CA Unpub Decisions

Pursuant to Penal Code, section 1506, the People appeal from a habeas corpus order overturning Tyrone Coopers 1999 conviction for felony assault with an enhancement for personal infliction of great bodily injury and vacating Coopers sentence in a 2000 case because it was based, in part, on the 1999 prior conviction. The trial court granted Coopers habeas petition because it found that Cooper was denied the effective assistance of counsel in his 1999 case. Court reverse.

Defendant Douglas A. Diaz appeals his conviction by jury trial of committing a lewd act upon a child under age 14 (Pen. Code, 288, subd. (a)). He contends the court erred in instructing the jury with CALJIC No. 10.43, and in instructing the jury with a redacted version of CALJIC No. 2.71. Court reject the contentions and affirm.

Defendant and appellant Lonnie Lee Daniels appeals from a judgment revoking his outpatient status and recommitting him to Atascadero State Hospital. Appellant contends the Superior Court violated his substantive due process rights when it recommitted him based on a finding of dangerousness, without a concomitant finding of mental illness. Appellant also asserts Penal Code section 1609, on which the superior court based its ruling, is unconstitutional. Court affirm.

Alexis E. is the subject of a dependency that is entering its fourth year. Her mother, Jacqueline E. (hereinafter mother or appellant), has suffered from substance abuse difficulties which impaired her ability to provide for Alexis, and which was the proximate cause of the dependency. During the course of the dependency, appellant received approximately 22 months of reunification services. After a hearing that combined the six-month, the 12-month, and the 18-month reviews, the juvenile court decided to terminate further services, and not to order Alexis returned to her mothers custody. Appellant then sought to have the latter decision reconsidered, using the modification motion authorized by section 388 of the Welfare and Institutions Code.[1] The court denied the motion summarily, i.e., without conducting an evidentiary hearing. Mother appeals from both of these decisions, arguing that the courts decisions not to return custody of Alexis to her, and to terminate reunification services, are not supported by substantial evidence. Court conclude that these arguments have no merit. Court also conclude that the court did not err in its summary denial of mothers modification motion. In light of these conclusions, Court affirm.

Appellant Robert D. Ricardo, Jr., was found guilty after jury trial of the crimes of rape in concert, rape by the use of intoxicants, and rape of an unconscious victim. (Pen. Code, 264.1, 261, subd. (a)(3), 261, subd. (a)(4).) Appellant was sentenced to serve seven years in prison. He contends: (1) there is insufficient evidence to support the conviction for rape in concert, because there is insufficient evidence of the use of force or violence in accomplishing the rape; and (2) the jury instructions may have misled the jury with respect to the crime of rape in concert. Court reject these contentions and affirm.

Edward William Westphal appeals from a judgment entered after a jury convicted him of driving under the influence, (Veh. Code, 23152, subd. (a))[1]driving with a blood alcohol level above 0.08 percent, ( 23152, subd. (b)) and driving with a license that has been suspended for a prior driving under the influence offense. ( 14601.2, subd. (a).) He contends (1) an enhancement that was found by the jurors to be true is not supported by substantial evidence, and (2) the court erred when imposing a fine. We agree a fine was imposed incorrectly and order the appropriate modification. In all other respects, Court affirm.

John Wilbur appeals his convictions by a jury for transportation of methamphetamine, possession of 28.5 grams or more of methamphetamine for sale, possession of a firearm by a felon, and possession of ammunition by a felon. Wilbur argues that (1) the court erred when it denied his motion for judgment of acquittal on the firearm and ammunition counts, (2) his counsel was ineffective, (3) his sentence to concurrent terms violated Penal Code section 654,and (4) imposition of the upper term sentence for possession of methamphetamine violated his rights secured by the Sixth and Fourteenth Amendments because the sentence was based on factors not found by the jury. Court remand for resentencing in accordance with Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856] (Cunningham), and otherwise affirm the judgment.

A modification decision.

Defendant and appellant Adil Elmakhzoumi (appellant) appeals his conviction and sentence imposed following a jury trial. The jury found appellant guilty of sodomy of an intoxicated or drugged victim. Appellant contends the superior court abused its discretion by admitting evidence of a prior sex crime. Appellant also contends the jury instructions given reduced the prosecutions burden of proof. Court affirm.

Defendant was convicted following a jury trial of possession of a weapon while in custody (Pen. Code, 4502, subd. (a)). The trial court found that defendant suffered prior convictions and served three prior prison terms. He was sentenced to an aggregate term of seven years in state prison. In this appeal he claims that the trial court erred by admitting evidence of an uncharged violation of county jail disciplinary regulations, and violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296, by imposing an upper term. Court conclude that the court did not err by admitting the uncharged acts evidence, and no prejudicial sentencing error occurred. Court therefore affirm the judgment.

Defendant and appellant John Williams pleaded guilty to one count of driving with a willful or wanton disregard for the safety of others while fleeing from a pursuing police officer (Veh. Code, 2800.2, subd. (a)). He was sentenced to a two year midterm in state prison. On appeal, defendant contends the trial court erred in failing to find a factual basis for the plea and erred in denying probation and imposing the midterm sentence. Court find appellant waived his right to appeal the trial courts finding of a factual basis, and Court affirm the courts imposition of the two-year sentence.

Defendant Shawn Dupree McGriff was convicted by jury trial of vehicle theft (Veh. Code, 10851, subd. (a)) and possession of a stolen vehicle (Pen. Code, 496d, subd. (a)), and pled no contest to resisting a peace officer (Pen. Code, 148, subd. (a)(1)). In a bifurcated proceeding the trial court found true two prior prison term allegations (Pen. Code, 667.5, subd. (b)). Defendants sole contention on appeal is that the court erred in denying his Batson/Wheeler motion based upon the prosecutions improper use of a peremptory challenge during jury selection. Court reject the contention and affirm.

S. H. (Mother) and Clarence H., Sr. (Father)(collectively, Parents) appeal a juvenile court order terminating their parental rights to their son, Clarence H. (Clarence), born in October 2003. They contend the appointment of a guardian ad litem for Mother violated her rights to due process and was unsupported by substantial evidence, the court erred in summarily denying Mothers petition to modify, and the beneficial relationship exception to adoption should have been applied. The Sonoma County Human Services Department (Department) concedes the appointment of a guardian ad litem violated Mothers due process rights but argues the violation was not prejudicial.
The order terminating Parents parental rights is reversed and the matter is remanded for further proceedings consistent with this opinion.

Olando Graves (appellant) appeals, in propria persona, from an order determining the amount of child and spousal support arrearages he owes his former spouse, Lisa Graves (respondent).Court find no error and affirm the order.