CA Unpub Decisions
California Unpublished Decisions
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L.D., the minor, was freed for adoption after his biological father murdered his mother when L.D. was 10 months old. After several maternal relatives failed to gain approval to adopt L.D., Tom C., a paternal third cousin requested adoptive placement. The San Bernardino Children and Family Services Agency (CFS) placed the minor with Tom C. and his wife, but Tom C. failed to submit all the paperwork necessary to complete the home evaluation over a 17-month period. In addition, Tom C.’s marriage became unstable over allegations that the relative was unfaithful to his wife and the wife’s medical condition, which slowed down the completion of the home assessment. Tom C.’s dishonesty with CFS and failure to follow through with the requirements of the adoptive home evaluation caused CFS to seek removal of the minor from Tom C.’s home. Tom C. sought designation as a prospective adoptive parent which was granted and then nullified when the court ordered removal of the minor from his home. Tom C. then sought return of the minor, designation as de facto parent, and immediate completion of the adoption in request to change the order of removal. (Welf. & Inst. Code,[1] § 388.) The court denied the request and Tom C. appeals. On appeal, Tom C. challenges the denial of his section 388 petition on various grounds. We affirm.
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On March 21, 2012, a first amended information charged defendant and appellant Odis Thelmar Hamer III with causing injury to another person while driving a motor vehicle under the influence of alcohol in violation of Vehicle Code section 23153, subdivision (a) (count 1); causing injury to another person while driving a motor vehicle with a blood-alcohol level of 0.08 percent or more in violation of Vehicle Code section 23153, subdivision (b) (count 2); and leaving the scene of an accident in violation of Vehicle Code section 20001, subdivision (a) (count 3). Pursuant to Vehicle Code section 23560, the amended information also alleged, as to counts 1 and 2, one prior Vehicle Code section 23153, subdivision (b), conviction, as well as enhancements under Penal Code section 12022.7, subdivision (a) (great bodily injury) and Vehicle Code section 23558 (bodily injury). At the arraignment on March 23, 2012, defendant pleaded not guilty to all counts.
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R.J. (father) appeals from an order of the juvenile court denying his petition under Welfare and Institutions Code[1] section 388. However, after the order appealed from, the juvenile court terminated father’s parental rights, and father failed to appeal from the termination order, which has become final. Accordingly, there is no effective relief that we could grant father on his appeal from the section 388 order. Because father’s appeal is moot, we will dismiss it.
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R.J. (father) appeals from an order of the juvenile court denying his petition under Welfare and Institutions Code[1] section 388. However, after the order appealed from, the juvenile court terminated father’s parental rights, and father failed to appeal from the termination order, which has become final. Accordingly, there is no effective relief that we could grant father on his appeal from the section 388 order. Because father’s appeal is moot, we will dismiss it.
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In October 2008, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for one-month-old Dana. The petition alleged Dana was exposed to domestic violence between Donald and mother Brenda L. (together, the parents),[1] and the parents drank alcohol to excess. The court made a true finding on the petition. Dana remained in foster care until July 2009, when she began a 60-day trial visit with the parents. In November, on the day the court terminated dependency jurisdiction, the Agency received a referral alleging further alcohol abuse and domestic violence. The Agency offered the parents voluntary services, but they refused to cooperate. The domestic violence continued and Donald, who was in the military, was placed in the brig.
Donald was released in April 2011 and the Agency filed a new petition for two-and-one-half-year-old Dana. The petition alleged Brenda had relapsed on alcohol and Donald had not protected Dana. Dana was detained and the court ordered supervised visits for Donald. A restraining order protected Brenda and Dana from Donald, with an exception for court-ordered visitation. |
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A jury found Jesus Ramos guilty of possession of child pornography, and the trial court found true allegations Ramos had two prior convictions of committing a lewd act on a child under the age of 14. For the current conviction, the court imposed a prison sentence of 25 years to life under the "Three Strikes" law. Ramos contends the court abused its discretion in refusing to dismiss the allegations concerning at least one of his prior lewd act convictions, and the sentence violates constitutional prohibitions against double jeopardy and cruel and/or unusual punishment. We reject these contentions and affirm the judgment.
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A jury convicted Juan Frausto of assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a).)[1] The court suspended imposition of sentence and placed Frausto on probation for three years with terms and conditions, including that he could not knowingly "be within two blocks of any proscribed area (an area of gang or criminal activity)." On appeal, Frausto contends the court erred by imposing a vague and overbroad probation condition. Frausto also contends the statutory construction of section 4019 and principles of equal protection demand he be given additional presentence custody credits. We conclude the imposed probation condition should be modified to avoid unconstitutional vagueness and overbreadth. We also conclude that under the rules of statutory construction the enhanced conduct credit provision of section 4019 applies only to defendants who committed their crimes on or after October 1, 2011, and section 4019 does not violate principles of equal protection. (U.S. Const. 14th Amend.; Cal. Const., art. I, § 7, subd. (a).)
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This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436.
On March 1, 2012, the People filed a petition under Welfare and Institutions Code section 602 alleging that appellant V.D. failed to stop at the scene of an accident involving property damage (count 1; Veh. Code, § 20002, subd. (a)) and drove without a license (count 2; Veh. Code, § 12500, subd. (a)). Appellant subsequently admitted count 1, and count 2 was dismissed in the interest of justice. According to the probation report, to which the parties stipulated as providing the factual basis for appellant’s plea, on the night of September 12, 2011, a witness saw a gray Toyota make a u-turn and sideswipe a parked car, causing damage. The witness advised the driver (appellant) to stop and leave insurance information, but the driver sped away. The Toyota was registered to appellant’s parents; he had driven it without permission. |
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Appointed counsel for defendant Ronald L. Jackson, Jr., asked this court to review the record to determine whether there are any arguable issues on appeal. ( "People v. Wende(1979) 25 Cal.3d 436" People v. Wende (1979) 25 Cal.3d 436 ( Wende).) We conclude the judgment must be modified to include imposition of certain mandatory fines and fees. We will modify the judgment, affirm the judgment as modified, and direct the trial court to amend the abstract of judgment.
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Defendant Roy Alfonso Zamora appeals from the judgment entered after his no contest plea to attempted murder. His appointed counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) On November 30, 2012, we directed appointed counsel to send the record and a copy of counsel’s brief to defendant and notified defendant of his right to respond within 30 days. We received no response. Defendant’s notice of appeal states that it is based upon the sentence or other matters occurring after the plea that do not affect its validity. (Cal. Rules of Court, rule 8.304(b)(4).) We have reviewed the whole record under People v. Kelly (2006) 40 Cal.4th 106, focusing upon the sentence as that is the only matter that occurred after entry of the plea. Defendant was originally charged with two counts: 1) premeditated attempted murder (Pen.Code, §§ 664, 187, subd. (a))[1] and 2) assault with a deadly weapon (§ 245, subd. (a)(1)). The information was later amended to include a third count of attempted murder. Use of a knife and infliction of great bodily injury (§§ 12022, subd. (b)(1), 12022.7, subd. (a) were alleged as to counts 1 and 3. Defendant pled no contest to count 3, attempted murder, and admitted the enhancement allegations. Pursuant to a plea agreement, he was sentenced to 12 years in prison, consisting of a high term of nine years for the attempted murder, plus three years for the great bodily injury enhancement. The court stayed punishment on the weapon-use enhancement. The remaining charges were dismissed. Defendant was awarded 299 days of custody credit (260 days of actual credit and 39 days of conduct credit), and ordered to provide a DNA sample. The court imposed a restitution fine of $240 and an additional $240 suspended parole revocation fine. (§§ 1202.4, subd. (b), 1202.45). Additionally, the court assessed a $40 court security fee and a $30 criminal conviction assessment fee. (§ 1465.8, Gov. Code, § 70373.) Having reviewed the record, we are satisfied that no arguable issues for appeal exist. |
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A jury convicted defendant James Ruiz of corporal injury to a spouse. (Pen. Code, § 273.5, subd. (a) (count 1).)[1] The jury found Ruiz not guilty of assault by means likely to produce great bodily injury. (§ 245, subd. (a)(1) (count 2).) In a bifurcated trial, the jury found Ruiz had suffered four prior convictions (§ 667.5, subd. (b)), one of which was a prior conviction within the meaning of the “Three Strikes†law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Ruiz was sentenced to 12 years in state prison, consisting of the upper term of four years, doubled pursuant to the Three Strikes Law, plus one additional year for each of the four prior prison term convictions.
Ruiz contends on appeal that the trial court erred by (1) failing to hold an adequate Marsden[2] hearing in which the court questioned Ruiz about his dissatisfaction with appointed counsel; (2) denying Ruiz’s midtrial motion to represent himself; (3) admitting evidence of prior bad acts; and (4) instructing the jury that Ruiz had a motive to commit the charged offenses. Ruiz further contends that the cumulative effect of these errors requires reversal of his conviction. As we agree with the first contention, we reverse the judgment and remand the matter to the trial court. Because after holding an appropriate Marsden hearing on remand the judgment could be reinstated, we proceed to consider the remaining contentions raised by Ruiz on appeal and find no further error. |
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Defendant Martin Cerros appeals from the judgment entered following a jury trial in which he was convicted of 19 counts of sexual abuse of a child under 14 years of age. He contends no evidence supported the finding that he was at least seven years older than the child, the trial court erred in not instructing the jury that it was required to reach unanimous decisions on which instances of abuse supported the guilt finding on each count, and his sentence of 255 years to life was excessive. We affirm. |
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Defendant and appellant Ernie Gonzalez was convicted of murder (Pen. Code, § 187, subd. (a)[1]) and willful, deliberate and premeditated attempted murder (§§ 664 and 187, subdivision (a)). Defendant and appellant Angel Alez Jaimez was convicted of false imprisonment by violence (§ 236) and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)). On appeal, both defendants contend that the trial court erred in admitting expert testimony of prior shootings among members of their gang. In addition, Gonzalez contends that the trial court violated his right to confrontation under the Sixth Amendment by admitting hearsay evidence as a basis for the testimony of prosecution’s gang expert and erred by imposing an unauthorized sentence term of “15 years to life†on his conviction for attempted murder, and that the abstract of judgment should be amended to reflect correctly the jury’s true finding on the firearm use enhancements. Jaimez contends that there is not substantial evidence to support the jury’s true findings for the gang enhancements and that the trial court erred in failing to provide him with presentence conduct credit.
We order that Gonzalez’s abstract of judgment be corrected by stating that he is sentenced on count 2 to a life term with a 15 year minimum eligible parole date, and the firearm use enhancements are imposed under section 12022.53, subdivision (d), and Jaimez’s abstract of judgment be corrected to provide that he is entitled to presentence conduct credit. We otherwise affirm the judgments. |
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Davion Hays appeals from a judgment entered after a jury convicted him of one count of willful, deliberate and premeditated murder and two counts of willful, deliberate and premeditated attempted murder and found firearm enhancement allegations to be true. The trial court sentenced Hays to two consecutive life terms plus 100 years to life. Hays contends there was insufficient evidence to prove he did not act in self-defense. We disagree, finding sufficient evidence in the record supporting Hays’s convictions for premeditated murder and premeditated attempted murder.
Hays also contends the trial court committed reversible error in admitting evidence of uncharged possession of a sawed-off shotgun not related to the charged offenses. We agree and reverse. |
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