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The People v. Orienthal D. Liggins

December 27, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ORIENTHAL D. LIGGINS, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Bernardino County, Brian S. McCarville, Judge. Judgment modified and affirmed as modified. (Super. Ct. No. FSB047546)

The opinion of the court was delivered by: McCONNELL, P. J.

P. v. Liggins

CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

INTRODUCTION

A jury convicted Orienthal D. Liggins of first degree murder, and found true allegations he personally used a knife during the commission of the crime. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).)*fn1 The trial court found true allegations he had two prior strike convictions, two prior serious felony convictions, and one prior prison conviction. (§§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12, subd. (b)(1).) The trial court sentenced him to 75 years to life in prison for the first degree murder conviction, plus one year for the weapon use enhancement, plus five years for each of the prior serious felony convictions, plus one year for the prior prison conviction.

Liggins appeals, contending the trial court abused its discretion when it denied as untimely his motion to disqualify the trial judge. In addition, he contends there is insufficient evidence to support the trial court's finding he suffered a prior strike conviction in Texas. He also contends the trial court should have stricken, rather than imposed, a sentence for the prior prison conviction finding because it was based on the same offense as one of the serious felony conviction findings.

The People concede the latter issue. We order the one-year sentence for the prior prison conviction stricken and the abstract of judgment corrected accordingly. In all other respects, we affirm the judgment.

DISCUSSION*fn2

I

A

In November 2008 the trial court assigned this case to the Honorable Brian McCarville for all purposes. Five days later, Liggins, who was representing himself, filed a motion to disqualify Judge McCarville under Code of Civil Procedure section 170.6. Judge McCarville denied the motion, finding it untimely.

Liggins contends the trial court erred in denying the motion because it was, in fact, timely. He further contends the error rendered the trial result invalid and we must, therefore, reverse his conviction. The People contend Liggins's claim is not cognizable on appeal as Liggins's exclusive remedy ...


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