CA Unpub Decisions

The Orange County Department of Child Support Services (DCSS) appeals from an order that directed Larry G. DeBarge, Kristine E. DeBarge, and Michael DeBarge, a minor, to submit to genetic testing to determine if Larry is the childs father. DCSS argues the superior court has no jurisdiction to order genetic testing where, as here, a dissolution judgment establishing paternity has been neither challenged nor set aside. Court agree and reverse.

Defendant filed a notice of appeal from a judgment of conviction after he pled guilty to two felony counts of possessing heroin and methamphetamine for sale. A certificate of probable cause was denied by the trial court. (See Pen. Code, 1237.5; Cal. Rules of Court, rule 8.304(b).) We appointed counsel to represent Laverty on appeal. Counsel filed a brief that set forth the facts. Counsel did not argue against Laverty, but advised the court no issues were found to argue on his behalf and asks that we review the record for error as mandated by People v. Wende(1979) 25 Cal.3d 436. Laverty was given 30 days to file written argument on his own behalf. That period has passed, and Court have received no communication from Laverty. Court dismiss the appeal.

Defendant was found guilty at a jury trial of resisting and battering a police officer without causing injury and possession of controlled substances and was sentenced to three years, eight months in state prison. He was also ordered to pay fines, restitution, and attorney fees. On appeal, he challenges the trial courts exclusion of testimony that he claims bore directly on the credibility of the victim-officer. He also asserts trial counsel was ineffective and the court erred in imposing the aggravated term in violation of Blakely v. Washington (2004) 542 U.S. 296, and ordering him to pay attorney fees. In a petition for a writ of habeas corpus which Court have ordered considered with this appeal, defendant asserts his trial counsel was ineffective for opening the door to the prosecutors exploitation of petitioners prior incarceration.

A jury convicted defendant of four counts of aggravated sexual assault (Pen. Code, 269)against Y. D., his very young daughter. The assaults consisted of rape, sodomy, sexual penetration with a foreign object, and oral copulation. The trial court sentenced defendant to 60 years to life in prison, consisting of four consecutive terms of 15 years to life imprisonment for each conviction, and ordered him to pay restitution.
On appeal, defendant maintains that he was incompetent to stand trial, and that the trial court erred in permitting in custody statements he made to a social worker following his arrest to be introduced in evidence against him.
Court find no error requiring reversal, and therefore affirm the judgment.

Defendant pleaded no contest to charges of being a felon in possession of a firearm (Pen. Code 12021, subd. (a)(1)[1]), possession of a short barreled shotgun ( 12020, subd. (a)(1)), and being a convicted person in possession of ammunition ( 12316, subd. (b)(1)), and was placed on probation for three years. He appeals, contending that the trial court improperly denied his motion to suppress evidence pursuant to section 1538.5. Court affirm.

Defendant appeals his conviction by guilty plea to false imprisonment. (Pen. Code, 236.) He was sentenced to two years in state prison. Defendants counsel advises this court that her examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel has advised her client in writing that a Wende brief was filed and that defendant had the right to file a supplemental brief in this case within 30 days. No such brief was filed. Court agree that the record reveals no arguable issues and affirm.

Appellant appeals a judgment denying his petition for a writ of administrative mandamus by which he sought to vacate a decision of Steven Gourley, as director of the California Department of Motor Vehicles (DMV), that suspended his drivers license for driving under the influence of alcohol. He contends the trial court abused its discretion in refusing to strike the DMVs answer and opposition to his petition and in denying him attorney fees. He also contends the evidence to support the suspension of his license was inadmissible.
Appellant contends the trial court abused its discretion in denying him attorney fees under Government Code section 800. Court find no abuse because the courts statement of decision and judgment were not in appellants favor.
The judgment is affirmed.

Defendant Richard L. Wilson appeals from a judgment imposing a three-year sentence following revocation of his probation at a contested hearing. Defendants attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. Defendant has been advised of his right to file a supplemental brief and has not done so. Court find no arguable issue and affirm.

Defendant appeals from a judgment entered following his no contest plea to first degree robbery (Pen. Code, 211), his admission that he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b) and that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of Penal Code section 186.22, subdivision (b)(1)(B).
Court agree with appellant that Court cannot speculate how the agreed to term of 21 years was reached and Court must, therefore, remand the matter to the trial court for resentencing.[
The matter is remanded for resentencing and in all other respects the judgment is affirmed.

A jury convicted defendant of corporal abuse of a cohabitant and assault with a deadly weapon with enhancements. Sentenced to nine years in state prison, defendant contends on appeal the trial court abused its discretion in denying a continuance during trial so that the defense could attempt to obtain a statement from a potential witness; abused its discretion in excluding certain medical evidence related to the victims child; and committed judicial misconduct by improperly scolding the recanting victim for violating in limine orders, and allowing the prosecution to tell the jury that she failed to obey court orders to appear for trial. None of these contentions has merit. Court affirm the judgment.

On February 16, 2006, defendant was convicted of attempting to rob a fellow student at school. (Pen. Code, 664 & 211, a felony.) At the time of the attempted robbery, January 10, 2006, defendant was on a one-year grant of probation under a deferred entry of judgment for being in possession of a knife at school nine months earlier. ( 626.10, a felony.) On March 3, 2006, the juvenile court sentenced him to 53 to 106 days for the two offenses, granted him credit for 53 days time served, and released him to the custody of his aunt on terms and conditions. One of the terms was that he, Not associate with anyone who has possession of weapons of any kind, including but not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, and knives. At sentencing, defendant did not object to any of the terms.
The term of defendants probation agreement reading Not associate with anyone who has possession of weapons of any kind, including but not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, and knives is modified to read Not associate with anyone who he knows possesses weapons of any kind, including but
not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, and knives.
The judgment is affirmed as modified.

Charged with three counts of sexual misconduct against his stepdaughter, defendant Ioan Holbea entered a negotiated plea of no contest to the charge of committing a lewd and lascivious act upon a child under 14 (Pen. Code, 288, subd. (a))and received a sentence of six years in state prison. On appeal, defendant contends his sentence must be vacated and the matter remanded because the trial court erred in (1) finding him presumptively ineligible for probation under section 1203.066, and (2) denying probation in part based on the courts own unsupported diagnosis that defendant suffers from obsessive-compulsive disorder, contrary to the opinion of the court-appointed psychologist. Defendant also contends his trial counsel was ineffective for failing to bring these matters to the courts attention at sentencing, and that the court erred in imposing a $20 court security fee.
Court agree that the trial court erred in finding that section 1203.066 rendered defendant presumptively ineligible for probation, and remand for the courts further exercise of its discretion in determining whether to grant probation.

In this drive-by shooting case, defendant Phanhnha Xabandith contends the trial court erred in instructing the jury on the issue of constructive possession and in not instructing the jury on the law of accomplices. In addition, defendant contends there was insufficient evidence he possessed five firearms. Finding no merit in these arguments, Court affirm the judgment.

A jury convicted Hilario Aguirre of two counts of committing a lewd act upon a child (counts 2 and 3) in violation of Penal Code section 288, subdivision (a). The jury also found true the allegations charged with both counts that in committing these acts Aguirre (1) used matter depicting sexual conduct under section 1203.066, subdivision (a)(9); and (2) had substantial sexual conduct with a child under 14 years old under section 1203.066, subdivision (a)(8). The court sentenced Aguirre to a total of eight years in prison. He received consecutive sentences for the midterm of six years for count 2 and one-third the midterm, two years, for count 3.
Aguirre appeals, contending the court abused its discretion by (1) excluding credibility evidence that was highly probative of his defense and was neither cumulative nor confusing of the issues presented to the jury; and (2) failing sua sponte to instruct the jury of a lesser-included offense that was supported by the evidence. Court affirm.