CA Unpub Decisions

Alameda County Social Services Agency (the agency) filed a petition pursuant to section 300, subdivisions (b) and (c) of the Welfare and Institutions Code[1] on behalf of Eva P., Olivia P., and Grant P., the children of Philip P. (father) and Michele P. (mother). At the time the agency filed the petition, the children were living with mother, father’s former wife. Following a jurisdictional and dispositional hearing, the juvenile court found the allegations in the amended petition to be true and placed the children in the home of the children’s maternal grandparents. Father appeals and contends that the evidence did not support the jurisdictional findings as to him. He also maintains that insufficient evidence supported the court’s refusal to place the children with him. Finally, he challenges the visitation order and asserts that the trial court unlawfully delegated to the agency its authority to determine whether visits should occur. We conclude that his objection to the visitation order is moot and dismiss that part of the appeal. We are not persuaded by father’s other challenges on appeal and affirm the jurisdictional and dispositional orders.

On December 4, 2008, Tajinder Singh Bedi was charged by complaint with committing a lewd act upon Jane Doe I (Doe I), a child under age 14 (Pen. Code, § 288, subd. (a) (Count I)), committing a lewd act upon Jane Doe II (Doe II), a child age 14-15 (Pen. Code, § 288, subd. (c)(1) (Count II)), and committing sexual battery by restraint upon Melissa F., a 22-year-old woman (Pen. Code, § 243.4, subd. (a) (Count III)). The prosecution was unable to locate Melissa F. prior to the preliminary hearing. Count III was dismissed by June 11, 2010, when appellant was charged by information with Counts I and II.
A 12-day jury trial commenced on February 15, 2011. On the first day of trial, respondent filed a motion in limine requesting the court admit the testimony of Melissa F. regarding the facts surrounding the dismissed sexual battery. On February 17, 2011, appellant filed a motion in limine seeking to exclude the Melissa F. testimony. The court heard oral arguments on the motions that same day, and granted the motion to allow the Melissa F. testimony. During the trial, testimony was heard by the victims of the first two counts, Doe I and Doe II, and Melissa F., the alleged victim of the dismissed count. The jury found appellant guilty on both counts.

Jesus Leonardo Barriere (appellant) was convicted, following a jury trial, of 11 counts of forcible lewd and lascivious acts upon a child, one count of lewd acts upon a child under age 14, two counts of oral copulation of a minor under age 14, and one count of soliciting a minor to use a controlled substance. On appeal, appellant contends (1) the trial court improperly denied his Wheeler/Batson[1] motion challenging the prosecutor’s peremptory challenge of a prospective juror; (2) the court abused its discretion and violated appellant’s constitutional rights when it admitted evidence of prior sexual offenses, pursuant to Evidence Code section 1108[2]; (3) the instruction regarding appellant’s prior sexual offenses, pursuant to CALCRIM No. 1191, violated his rights to due process and proof beyond a reasonable doubt; (4) the court improperly pressured the jury to reach a verdict when it was deadlocked; (5) the court erred in denying appellant’s new trial motion based on the jury’s receipt of an unredacted restraining order declaration; (6) the six-year determinate sentence and the Penal Code section 12022.3 enhancement for count six must be stricken; (7) the restitution fine must be reduced to $10,000; and (8) he is entitled to additional presentence credits. We shall remand the matter for resentencing on count six, correction of the improper restitution fine imposed, and recalculation of appellant’s presentence credits. We shall otherwise affirm the judgment.

Defendant City of Palo Alto (City) conditions its approval of certain residential development applications upon the developer’s compliance with City’s below market rate (BMR) housing program. Plaintiffs Sterling Park, L.P. and Classic Communities, Inc., sued City, challenging the BMR housing exactions City required for approval of their development. The trial court granted summary judgment for City, finding that the complaint was time-barred. Plaintiffs had argued that the action was governed by a portion of the Mitigation Fee Act (Gov. Code, §§ 66020, 66021),[1] which allows a developer to obtain reimbursement of certain development fees paid under protest. Under those sections, the statute of limitations does not begin to run until City gives the developer notice of the amount of the fees and the right to file a protest. (§ 66060, subd. (d)(1).) Plaintiffs claimed that City never gave them the notice required to trigger the running of the statute and, therefore, their suit was filed timely.
The trial court rejected plaintiffs’ position and accepted City’s contention that the applicable statute of limitations is section 66499.37, which gives a plaintiff 90 days from the date of the “decision . . . concerning a subdivision” to challenge the decision. Since the decision conditioning plaintiffs’ subdivision upon compliance with the BMR program occurred well over a year before suit was filed, the time to file suit had expired. The court allowed the defense even though City had not cited section 66499.37 in its answer. We shall affirm.

Defendant Maria C. (mother) appeals from an order terminating her parental rights to now 10-and-a-half I.H. and now almost 9-year-old D.H. (boys). She claims the court should have applied the sibling relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v); all further statutory references are to this code) to termination. We disagree and affirm.

Jessica J. in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing[1] as to her three-year-old daughter D.J.[2] and 23-month-old son O.J. We conclude her petition fails to comport with the procedural requirements of California Rules of Court, rule 8.452 and dismiss the petition as facially inadequate.

Jeremiah P., father, appeals from the juvenile court’s judgment pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights to Braxton P.[1] Father argues that the Kern County Department of Human Services (department) failed to make a proper inquiry of his child’s Indian ancestry pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We reject father’s contention and affirm the juvenile court’s judgment.

Barbara H. is the mother of two children, 17-year-old Alyssa S. and 13-year-old C.H., who were adjudged juvenile dependents and removed from her custody in 2008. Since that time and prior to this appeal, mother in propria persona has filed 15 notices of appeal and notices of intent to file writ petitions (Cal. Rules of Court, rule 8.452) relating to the children’s dependency. Mother has not prevailed in any of these matters and our decisions in them are final.
Respondent Tulare County Health and Human Services Agency (agency) moves to declare mother a vexatious litigant. On review, we conclude mother is a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(1)[1] and should be subject to a prefiling order (§ 391.7). The appeal is otherwise dismissed as abandoned.

A jury convicted appellant, Ignacio Rodriguez Aviles, Jr., of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and found true an enhancement allegation that he personally used a deadly or dangerous weapon in the commission of that offense (Pen. Code, § 12022, subd. (b)(1)). The court imposed a prison term of six years, consisting of the five-year upper term on the substantive offense and one year on the enhancement.
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, apparently in response to this court’s invitation to submit additional briefing, has submitted a brief in which he argues, as best we can determine, that the evidence was insufficient to support his conviction and that he was denied his right to the effective assistance of counsel. We affirm.

On July 29, 2010, appellant, Yusef Lamont Pierce, was charged in a criminal complaint with four counts of second degree robbery involving different victims (Pen. Code, § 211, counts 1-4),[1] kidnapping (§ 209, subd. (b)(1), count 5), four counts of false imprisonment, again involving different victims (§ 236, counts 6-9), being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 10), being a felon in possession of ammunition (§ 12316, subd. (b)(1), count 11), felony evasion of a peace officer while operating a motor vehicle (Veh. Code, § 2800.2, subd. (a), count 12), misdemeanor hit and run driving (Veh. Code, § 20002, subd. (a), count 13), and misdemeanor resisting arrest (§ 148, subd. (a)(1), count 14). Counts 1 through 5 alleged that appellant used a firearm within the meaning of section 12022.53, subdivision (b). Counts 6 through 9 alleged a gun use enhancement (§ 12022.5, subd. (a)). Appellant was also charged with a prior prison term enhancement (§ 667.5, subd. (b)).
On February 14, 2011, appellant entered into a plea agreement. Under the terms of the plea agreement, appellant would admit two robbery counts, the firearm allegation for each of those counts, and the prior prison term enhancement. Also under the terms of the agreement, appellant would receive a stipulated prison term of 19 years 4 months. Appellant executed a felony advisement of rights that set forth the terms of the plea agreement as well as a waiver of his rights pursuant to Boykin/Tahl.[2] The court advised appellant of, and appellant waived, his constitutional rights.[3] The parties stipulated to a factual basis for the plea.[4] Appellant pled no contest to two counts of second degree robbery and one count of felony evasion of a peace officer. Appellant admitted two violations of section 12022.53, subdivision (b) and the prior prison term enhancement. The remaining allegations were dismissed by the trial court upon the motion of the People.

Following a contested jurisdiction hearing, the juvenile court found true allegations set forth in a juvenile wardship petition that appellant Daniel G. committed (1) first degree burglary, a serious and violent felony (Pen. Code, §§ 459, 1192.7, subd. (c), 667.5, subd. (c))[1] for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) (count 1), (2) receiving stolen property (§ 496, subd. (a)) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) (count 2), (3) participation in a criminal street gang, a serious felony (§§ 186.22, subd. (a), 1192.7, subd. (c)) (count 3), and (4) grand theft of a firearm (§ 487, subd. (d)(2)) (count 4).[2] The court granted Daniel’s motion to dismiss a fifth count alleged in the petition pursuant to Welfare and Institutions Code section 701.1. Following the subsequent disposition hearing, the court declared Daniel a ward of the juvenile court and ordered him to serve 90 days in juvenile hall. The court calculated Daniel’s maximum term of confinement as 19 years.
On appeal, Daniel contends (1) the evidence is insufficient to sustain the juvenile court’s findings that he committed the charged offenses and enhancements, and (2) his maximum term of confinement violated section 654. We find merit to Daniel’s first contention with respect to counts 1 and 4, and reverse the court’s true findings as to those counts, as well as the gang enhancement attached to count 1, and remand for a new dispositional hearing. In all other respects, we will affirm.

This appeal involves a judgment of conviction relating to possession and transportation of marijuana. The appellant was the subject of a surveillance project conducted by a special unit of the Tulare County Sheriff's Department. The surveillance activity was based on information provided by a confidential informant. The appellant contends, among other things, that his right to a fair trial was compromised by nondisclosure of the identity of the informant and denial of the right to cross examine the informant. We will affirm the judgment.

Following a June 2010 mistrial in which the jury was unable to reach a verdict, in November 2010 defendant and appellant Delone Nieves was retried before a second jury and found guilty as charged of the first degree premeditated murder of Steven Lewis. (Pen. Code, § 187, subd. (a), count 1.)[1] The jury in defendant’s second trial also found that defendant committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)), and personally and intentionally discharged a firearm causing great bodily injury or death in the commission of the murder (§ 12022.53, subds. (d), (e)). Defendant was sentenced to 50 years to life, 25 years to life for the murder plus 25 years to life for the discharge enhancement.

Following convictions for forcible rape and residential burglary, defendant Johnny Martin Ware was sentenced to 25 years to life for the forcible rape under the one strike law. (Pen. Code, § 667.61, subds (b), (d)(4).) He claims this sentence must be reduced to 15 years to life because, although the jury found he committed the forcible rape during the commission of a burglary, justifying a 15-year-to-life sentence (Pen. Code, § 667.61, subds. (b), (e)(2)), the jury was not asked to determine and did not find he intended to commit the forcible rape when he entered the victim’s residence, the finding necessary to justify the 25-year-to-life sentence (Pen. Code, § 667.61, subds. (b), (d)).[1] We agree, and reduce defendant’s sentence for forcible rape from 25 to 15 years to life. Defendant raises one other claim of error—that the trial court did not have authority to order him to pay a $79.86 booking fee within 365 days of his release from local custody. (Gov. Code, § 29550.1.) We reject this claim and affirm the judgment in all other respects.