CA Unpub Decisions

In this dependency matter (Welf. & Inst. Code, 300 et seq.) S. T., a mother of minor children who were adjudged dependents of the juvenile court (Mother), challenges a visitation order made for one of the minor children when the court terminated its jurisdiction over the minor at a section 364 review hearing. Mother contends she did not receive proper notice of the hearing. She also contends the trial court erred when it did not afford her a hearing on issues relating to visitation with the minor. Court find Mothers contentions have merit and Court will reverse the order terminating dependency court jurisdiction over the minor child and the visitation order and remand the case for further proceedings.

P. v. Thomas

Filed 2/23/10 P. v. Thomas CA2/6





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWARD NOEL THOMAS,

Defendant and Appellant.
2d Crim. No. B216738

(Super. Ct. No. CR45419)

(Ventura County)


Edward Noel Thomas appeals the May 1, 2009 denial of his motion to reduce restitution fines imposed in 1999 after appellant was convicted by jury of robbery (Pen. Code 211),ex-felon in possession of a firearm ( 12021, subd. (a)(1)), and false imprisonment by violence ( 236). The jury found true allegations that appellant had personally used a firearm during the commission of the robbery and false imprisonment. ( 12022.53, subd. (b); 12022.5, subd. (a).) Appellant admitted one prior prison term ( 667.5, subd. (b)), one prior serious felony conviction ( 667, subd. (a)), and one prior conviction within the meaning of California's "Three Strikes" law ( 667, subds. (b)-(i); 1170.12).
On December 15, 1999, the trial court sentenced appellant to 27 years 4 months state prison and ordered appellant to pay $98 victim restitution ( 1202.4, subd. (f)), a $2,000 restitution fine ( 1202.4, subd. (b)), and a $2,000 parole revocation restitution fine ( 1202.45). Appellant was represented by counsel, did not object to the fines, or request that the trial court determine appellant's ability to pay the fines.
Court affirmed the conviction in an unpublished opinion on March 28, 2001. (B138135.)
On April 16, 2009, appellant filed a motion with the trial court to reduce the $2,000 restitution fines on the ground that the trial court, in imposing the fines, failed to conduct a hearing on appellant's ability to pay the fines. (See 1202.4, subd. (f)(1).) The motion was denied May 1, 2009.

Court appointed counsel to represent appellant in this appeal. After counsels examination of the record, she filed an opening brief in which no issues were raised. On December 8, 2009, Court advised appellant that he had 30 days within which to personally submit any contentions or issues he wished us to consider.Court received no response.

At the time of sentencing in the instant matter, appellant had been ordered to serve a two-year prison sentence previously imposed by the Orange County Superior Court. The Ventura County Superior Court selected the Orange County case as the principal term and confirmed the two-year base term. As to count 1 (transportation of methamphetamine), the court imposed one-third the middle term, which it ordered to run consecutive to the Orange County sentence. As to count 3 (conspiracy), the court selected the low base term of two years to run concurrent to both the Orange County sentence and the sentence in count 1. The court added three years for appellant's prior conviction (Health & Saf. Code, 11370.2, subd. (c)) for an aggregate term of six years.
Appellant requested a certificate of probable cause which the trial court granted. She argues that the court erred by imposing a concurrent sentence rather than staying the sentence on the conspiracy count. Court conclude that execution of sentence on count 3 must be stayed pursuant to section 654.

In this dependency matter (Welf. & Inst. Code, 300 et seq.)[1], S. T., a mother of minor children who were adjudged dependents of the juvenile court (Mother), challenges a visitation order made for one of the minor children when the court terminated its jurisdiction over the minor at a section 364 review hearing. Mother contends she did not receive proper notice of the hearing. She also contends the trial court erred when it did not afford her a hearing on issues relating to visitation with the minor. Court find Mothers contentions have merit and Court will reverse the order terminating dependency court jurisdiction over the minor child and the visitation order and remand the case for further proceedings.

Edward Noel Thomas appeals the May 1, 2009 denial of his motion to reduce restitution fines imposed in 1999 after appellant was convicted by jury of robbery (Pen. Code 211),[1]ex-felon in possession of a firearm ( 12021, subd. (a)(1)), and false imprisonment by violence ( 236). The jury found true allegations that appellant had personally used a firearm during the commission of the robbery and false imprisonment. ( 12022.53, subd. (b); 12022.5, subd. (a).) Appellant admitted one prior prison term ( 667.5, subd. (b)), one prior serious felony conviction ( 667, subd. (a)), and one prior conviction within the meaning of California's "Three Strikes" law ( 667, subds. (b)-(i); 1170.12).

On December 15, 1999, the trial court sentenced appellant to 27 years 4 months state prison and ordered appellant to pay $98 victim restitution ( 1202.4, subd. (f)), a $2,000 restitution fine ( 1202.4, subd. (b)), and a $2,000 parole revocation restitution fine ( 1202.45). Appellant was represented by counsel, did not object to the fines, or request that the trial court determine appellant's ability to pay the fines.
Court affirmed the conviction in an unpublished opinion on March 28, 2001. (B138135.)

Appellant Sherman Nesbitt was convicted, following a jury trial, of three counts of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). The jury found true the allegations that appellant personally used a firearm in the commission of the assaults within the meaning of section 12022.5, subdivision (a), inflicted great bodily injury on one of the victims within the meaning of section 12022.7, subdivision (a), served a prior prison term within the meaning of section 667.5, subdivision (b) and suffered a prior serious or violent felony within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). The trial court sentenced appellant to a total term of 22 years and eight months in state prison.

Alberto Cerniaz appeals his conviction by plea to possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)), entered after a motion to suppress evidence was denied (Pen. Code, 1538.5).[1] The trial court sentenced appellant to two years state prison, awarded presentence credits, and ordered appellant to pay a $30 court security fee ( 1465.8), a $100 drug program fee (Health & Saf. Code, 11372.7, subd. (a)), a $400 restitution fine ( 1202.4, subd. (b)), and a $400 parole revocation fine ( 1202.45).

This is an action for breach of contract and fraud involving the purchase of four parcels of real property in south Sacramento. Defendant sellers obtained summary judgment on the grounds of standing, res judicata, and statute of limitations.
We conclude that plaintiff Krishna Living Trust (the Trust), which was deeded the property in the purchase and which paid off a substantial promissory note for it, has standing to maintain this action.[1] We also conclude that res judicata does not apply and that the Trust satisfies the statute of limitations. Consequently, we shall reverse the judgment. The Trust had also moved to amend its complaint, which the trial court denied in light of the summary judgment ruling. Accordingly, we shall also reverse the order denying plaintiff leave to file its first amended complaint.

Francisco Pardo, M.D., appeals from a judgment entered in favor of University of California, San Diego, Medical Center (UCSDMC), after the trial court denied his petition for writ of administrative mandate brought under Code of Civil Procedure section 1094.5. In his petition, Pardo moved (1) to set aside the decision of the appeal board of UCSDMC (appeal board), which unanimously affirmed the decision of the judicial review committee (JRC) denying his application for reappointment to UCSDMC's medical staff and (2) to compel UCSDMC to accept his application for reappointment "with all the rights and privileges he previously enjoyed."

Defendant Gary Tyrone Hill entered a negotiated plea of no contest to possessing cocaine. (Health & Saf. Code, 11350, subd. (a).) The trial court suspended imposition of sentence and placed defendant on three years probation with various terms and conditions. On appeal, defendant contends, and the People concede, a condition of his probation is unconstitutionally overbroad. We accept the concession and shall modify the probation order.

In April 2008, defendant Mario Suarez pled no contest to possession of cocaine base and admitted a prior strike allegation. As a part of the negotiated plea, he was placed on Proposition 36 probation. On August 12, 2008, defendant admitted violating the terms of his probation and was reinstated on Proposition 36 probation. On August 22, 2008, defendant was arrested after an altercation with his girlfriend. While being transported to a detention facility, he kicked out the rear window of the patrol car, then put his legs out through the window and continued to collapse the side door of the patrol car. Defendant was ultimately released on bail and failed to appear in court as ordered. Defendant was charged with making criminal threats, assault with a deadly weapon, vandalism causing over $400 in damage, and misdemeanor resisting arrest. It was also alleged as to the criminal threats charge that defendant had personally used a deadly weapon, and that defendant had a prior juvenile adjudication which qualified as a strike. Defendant pled no contest to vandalism and admitted failing to appear while on bail, an additional count. He also admitted the prior strike allegation and a probation violation. The remaining counts and allegations were dismissed.

In 1987 a jury convicted Roderick Mathewson of second degree murder with the personal use of a firearm and the trial court sentenced him to prison for 17 years to life. Mathewson, now 41 years old, has remained in prison for the past 21 years and for the last 12 years has been an exemplary inmate. He became eligible for parole in 1998. After three unsuccessful parole hearings, the Board of Parole Hearings (the Board) again found him unsuitable for parole at his 2008 suitability hearing. After the trial court denied a request for habeas relief, Mathewson filed the present petition for writ of habeas corpus. Mathewson essentially asserts the Board's conclusion violates his due process to parole because it is without evidentiary support; it was improperly based primarily upon the circumstances of his commitment offense and there is no evidence he poses a current risk of danger to public safety. We conclude the record does not contain "some evidence" to support the Board's ultimate conclusion that Mathewson was unsuitable for parole because he currently posed an unreasonable risk to public safety. Accordingly, court grant Mathewson habeas relief.

T.S. (petitioner), the mother of the minor, seeks an extraordinary writ to vacate the orders of the juvenile court denying reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 (further section references are to the Welfare and Institutions Code). (Cal. Rules of Court, rule 8.452.) Petitioner contends there was insufficient evidence to support the denial of reunification services. She also claims there was inadequate compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) We agree with the latter of these contentions insofar as the notice failed to indicate that the minors maternal relatives, in addition to her paternal relatives, claimed Indian heritage. Accordingly, we shall issue a peremptory writ of mandate directing the juvenile court to vacate its orders and order new notices to issue in compliance with the ICWA, to include information concerning the Indian heritage claimed by petitioner.

Yesenia R. appeals orders made at the jurisdictional and dispositional hearing regarding her sons, David B. and Fabian R. She contends there was not substantial evidence to support the jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b). Court affirm the orders.