and Fourteenth Amendments. Robles also contends that California case law and the Fifth Amendments double jeopardy clause require that his aggravated term be reduced to the middle term. Court find that the court committed Blakely error and remand for further proceedings. In all other respects, Court affirm.

Appellant was a suspect, along with five others, in the fatal beating of a man who happened to ride by on his bicycle one night. The victim, John Emery, was found dead from severe head wounds on a rural dirt driveway near Chowchilla. When appellant was questioned about the homicide, he asked the investigating officer whether a deal could be worked out in exchange for his testimony. The appellant was told that if he was not a participant in the murder, the district attorney might be willing to make such a deal, but it would depend on all the information obtained from the investigation. Appellant then began talking to the officer about the incident, portraying his own role as primarily that of a bystander. However, in the course of the investigation, the other perpetrators told the police that appellant was the one who repeatedly hit Emery in the head with a baseball bat. No immunity was granted to appellant. On the date of trial, when appellants motion to suppress his extrajudicial statements was denied, appellant elected to plead guilty to voluntary manslaughter. Following his guilty plea, the appellant filed this appeal in which he contends the trial court erred by (1) denying his motion to suppress, and (2) failing to strike a prior conviction. Court affirm the judgment.

On September 18, 2006, appellant, pled no contest to a felony allegation in a criminal complaint that he feloniously interfered with an executive officer in the performance of his duties (Pen. Code, 69).
Prior to taking appellants change of plea, the court advised appellant of the consequences of his plea, including the fact he faced a maximum prison term of three years and that he would have to pay a restitution fine. The court advised appellant of his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Appellant waived these rights as well as his right to a preliminary hearing and a probation report prior to sentencing. The parties stipulated there was a factual basis for appellants plea.
The court accepted appellants plea. The court suspended imposition of sentence and placed appellant on felony probation for three years and imposed a restitution fine as well as other fines and penalty fees. Appellant obtained a certificate of probable cause and filed a timely notice of appeal.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel, indicating that appellant was advised he could file his own brief with this court. On January 22, 2007, Court invited appellant to submit a letter stating any grounds on appeal he wished this court to consider.

Douglas Miles, the managing partner of a law firm, appeals from the trial courts order denying his motion to compel arbitration of Diana Abou-Khalils third through seventh causes of action. The court determined Abou Khalil, the firms executive assistant, did not have to arbitrate her claims brought against Miles in his individual capacity for assault, battery, intentional infliction of emotional distress, and violations of Civil Code sections 51.7 and 52.4. Finding none of Miless contentions on appeal have merit, Court affirm the order.

An Information Summary dated June 16, 2005 charged defendant Hugh Trung Strachan with two counts of possession of a controlled substance for sale (Health & Saf. Code, 11378). After the trial court denied defendants motion to suppress evidence, defendant pleaded no contest to both counts pursuant to a plea agreement. On January 12, 2006, the court suspended imposition of sentence and placed defendant on three years probation subject to various terms and conditions. On appeal, defendant claims the court erred in denying his motion to suppress. Court disagree and affirm the judgment.

A modification decision.

A jury convicted defendant of four counts of committing lewd acts with his six year old niece. The sole issue raised in defendants original appeal was whether the trial court abused its discretion in admitting a videotaped police interview of the niece. Court found that the evidence was properly admitted, and affirmed the judgment. Court subsequently granted defendants petition for rehearing to consider the impact of the decision in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely), upon defendants sentence. In a nonpublished opinion, People v. Wilson (Nov. 24, 2004, A102205) (Wilson I), Court concluded that the principal, upper term sentence of eight years imposed upon defendant for his conviction in count one must be vacated, and the matter returned to the trial court for resentencing. In all other respects, Court affirmed the judgment.

Under a plea agreement, defendant pleaded guilty to committing a lewd and lascivious act on a child under the age of 14 and admitted a special allegation that he engaged in substantial sexual conduct with the victim. The trial court sentenced him to the upper term sentence of eight years. Defendant appealed from the imposition of the upper term sentence, contending that the trial court committed prejudicial error by: (1) disregarding significant mitigating factors shown in the record, and (2) relying on aggravating circumstances neither admitted in his plea nor proven beyond a reasonable doubt to a jury. We affirmed the judgment in an opinion issued on September 29, 2005.
On February 20, 2007, the United States Supreme Court granted certiorari, vacated the judgment, and remanded the case to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court have recalled the remittitur and afforded the parties an opportunity to file supplemental briefs on the effect of Cunningham on the issues presented. Court now vacate defendants upper term sentence and remand the case to the trial court for the limited purpose of conducting sentencing proceedings in accordance with the requirements of Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely) and Cunningham.

Defendant appeals his conviction by jury verdict of one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and one count of possession of a hypodermic needle and syringe. (Bus. & Prof. Code, 4140.) In a bifurcated proceeding, the court found true the allegation that he had served three prior prison terms. (Pen. Code, 667.5, subd. (b).) Appellant contends his attorneys failure to move to suppress the contraband constituted ineffective assistance of counsel. He also asserts three sentencing errors: (1) improper dual use of facts; (2) failure to consider his drug addiction as a factor in mitigation; and (3) imposition of an upper term contrary to Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
The judgment is reversed and remanded with directions to resentence appellant pursuant to the holding of Cunningham v. California, supra, 127 S. Ct. 856. In all other respects the judgment is affirmed.

Defendant, appeals from the judgment entered following his conviction, by jury trial, for special circumstance first degree murder and robbery, with firearm and gang enhancements (Pen. Code, 187, 190.2, subd. (a)(17), 211, 12022, 12022.53, 186.22).[1] Sentenced to state prison for life without possibility of parole plus 25 years to life, Howard claims there was trial and sentencing error. The judgment is affirmed as modified.

A judgment dissolving the marriage of appellant Priscilla Mamaril (Priscilla) and respondent Eulogio Mamaril (Eulogio) was entered in 1984. A child support order was entered directing Eulogio to pay certain sums to Priscilla for the support of Priscillas and his children Ronaldo, Eugene, and Ervin. Over the ensuing years, Eulogio failed to pay Priscilla all of the child support to which she was entitled. In 2005, Eulogio filed an order to show cause seeking a determination of the amount of child support he was in arrears and requesting a payment plan. After a hearing on the order to show cause, the trial court found, among other things, that Eulogio had fully paid child support for the years 1995, 1996, 1997, and 1998, although the payments had been made directly to the children and not to Priscilla, and that Priscilla was estopped from challenging the manner in which Eulogio paid child support during those years because she participated in the procedure without objection. The trial court ordered Priscilla and Eulogio to bear her and his own attorney fees. Priscilla appeals both as to the trial courts determination that Eulogio fully paid child support for the years 1995, 1996, 1997, and 1998, and its denial of her attorney fees. Court reverse those parts of the trial courts order and remand this case to the trial court for a recalculation of Eulogios child support obligation for 1995, 1996, 1997, and 1998, and for a reconsideration of Priscillas request for attorney fees. The order is otherwise affirmed.