CA Unpub Decisions

Appellant challenges his conviction of unlawfully driving or taking a vehicle and giving false information to a police officer on the grounds of instructional and sentencing error. Court conclude the trial court was not required to instruct upon a violation of Penal Code section 499b as a lesser included offense of Vehicle Code section 10851, as taking a motor vehicle is no longer within the scope of Penal Code section 499b. We must remand for resentencing because the trial court imposed an upper term based on facts not found by the jury. Appellants disproportionality claim is moot and was forfeited by his failure to raise it in the trial court.

jury found defendant and appellant Ricky Tommy Aragon (hereafter defendant) guilty as charged of attempted second degree robbery (Pen. Code, 664/211) (count 1), assault with a firearm (Pen. Code, 245, subd. (a)(2)) (count 2), and participating in a criminal street gang (Pen. Code, 186.22, subd. (a)) (count 3). The jury further found true the allegation, in connection with each count, that in the commission of the alleged offense a principal was armed with a firearm (Pen. Code, 12022, subd. (a)(1)).[1]

The district attorney prosecuted defendant on the theory that he had aided and abetted Alexander Gamez, the actual perpetrator, in the commission of the noted crimes, all of which occurred during a single incident on December 22, 2003, and involved a single victim, Craig Sullivan. At the conclusion of their joint trial, the jury was unable to reach verdicts with respect to Gamez on any of the three charges but found defendant guilty as charged on all three counts.

In this appeal, defendant challenges the sufficiency of the evidence to support his conviction on count 3, the criminal street gang charge, and to support the jurys true finding on the related section 12022, subdivision (a)(1) enhancement. In a supplemental brief, defendant asks that we take judicial notice of the subsequent retrial of Alexander Gamez in which the prosecutor dismissed the charges midtrial when the victim, Craig Sullivan, stated that Gamez definitely was not the person who had assaulted and attempted to rob him. Because defendant was prosecuted as an aider and abettor of Gamez, and the charges against Gamez were dismissed, defendant contends that Court must reverse the judgment and dismiss the criminal street gang charge. Defendant also contends that the jury should have been instructed on the need for unanimity because Gamez fired four shots at Sullivan, each of which defendant contends constituted a separate act of assault with a firearm but the prosecutor charged only one crime based on those acts. Moreover, defendant contends that the trial court should have stayed execution of the sentence imposed on defendants attempted robbery conviction because that crime and the crime of assault with a firearm were based on the same criminal act within the meaning of section 654. As his final claim, defendant contends that the trial court violated his Sixth Amendment right to have a jury determine all factual issues because in imposing the upper term sentence on count 2 and the consecutive sentences on counts 1 and 3 the trial court relied on facts other than those the jury found true at trial.
Court agree with defendants claim under section 654 and in light of Cunningham v. California (Jan. 22, 2007, No. 05-6551) U.S. [127 S.Ct. 856] must also agree with defendants challenge to the trial courts imposition of the upper term sentence. Therefore, Court vacate defendants sentence and remand the matter to the trial court for further proceedings and with directions that in resentencing defendant, the trial court must stay execution of the sentence imposed on count 1. The judgment is otherwise affirmed.

On August 27, 2003, a seven-count indictment was filed against Ryan Ducut, Diem Lam, and Tai Tran. Ducut was charged with three counts of selling, distributing, or transporting a controlled substance (Health & Saf. Code, 11379, subd. (a)), three counts of possessing a controlled substance for sale (Health & Saf. Code, 11378), and one count of conspiring with Lam and Tran to sell, distribute and transport a controlled substance. (Pen. Code, 182, subd. (a)(1).) Tran and Lam were each charged with one count of conspiracy, one count of transportation of a controlled substance, and one count of possession for sale of a controlled substance.
On May 4, 2005, after a joint trial, the defendants were found guilty by jury on all charged counts. The trial court admitted Lam and Tran to probation for a period of three years, and ordered them to serve 180 days in county jail. Ducut was sentenced to four years in state prison.
On appeal, Tran argues that the trial court erred in refusing to allow him to impeach a key prosecution witness with evidence of three prior misdemeanor convictions. He also claims that the court erred in refusing to give CALJIC No. 2.28, and that cumulative errors justify reversal. Ducut and Lam have filed appeals pursuant to People v. Wende (1979) 25 Cal.3d 436. Court affirm.

Defendant appeals from his conviction of misdemeanor assault,misdemeanor false imprisonment and misdemeanor battery, contending that the trial court violated his Sixth Amendment right to confrontation by limiting the scope of cross examination of the complaining witness and that the court abused its discretion in denying his motion for a new trial. Court find no error and affirm.

Tony Richard Low appeals from a judgment entered after a jury convicted him of vehicle theft, (Veh. Code, 10851, subd. (a)) and smuggling drugs into a jail. (Pen. Code, 4573.) He contends his conviction on the smuggling offense must be reversed because (1) section 4573 did not apply to his conduct, (2) applying the statute in this instance would violate his due process rights, (3) applying the statute to his conduct would violate his right to equal protection, (4) the evidence was insufficient to support his conviction, (5) the trial court erred when it denied his motion for a new trial, and (6) the court instructed the jury incorrectly. Court conclude the court did not commit any prejudicial errors and affirm.

Appellant seeks reversal of an order of the trial court that set aside a default judgment due to lack of valid service of process upon respondents by publication. Court find that the service of process was invalid and rendered the subsequent default judgment void for lack of jurisdiction. Court therefore affirm the trial courts order that set aside the default judgment.

Defendant appeals from a judgment following his plea of guilty and imposition of sentence. His counsel has raised no issues and asks this court for 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; see Smith v. Robbins (2000) 528 U.S. 259.) Upon independent review of the record, Court conclude that no arguable issues are presented for review, and affirm the judgment.

Defendant Andre W., born in February 1989, appeals a juvenile court dispositional order adjudging him a ward of the court (Welf. & Inst. Code, 602), removing him from his mothers custody and committing him to the custody of the probation officer to determine a suitable placement after he was found to have committed robbery (Pen. Code, 211). Counsel has advised that 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 informed her client in writing that a Wende brief was being filed and that defendant had the right to personally file a supplemental brief in this case within 30 days. No supplemental brief has been filed. Defendant was adequately represented by counsel at every stage of the proceedings, and appeared at every hearing. Court conclude there are no arguable issues.

Stephen Jackson, Jr. was convicted of numerous sexual offenses against multiple victims and was sentenced to life imprisonment with a minimum of 70 years in prison plus a determinate term of 13 years. He appeals his conviction on four grounds: that he was not competent to represent himself and should not have been allowed to do so; that the trial court should have ordered a competency hearing; that the trial court should have granted his requested continuances; and that the trial court deprived him of his right to confrontation by consulting ex parte with another judge. Court affirm.

Defendant appeals his jury conviction of one count of assault with a firearm (Penal Code, 245, subd. (a)(2)) with a true finding that he personally used a firearm in the commission of the offense (Penal Code, 12022.5; 1192.7, subd. (c); and 667.5, subd. (c)). He contends that the trial court erred in failing to (1) instruct on the lesser included offense of brandishing a weapon (Penal Code, 417); (2) grant probation; and (3) grant two days of conduct credits (Penal Code, 4019). Court affirm the judgment, as modified, to grant defendant two additional days of conduct credits.

Appellant contends the juvenile court erred in denying his motion to suppress evidence, and challenges three probation conditions as vague and overbroad. Court modify the conditions and affirm the judgment as modified.

Jorge Valencia, also known as George Valencia, appeals from the judgment entered following revocation of probation previously granted after his plea of no contest to assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)). Appellant was placed on three years probation and ordered to perform 120 days of Caltrans or tree farm service. On June 21, 2005, appellants probation was revoked based upon the filing of a new criminal charge of forgery (Pen. Code, 470, subd. (d)). At a probation violation hearing on November 18, 2005, the trial court found appellant in violation of probation. He was later sentenced to the upper term of four years as previously imposed at an earlier probation violation hearing, after which probation was reinstated. Court appointed counsel to represent him on this appeal.Court have also examined the entire record and are satisfied that appellants attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.

Appellant purchased an interest in a business that failed, losing his entire investment. He sued seller and respondent James Qiu for breach of contract and fraud. After a one day court trial, the court entered judgment for respondent. Finding no error, Court affirm.

In January 2006, defendant Eric Christopher Geiger willfully, unlawfully and by means of force or fear took property from the person, possession, and immediate presence of D.S.
Defendant pleaded guilty to second degree robbery (Pen. Code, 211, 212.5, subd. (c); further undesignated statutory references are to the Penal Code) and admitted one strike allegation ( 667, subds. (b) (i), 1170.12) and two prior prison term allegations ( 667.5, subd. (b)). In exchange, six related counts, a serious felony allegation ( 667, subd. (a)) and a prior prison term allegation were dismissed.
Defendant was sentenced to state prison for 12 years, awarded 149 days of custody credit and 23 days of conduct credit, and ordered to pay a $2400 restitution fine ( 1202.4); a $2400 restitution fine suspended unless parole is revoked. We note that the abstract of judgment must be corrected to reflect the penalty assessments on the theft fine. All fines and fees must be set forth in the abstract of judgment. [Citations.] (People v. High (2004) 119 Cal.App.4th 1192, 1200.). The judgment is affirmed.