CA Unpub Decisions
California Unpublished Decisions
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Appellant, Moises Anibal Hernandez, was charged in a first amended information filed on December 6, 2011, with three counts of sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a), counts 1, 2, & 3),[1] committing a lewd act on a child under the age of 14 years (§ 288, subd. (a), count 4), and committing an act of oral copulation or sexual penetration on a child 10 years of age or younger (§ 288.7, subd. (b), count 5). On December 6, 2011, appellant entered into a plea agreement wherein he would admit count 5 in exchange for the dismissal of the remaining counts and the dismissal of three unrelated pending criminal actions.[2] Appellant would receive a sentence of 15 years to life.
Appellant executed a felony advisement, waiver of rights, and plea form acknowledging the terms of the plea agreement, the consequences of his plea, and his constitutional rights pursuant to Boykin/Tahl.[3] Appellant waived his Boykin/Tahl rights in the form. At the hearing, the trial court verified that appellant understood the terms of the plea agreement, the consequences of the plea,[4] and had executed and initialed the change of plea form. The form was read to appellant and reviewed with him by a court-certified interpreter. The court reviewed appellant’s Boykin/Tahl rights with appellant and appellant waived them. The parities stipulated to a factual basis for the plea.[5] Appellant pled no contest to count 5. On January 17, 2012, appellant brought an oral motion to withdraw his plea, alleging that he was unaware that his plea would result in a prison term of 15 years to life. At the hearing, appellant stated that he wanted to withdraw his plea and have a trial. The prosecutor read from the relevant change of plea transcript where the trial court explained to appellant that as a consequence of the change of plea, appellant faced a prison term of 15 years to life. The prosecutor also read into the record language in the change of plea form stating the same thing. The trial court found that appellant’s assertion lacked any credibility given the state of the record, that appellant understood the nature of the plea, and appellant had a certified Spanish interpreter assisting him throughout the proceedings. The court found it did not believe appellant and denied his motion to withdraw his plea. The court sentenced appellant to prison for a term of 15 years to life. Appellant received total custody credits of 365 days and was ordered to pay a $10,000 restitution fine. Appellant obtained a certificate of probable cause. |
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On September 3, 2010, in Fresno County Superior Court case No. F10601292 (first case), appellant, Albert Eldridge Ratliff, pled guilty to a single count of willful infliction of corporal injury upon a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)). On November 9, 2010, the court suspended imposition of sentence and placed appellant on three years’ formal probation.
On November 1, 2011, in Fresno County Superior Court case No. F11905761 (second case), appellant pled guilty to a single count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), and based on that plea, the court found appellant to be in violation of probation in the first case. On December 2, 2011, the court imposed the two-year lower term in the second case and a concurrent two-year term in the first case. On January 3, 2012, appellant filed a notice of appeal covering both cases and requested the court issue a certificate of probable cause (Pen. Code, § 1237.5). The court denied that request. Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. |
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A jury convicted appellant, Karen Butler of possessing a weapon while confined in a penal institution (Pen. Code, § 4502, subd. (a)).[1] In a separate proceeding, the court found true an allegation that Butler had a prior conviction within the meaning of the “Three Strikes†law (§ 667, subds. (b)-(i)).
On November 4, 2011, the court sentenced Butler to a four-year term (the mitigated term of two years doubled because of Butler’s prior strike conviction), which it imposed consecutive to the term Butler was serving when she committed the possession offense. On appeal, Butler contends: 1) the court committed instructional error; and 2) she was denied the effective assistance of counsel. We affirm. |
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Appellant/defendant Jimmy Lee Cruz (defendant) was charged with several drug-related offenses: count I – possession of methamphetamine for sale (Health & Saf. Code, § 11378); count II – possession of hydrocodone for sale (Health & Saf. Code, §11351); count III – unlawful possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count IV – unlawful possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)); and count V unlawful possession of drug paraphernalia (Health & Saf. Code, § 11364).[1]
Defendant changed his plea to no contest in exchange for a court-indicated sentence of three years in jail. Subsequently, he was sentenced to four concurrent three-year jail terms on counts I through IV. Defendant raises a number of issues on appeal. First, he claims the superior court erred in denying his motion to suppress evidence found in an apartment under color of a search warrant. Second, he asserts that his sentences on counts III and IV must be stayed pursuant to Penal Code[2] section 654. Finally, he argues that equal protection considerations require that section 4019 be applied retroactively. We will stay the execution of the sentences on counts III and IV and otherwise affirm. |
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A jury convicted defendant Anthony Lamont English of selling or furnishing marijuana for the benefit of or in association with a criminal street gang (Health & Saf. Code, § 11360, subd. (a); Pen. Code,[1] § 186.22, subd. (b)(1); count 1), possessing marijuana for sale for the benefit of or in association with a criminal street gang (Health & Saf. Code, § 11359; § 186.22, subd. (b)(1); count 2), and actively participating in a criminal street gang (§ 186.22, subd. (a); count 3). He was sentenced to a total unstayed term of five years in prison and ordered to pay various fees and fines.[2] |
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I.B., a minor under the age of three, was declared a dependent after she suffered a broken elbow and ankle while in the custody of legal guardians appointed after I.B.’s mother was shot to death. Father was in custody on a parole violation, so it was alleged he failed to protect the minor and failed to provide for her. (Welf. & Inst. Code,[1] § 300, subds. (b), (g).) Father received and completed reunification services, but he tested positive for methamphetamine once and missed two drug tests early in the dependency, and drank two beers on Christmas Eve during the reunification period. Services were terminated and a section 366.26 hearing was set. Prior to the hearing, father filed a petition to modify the order setting the section 366.26 hearing (§ 388), demonstrating he had completed a new substance abuse program on his own and maintained a close relationship with the minor. The county agreed that the petition should be granted, but the court denied it based on the concerns of the minor’s counsel that the minor needed stability and should remain with her half-brother. Father’s parental rights were terminated and he appealed.
On appeal, father argues that (1) the denial of his section 388 petition was error and (2) his parental rights should not have been terminated based on a beneficial parent-child relationship. (§ 366.26, subd. (c)(1)(B)(i).) The San Bernardino County Children and Family Services (CFS) agrees that the juvenile court erred in denying the request to modify the court order, which renders moot any remaining issue regarding the termination of parental rights. We reverse. |
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On June 16, 2011, defendant and appellant William Keith McClain pled guilty to possession of ammunition as a person prohibited from owning a firearm under Penal Code section 12316, subdivision (b)(1). In accordance with the terms of the plea agreement, the trial court imposed a two-year sentence in state prison. Execution of the prison sentence was suspended and defendant was placed on probation for 36 months. Two of the probationary terms included: “Obey all laws, ordinances, and court ordersâ€; and “Do not knowingly own, possess or have control of any firearm, deadly weapon or ammunition.â€
On August 9, 2011, the district attorney filed a petition to find defendant in violation of his probation on the ground that he possessed ammunition in violation of Penal Code section 12316, subdivision (b)(1). The matter was continued numerous times. On July 9, 2012, the trial court granted the district attorney’s request to amend the petition to add the allegation that defendant had also violated the probationary term that he not knowingly own, possess, or have under his control a firearm, deadly weapon, or ammunition. At the conclusion of the July 16, 2012 revocation hearing, the trial court found that defendant had violated both terms. On August 17, 2012, the trial court ordered execution of the previously suspended two-year state prison sentence. On August 21, 2012, defendant filed a notice of appeal from the contested probation violation. |
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This opinion addresses two appeals that have been consolidated. The first appeal is brought by T.C. (Mother), who is the mother of H.C. and A.C. (collectively “the childrenâ€). The second appeal is brought by L.C. (Cousin), who is Mother’s cousin—the children’s second cousin. The juvenile court terminated Mother’s parental rights to the children. (Welf. & Inst. Code, § 366.26, subd. (b)(1).)[1] Additionally, the juvenile court (1) suspended visitation between Cousin and the children, (2) ordered the children’s permanent plans to be adoption by their caregivers, and (3) denied Cousin’s request to place the children with Cousin (§ 388).
Cousin contends the juvenile court erred because (1) it failed to follow the statutory requirements concerning relative placement (§ 361.3), and (2) it was in the children’s best interests to be placed together, in order to preserve their sibling bond. Mother contends the juvenile court erred because it “did not adequately assess and evaluate the suitable and available relative placement with maternal cousin.†We affirm the judgment. |
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Defendant Chris Everette seeks reversal of his conviction for simple possession of cocaine base (Health & Saf. Code § 11350, subd. (a)), because it is a lesser included offense of one of his other convictions, possession of cocaine base for sale. (Health & Saf. Code § 11351.5.) He also asks that his parole revocation restitution fine be dismissed. (Pen. Code § 1202.45.)[1] We will reverse the possession charge and clarify what revocation restitution fines he is required to pay.
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Defendant Miriam Jeannette Rodriguez was found guilty by a jury of two counts of elder financial abuse (Pen. Code,[1] § 368, subd. (d)), two counts of identity theft (§ 530.5, subd. (a)), nine counts of grand theft (§ 487, subd. (a)), one count of recording false documents (§ 115), four counts of residential burglary (§ 459), and 10 counts of money laundering (§ 186.10, subd. (a)), arising from a series of fraudulent mortgage transactions involving five separate victims. Each of the victims was Hispanic and had difficulty understanding English. All of the victims trusted the defendant, a real estate broker, to help them navigate through confusing loan modifications or mortgage refinancing, only to be bilked. Defendant was sentenced to an aggregate term of 13 years 8 months, and appealed.
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Plaintiff and appellant E. Ray Noxsel[1] and respondent Boquet[2] Estates Owners Association (HOA), have sued one another in a dispute involving 59 garages, owned by Noxsel as part of a condominium development. Noxsel contends that the garages can be rented or sold to anyone, including members of the general public. In contrast, the HOA contends that Noxsel can rent or sell the garages only to HOA members and not to members of the general public. With regard to HOA assessments, the parties disagree on how much the assessments may be increased each year.
On appeal, Noxsel contends the trial court misinterpreted the covenants, conditions and restrictions (CC&Rs) for the Boquet Estates development (Boquet), as well as the 1977 conditional use permit (CUP) issued by the City of Upland (Upland). Noxsel also argues the court misapplied Civil Code section 1366. Noxsel seeks a reversal of the judgment and the award of attorney’s fees to the HOA. The fundamental contention advanced by Noxsel is that the CUP and the CC&Rs should be interpreted to allow sale or rental of the garages to anyone, not limited to owners of the Boquet condominiums. As the reviewing court, we have thoroughly examined the trial record and the appellate briefs submitted by the parties.[3] Like the trial court, we disagree with Noxsel’s proposed interpretation of the written documents. We conclude the CUP and the CC&Rs unambiguously prohibit Noxsel from selling or renting the garages to the general public. We conduct a combined review, engaging in independent contractual and statutory interpretation, and find the trial court did not abuse its discretion in enjoining Noxsel from selling or renting the 59 garages to the general public. Additionally, we affirm the trial court’s rulings on the amount and allocation of the HOA assessment fees and the trial court’s grant of attorney’s fees to the HOA. |
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A petition was filed in the juvenile court accusing Alex S. (the minor) of battery in violation of Penal Code section 242. Following an adjudication hearing the court found the allegations in the petition to be true beyond a reasonable doubt. The minor was placed on probation.
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Defendant George Moreland was convicted of multiple counts of violent sexual assault on two victims Moreland lured into his truck under the guise of hiring them to clean his house. The trial court sentenced Moreland to a total of 295 years in prison and imposed a $10,000 restitution fine.
On appeal, Moreland contends the trial court erred in admitting evidence of an uncharged offense and in instructing the jury that it could consider the charged offenses as evidence of his propensity to commit sex crimes. Moreland also argues the trial court erred in admitting the recording of a 911 call from one of the victims and in imposing the restitution fine. We find no error with respect to admission of evidence of the uncharged crime. Although we do find the trial court gave a somewhat confusing instruction with respect to use of each charged crime as proof of the other crime, the confusion, if any, was not prejudicial. We find no error in admission of the 911 recording and imposition of the restitution fine. Accordingly, we affirm the judgment of conviction. |
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Rick Concrete Construction, Inc. (Rick Concrete) appeals, and Employers Insurance Company of Wausau (Wausau) cross-appeals, from a judgment of the trial court resolving a dispute between the parties regarding Wausau's handling of third party liability and first party physical damage claims under a business auto policy issued by Wausau. The parties' dispute arose from a February 2006 fatal accident at a construction site in Murrieta, California, involving concrete pumping equipment leased by Rick Concrete.
The trial of this action occurred in two phases. The first phase, tried to the court in July 2008, involved Wausau's claims for declaratory relief regarding preliminary coverage issues, including whether the equipment involved in the accident was a covered "auto" under Wausau's policy, and whether the "operations" exclusion of the policy applied. The second phase, tried to a jury in March 2010, involved Rick Concrete's cross-claims for damages based on, among other allegations, Wausau's alleged breach of contract, bad faith and fraud in the handling of Rick Concrete's insurance claims. As reflected in the July 1, 2010 judgment, the trial court determined in the declaratory relief action that the equipment involved in the accident was a covered "auto," and the policy's "operations" exclusion did not apply. During the second phase of the trial, the court further ruled that Wausau brought the declaratory relief action reasonably and with proper cause. That ruling, and the trial court's order directing a verdict on Rick Concrete's fraud and misrepresentation claims, narrowed the cross-claims to those alleging Wausau's breach of contract and bad faith in making untimely payments on Rick Concrete's first party physical damage claim. In its special verdict issued after trial of the second phase of the case, the jury found that Wausau breached its contract with Rick Concrete by failing to properly pay the first party physical damage claims. The jury also found that Wausau unreasonably delayed the first of its two payments to Rick Concrete for the cost of repairs to the equipment damaged in the accident. However, the jury found that Wausau did not unreasonably delay the second payment for damage to the equipment—a payment Wausau made only after the trial court determined that Wausau was liable not just for Rick Concrete's actual costs of repair, but for its reasonable costs of repair. |
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