CA Unpub Decisions

Ivery Lyn Bryant appeals the judgment entered after a jury convicted her of second degree robbery (Pen. Code,[1] 211), petty theft with prior convictions ( 666/484, subd. (a)), and misdemeanor battery ( 242). Prior to trial, appellant stipulated that she had suffered four prior theft-related convictions. Following her conviction, she admitted allegations that she had served two prior prison terms ( 667.5, subd. (b)), and was on felony probation when the current offenses were committed ( 1203, subd. (k)). The trial court sentenced her to a total term of five years eight months in state prison. On appeal, she challenges the sufficiency of the evidence supporting her robbery and theft convictions. She also contends the court erred in admitting evidence of the facts underlying two of her prior theft convictions pursuant to Evidence Code section 1101, subdivision (b). Court affirm.

David Benavidez Aguilar appeals from his conviction after jury trial of attempted willful, deliberate, premeditated murder. (Pen. Code, 664/187.)[1] The jury also convicted him of street terrorism and assault with a deadly weapon, and found true allegations that he committed the offenses for the benefit of a criminal street gang and personally used a handgun in committing the attempted murder. ( 186.22, subds. (a) & (b)(1)(C); 245, subd. (a)(1); 12022.5, subd. (a)(1).) The court sentenced him to 25 years to life, including 15 years to life for attempted murder, and a 10-year consecutive gang enhancement. The court stayed the sentence for the assault and street terrorism offenses pursuant to section 654. Appellant contends that there is insufficient evidence to support the attempted first degree murder conviction; that prejudicial gang expert testimony provided the only evidence that could establish an intent to kill; that trial counsel's failure to object to improper evidence and argument constituted ineffective assistance of counsel; and that the court erred in imposing the 10-year gang enhancement. Respondent concedes the sentencing error. Court modify the sentence and otherwise affirm.

Father, Charles P., appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26[1]) over his minor sons, Joshua P. and Nicholas P., and denying a petition for change of order ( 388) by paternal aunt, Patricia A. Patricia appeals from the same order. Both contend the juvenile court abused its discretion in denying Patricias request that the boys be placed with her. Court affirm.

Gail Bray appeals the denial of her petition for writ of mandate challenging an order of the Department of Motor Vehicles (Department) revoking her driver's license based on her arrest for driving under the influence and refusal to submit to chemical testing under the implied consent law. On the day of the hearing, Bray requested a continuance to obtain new counsel. The Department granted her one day to do so. On appeal, Bray asserts she was denied due process by Department's failure to grant a longer continuance. Bray has failed to submit a record adequate for our review and court therefore affirm the order.

A jury convicted defendant Anthony McKinney of corporal injury to a cohabitant (count 1Pen. Code 273.5, subd. (a)) and the lesser included offense of simple assault on count 4 (Pen. Code, 240), a misdemeanor. The jury further found true allegations that defendant had suffered four prior strike convictions. After denying defendants Romero motion, the court sentenced defendant to 25 years to life on count 1.
On appeal defendant makes five contentions: (1) the courts admission of defendants prior acts of domestic violence pursuant to Evidence Code section 1109 violated defendants federal due process rights; (2) the trial court failed to properly balance the probative value of defendants prior acts with their prejudicial effect; (3) the courts instruction of the jury with CALCRIM No. 852, the standard jury instruction given when section 1109 evidence is admitted at trial, violated defendants due process rights; (4) the trial court abused its discretion in declining to strike three of defendants four prior strike convictions; and (5) the trial courts sentence violates state and federal constitutional prohibitions against cruel and/or unusual punishment. Court affirm the judgment in full.

On appeal, defendant contends (1) the probation condition requiring him to obtain the permission of his probation officer before he changes his residence is unconstitutional; (2) the probation condition prohibiting him from associating with any unrelated person on probation or parole should be modified to include a knowledge requirement; and (3) the trial court erred in imposing various fines, fees, and costs as conditions of probation. We agree that these challenged probation conditions must be modified. In all other respects, Court affirm the judgment.

On July 4, 2007, at approximately 2:30 a.m., Louis Dawson and a passenger in his vehicle, Marlon Fordham, were travelling westbound on a thoroughfare in Rialto. As Dawson merged into a left turn lane, a white car crossed the concrete median and crashed head-on into Dawsons vehicle. Defendant, the driver of the white car, attempted to restart his car. He was unsuccessful, and the car rolled to the curb, where it stopped. Defendant got out of the car. Instead of responding to inquiries from Dawson and Fordham, defendant took papers from his car and threw them into a nearby trash dumpster. Defendant got more papers and threw them into the dumpster. He then left the scene without contacting or responding to Dawson and Fordham.

On appeal, Father C.C. contends: (1) the juvenile court abused its discretion when it employed the wrong legal test in determining that the beneficial parent-child relationship exception to termination of parental rights did not apply; (2) the juvenile court erred when it failed to apply the beneficial parent-child relationship exception to adoption; and (3) the juvenile court erred when it failed to apply the beneficial sibling relationship exception to adoption.
Father S.G. joins in and adopts by reference each and every argument raised by and as set forth in Mother, Father C.C., and minor M.S.s briefs insofar as they benefit his interests.
Court reject the above contentions and affirm the judgment.

Christopher Faber (Faber) sued K. Hovnanian Homes, Inc. (KHH) for damages based upon claims of (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) negligence; (4) unfair business practices; (5) intentional infliction of emotional distress; and (6) negligent infliction of emotional distress. In short, Faber was KHHs employee, and he sued KHH because he believed that KHH breached a contractual duty to provide Faber with long-term disability benefits. The trial court granted KHHs motion for summary judgment. (Code Civ. Proc., 437c.) Faber contends that the trial court erred by granting KHHs motion because (1) the trial court improperly based its ruling upon an incorrect resuscitation of the facts, and (2) material issues of fact exist in regard to all of the foregoing causes of action. Court affirm the judgment.

Mother and father appeal from an order terminating their parental rights to their son M.M. (born in 2002) under Welfare and Institutions Code section 366.26. Father contends in his appeal that the order terminating parental rights should be reversed because M.M. was not generally adoptable and, at the time of the section 366.26 hearing (.26 hearing), it was not likely he would be adopted in the foreseeable future. Father also argues the trial court erred in relieving his trial counsel at the end of the .26 hearing in the absence of fathers consent or a noticed motion.
Mother joins in fathers contentions and further argues in her separate appeal that the order terminating parental rights should be reversed because the Department of Public Social Services (DPSS) failed to prove M.M. was adoptable. Father joins in mothers arguments on appeal.
Court conclude there was substantial evidence establishing that M.M. was adoptable. We further conclude dismissal of fathers attorney after the juvenile court terminated parental rights does not constitute reversible error. Court thus affirm the judgment.

S. was born in February 2006 with severe birth defects, including intrauterine growth restriction (later determined to be Russell-Silver Syndrome, a form of dwarfism), club feet, micrognathia (a small jaw which makes feeding difficult) and hypertonia (stiffening of the muscles).
Father had a long criminal history, as well as a history of drug abuse and possible mental illness. He was incarcerated when S. was born, awaiting trial for first degree burglary. He had been in custody since September 6, 2005, and remained in custody throughout the dependency proceedings. He was not married to S.s mother and was not listed on the birth certificate. There is no indication in the record that he was living with her at the time S. was conceived.

S.N. (father) appeals from the juvenile courts order reducing his visitation with his sons to once a month, supervised visits. He also claims the court erred in failing to make adequate inquiry into his complaints about counsel. Finding no abuse of discretion, Court affirm.

Appellants appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on October 14, 2009, Court invited appellant to submit additional briefing. To date, he has not done so.

Martin Gaytan Robles was charged with (1) attempted second degree robbery (Pen. Code, 664/211); and (2) carrying a dirk or dagger (Pen. Code, 12020, subd. (a)). At trial, the prosecution was allowed to elicit evidence of Robless poverty as a motive for the attempted robbery. Robles was subsequently convicted of both counts. Robles was sentenced to two years for count 1, and two years for count 2, to run concurrently. He was given time credits of 193 days. On appeal, Robles contends that the court erred in allowing the prosecutor to elicit evidence of his poverty, and further, that the error was prejudicial. Court disagree and will affirm.