http://www.fearnotlaw.com Latest articles on Fearnotlaw.com. en-us http://feedvalidator.org/docs/rss2.html Fri, 3 Feb 2012 20:10:50 PST Copyright 2005, Fearnotlaw.com A jury convicted defendant James Edward Carroll of first degree residential burglary and assault with a deadly weapon; it also found true that he used a deadly weapon (a knife) in the course of committing the burglary, and that the resident was present at the time of the crime. At sentencing, the trial court rejected defendant’s argument that a 1978 federal conviction for bank robbery was not a “serious” felony under California law (Pen. Code, § 1192.7, subd. (c)(19)),[1] and also declined his invitation to exercise its discretion under section 1385 to strike one or both of the recidivist findings. Defendant was sentenced to an aggregate term of 36 years to life, comprised of a 25-year-to-life term for the residential burglary, plus a one-year enhancement for the knife use and five years for each of the two recidivist findings under section 667, subdivision (a); the court stayed a 35-year-to-life sentence on the assault with a deadly weapon conviction under section 654. On appeal, defendant renews his challenge to the status of his 1978 federal conviction as a serious felony under California law, and contends the court abused its discretion in denying his request to strike any of the recidivist findings because it failed to consider significant mitigating factors, including that his most serious priors occurred when he was much younger, many of his convictions were nonviolent or were drug or alcohol related, and he has serious health problems. We shall affirm. Fri, 3 Feb 2012 20:10:50 PST http://www.fearnotlaw.com/articles/article47314.html http://www.fearnotlaw.com/articles/article47314.html Defendant Kaniah McCauley appeals from a judgment entered after the trial court revoked her probation. She contends (and the People agree) the court erred in imposing a cumulative jail sentence in excess of one year in case No. 07F08499 (case 8499) in violation of Penal Code section 19.2.[1] We agree and shall remand for resentencing. Fri, 3 Feb 2012 20:10:08 PST http://www.fearnotlaw.com/articles/article47313.html http://www.fearnotlaw.com/articles/article47313.html Following a jury trial, defendant Logan Sharp was convicted of second degree robbery (Pen. Code, § 211; undesignated statutory references that follow are to the Penal Code). The trial court sustained prior strike and serious felony allegations, and sentenced defendant to an 11-year prison term. On appeal, defendant contends the trial court erroneously admitted rebuttal testimony, trial counsel was ineffective in failing to request a pinpoint cautionary instruction, and that the trial was tainted by cumulative error. We affirm the judgment. Fri, 3 Feb 2012 20:09:32 PST http://www.fearnotlaw.com/articles/article47312.html http://www.fearnotlaw.com/articles/article47312.html Maria G. (mother) and Cesar R. (father) petition for extraordinary writ relief from the juvenile court's order terminating reunification services and setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26.[1] Mother petitions regarding her five children, Anthony G., Robert H., Jesus G., Cesar R., and Andrea R. Father petitions with respect to his two children, Cesar R. and Andrea R. We deny the petitions because petitioners have failed to comply with the requirements of California Rules of Court, rule 8.452, or otherwise present any material issues on appeal. Fri, 3 Feb 2012 20:08:53 PST http://www.fearnotlaw.com/articles/article47311.html http://www.fearnotlaw.com/articles/article47311.html S.C., a minor represented by counsel, and the Department of Children and Family Services (DCFS) seek writ review of an order of the juvenile court denying DCFS’s request that S.C. be removed from the home of her prospective adoptive parents, real parties in interest Sofia S. and Ricardo O. S.C. and DCFS contend the juvenile court imposed a heightened burden of proof and abused its discretion. We disagree and deny the writ petitions. Fri, 3 Feb 2012 20:08:15 PST http://www.fearnotlaw.com/articles/article47310.html http://www.fearnotlaw.com/articles/article47310.html Samantha B. (Mother), the mother of 11-year-old Trinity B. and 4-year-old Jeremiah M., and Kent M. (Father), the biological father of Jeremiah M., challenge the court’s order denying Mother’s motion to reinstate her family reunification services and unmonitored visits with the children and its order terminating Mother’s and Father’s parental rights. We affirm both orders. Fri, 3 Feb 2012 20:07:11 PST http://www.fearnotlaw.com/articles/article47309.html http://www.fearnotlaw.com/articles/article47309.html In 2006, appellant's mother, Elizabeth Cook (Cook), agreed to have a monogamous sexual relationship with respondent David C. Colby in exchange for Colby's promise to provide housing at his Lake Sherwood home and pay for appellant's surgery. Appellant suffered from epilepsy and needed surgery to remove a brain cyst. The relationship ended when Cook, a single mother, discovered that Colby was married, was having sexual relations with other women, and may have transmitted herpes to her. In 2006, Cook filed suit on behalf of herself and appellant for sexual battery, infliction of emotional distress, fraud and deceit, breach of contract. The first amended complaint stated that appellant was a third party beneficiary to Cook's contract to have a monogamous intimate relationship with Colby. The trial court sustained a demurrer with leave to amend on the theory that "[s]ex is not a recognized consideration for a contract." Fri, 3 Feb 2012 20:06:27 PST http://www.fearnotlaw.com/articles/article47308.html http://www.fearnotlaw.com/articles/article47308.html Sean David Lust pled no contest to one count of cultivating marijuana. (Health & Saf. Code, § 11358.) Lust challenges fees imposed under Penal Code section 1465.8, subdivision (a)(1) and Government Code section 70373. Lust also challenges some conditions of his probation. We modify the conditions of probation. In all other respects, we affirm. Fri, 3 Feb 2012 20:05:45 PST http://www.fearnotlaw.com/articles/article47307.html http://www.fearnotlaw.com/articles/article47307.html A lender mistakenly reconveyed collateral to a corporate borrower, which conveyed the collateral to a sister corporation, which sold the property to a third party. When the borrower defaulted on the loan, the lender sued the sister corporation and its principal for unjust enrichment. The sister corporation and principal appeal from the trial court’s orders granting the lender’s pretrial applications for right to attach orders and issuing writs of attachment, contending the claim sued upon is not based on contract, as is required, and plaintiff did not establish the claim’s probable validity. We affirm. Fri, 3 Feb 2012 20:04:36 PST http://www.fearnotlaw.com/articles/article47306.html http://www.fearnotlaw.com/articles/article47306.html C.L. (Mother) appeals from the juvenile court’s order summarily denying her petition under Welfare and Institutions Code section 388.[1] By her petition, Mother sought to change the court’s visitation order from monitored to unmonitored visits with her four children. On December 29, 2010, after Mother filed her opening brief in this matter, the Los Angeles Department of Children and Family Services (DCFS) filed a motion for partial dismissal of Mother’s appeal. DCFS requested that this court take judicial notice of the juvenile court’s October 25, 2010 order granting Mother unmonitored visits with her three oldest children, E.C., D.T. and T.T. The juvenile court ordered visits with Mother’s youngest child, K.W., to remain monitored. DCFS argues that Mother’s appeal from the denial of her section 388 petition is moot as to E.C., D.T. and T.T. Mother has not indicated that she opposes DCFS’s motion. We grant DCFS’s unopposed request for judicial notice and motion for partial dismissal of Mother’s appeal. With respect to her children E.C., D.T. and T.T., Mother obtained the change in order she sought in her section 388 petition—unmonitored visitation. Thus, her appeal as to those three children is moot. We review the order appealed from as to K.W. We conclude that the juvenile court did not abuse its discretion in summarily denying Mother’s section 388 petition regarding monitored visitation with K.W. Fri, 3 Feb 2012 20:03:31 PST http://www.fearnotlaw.com/articles/article47305.html http://www.fearnotlaw.com/articles/article47305.html Darwin Alfelor appeals a judgment following conviction of kidnapping to commit another crime, forcible lewd act on a child, and three counts of oral copulation, sexual penetration, or sodomy of a child, with findings of personal firearm use and kidnapping that increased the risk of harm to the victim. (Pen. Code, §§ 209, subd. (b)(1), 288, subd. (b)(1), 288.7, subd. (a) & (b), 12022.5, subd. (a), 12022.53, subd. (b), 667.61, subds. (a)-(e).)[1] We affirm. Fri, 3 Feb 2012 20:02:08 PST http://www.fearnotlaw.com/articles/article47304.html http://www.fearnotlaw.com/articles/article47304.html Paul Jesse Perez appeals the judgment following his guilty plea to resisting an executive officer (Pen. Code,[1] § 69) and his admission that he had suffered a prior strike conviction (§§ 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1)) and served two prior prison terms (§ 667.5, subd. (b)). In exchange for appellant's plea, the trial court struck the strike prior and one of the prison priors and sentenced him to three years in state prison. Appellant was awarded 163 days of presentence custody credit, consisting of 109 days actual custody credit and 54 days conduct credit. Appellant contends the court erred in concluding that his prior strike conviction rendered him ineligible for "one-for-one" presentence conduct credits under the amended version of section 4019 that was in effect when he was sentenced, notwithstanding the fact that the prior conviction had been stricken pursuant to section 1385. He further contends that section 4019's limitation of presentence conduct credit for prisoners with prior strike convictions violates his equal protection rights. Although we reject the equal protection claim, we conclude that the court erroneously believed it lacked the discretion to strike appellant's prior conviction for purposes of section 4019. Accordingly, we shall remand for the court to determine whether to exercise its discretion in that regard. Otherwise, we affirm. Fri, 3 Feb 2012 20:01:27 PST http://www.fearnotlaw.com/articles/article47303.html http://www.fearnotlaw.com/articles/article47303.html Following a jury trial, defendant, Kevin Wayne Loveless, was convicted of assault by means of force likely to produce great bodily injury (Pen Code,[1] § 245, subd. (a)(1); count 1) and battery with serious bodily injury (§ 243, subd. (d); count 2). The jury found defendant personally inflicted great bodily injury in the commission of the assault. (§ 12022.7, subd. (a).) The trial court found defendant had served three prior separate prison terms. (§ 667.5, subd. (b).) Defendant was sentenced to 9 years in state prison on count 1. The trial court stayed imposition of sentence on count 2 under section 654. Defendant argues the trial court erred prejudicially when it failed to instruct the jury, sua sponte, on the lesser included offense of simple assault. We conclude a lesser included simple assault instruction was not warranted and even if such an instruction was required, any error was harmless. However, we reverse the judgment and remand with directions to impose a sentence on count 2 and then stay execution of that sentence. We also modify the judgment with respect to applicable fees. Fri, 3 Feb 2012 20:00:44 PST http://www.fearnotlaw.com/articles/article47302.html http://www.fearnotlaw.com/articles/article47302.html Mary Janette Deosie-Cancel appeals from an order enjoining her from harassing Margarita Mora, Mora’s three children, or Louis Bentley, Jr., Mora’s fiancé. Deosie-Cancel asks that we dissolve the restraining order and award her $3,000 in mental distress damages and $5000 for pain and suffering. We affirm. Fri, 3 Feb 2012 20:00:06 PST http://www.fearnotlaw.com/articles/article47301.html http://www.fearnotlaw.com/articles/article47301.html David Richard Booth appeals his conviction by jury for attempted robbery with personal infliction of great bodily injury (Pen. Code, §§ 664/211; 12022.7, subd. (a))[1] and battery causing serious bodily injury (§ 243, subd. (d)). The trial court sentenced appellant to five years state prison. We modify the sentence to impose a mandatory $60 court security fee (§ 1465.8, subd. (a)(1)) and a $60 criminal conviction assessment (Gov. Code, § 70373). The judgment, as modified, is affirmed.. Fri, 3 Feb 2012 19:59:17 PST http://www.fearnotlaw.com/articles/article47300.html http://www.fearnotlaw.com/articles/article47300.html