CA Unpub Decisions

On appeal, Menjivar contends his attempted murder conviction must be reversed, because the evidence is insufficient to establish an intent to kill or that the attempted murder was willful, deliberate, and premeditated. He also contends the trial court should not have permitted the victim to testify and, by instructing the jury with CALCRIM No. 331, the court impermissibly reduced the Peoples burden of proof and allowed the jury to convict him on less than the constitutionally mandated proof beyond a reasonable doubt. Court disagree.

On December 2, 2008, the trial court resentenced Diaz to the middle term of six years on count 10, sexual penetration of a person prevented from resisting due to intoxication, anesthesia or controlled substance ( 289, subd. (e)). The court imposed one-third the middle term sentence of two years on counts 11 and 12, oral copulation by means of anesthesia or controlled substance ( 288a, subd. (i)), to be served consecutively. On counts 13 and 14, rape by intoxication, anesthesia or controlled substance ( 261, subd. (a)(3)), the trial court imposed consecutive middle terms of six years under section 667.6, subdivision (c). Diaz received 1,453 days of presentence custody credit. The court ordered him to pay a $200 restitution fine and imposed and suspended a parole revocation fine pursuant to section 1202.45. This appeal followed.
On May 20, 2009, Diaz through counsel submitted an opening brief in which no issues were raised and asked this court for an independent review of the record under People v. Wende (1979) 25 Cal.3d 436. On September 4, 2009, Diaz through counsel filed a declaration raising issues concerning the calculation of his custody credit and status of two of his convictions as serious or violent felonies. In light of this declaration, Court asked the People to file a respondents brief addressing the issues raised by Diazs counsel.

Daniel G. Drommerhausen III appeals from an order appointing a receiver. The receiver was appointed to aid in the enforcement of judgments rendered against Mr. Drommerhausen. Mr. Drommerhausen also appeals from a preliminary injunction issued against him. The preliminary injunction enjoined Mr. Drommerhausen from interfering with the receivers actions. These orders were entered in favor of Debra D. Hutchings, as the sole successor trustee of the Drommerhausen Family Trust (the trustee). Mr. Drommerhausen also seeks review of an order denying a stay of the order. Court affirm the receivership and injunctive orders. The purported appeal from the stay order is dismissed.

Defendant, a law firm, represented plaintiff in a malicious prosecution action against his former lessor. Defendant subsequently withdrew from representation, plaintiff acquired new counsel and the malicious prosecution action settled. The settlement was subject to defendants lien for attorney fees and costs. Defendant sought to recover attorney fees and costs from plaintiff through arbitration. On June 18, 2007, Claim Administrator R. Timothy Stone of ADR Services, Inc. wrote to the parties to acknowledge that Retired Associate Justice John Zebrowski had been engaged to serve as the neutral arbitrator. Mr. Stone also provided the parties with the arbitrators June 18, 2007 disclosure statement.

Appellant Thomas Ray Martinez pled guilty, in October 2008, to one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) and one count of possession of a narcotics smoking device in violation of section 11364, subdivision (a). He also admitted the truth of the allegations that he had suffered two prior serious or violent felony convictions within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12. The trial court placed appellant on three years formal probation under Proposition 36 for the methamphetamine possession offense and suspended sentence on the section 11364 offense.
On December 9, 2008, the court revoked appellant's probation. Following a hearing on March 16, 2009, the trial court found that appellant had violated probation and sentenced him to the mid-term of two years in state prison, doubled to four years pursuant to the "Three Strikes" law.

A jury found defendants Ricky Lynn Williams and Richard Lee Atkins, Jr., guilty of second degree robbery with personal use of a firearm. Williams was found guilty of the additional charge of assault with an assault weapon and Atkins of felon in possession of a firearm and an enhancement for wearing body armor during the robbery. The court found Atkins had a prior serious felony conviction.
The court sentenced Williams to 12 years in prison and Atkins to 23 years.
On appeal, defendants raise contentions relating to jury selection, evidence, instructions, prosecutorial misconduct, and cumulative prejudice. They join in each others contentions. Disagreeing with these contentions, Court affirm the judgment.

K.T., born in August 2003, is the offspring of a chronically homeless, drug-addicted, mentally disturbed biological mother, D.T., and a biological father who has played no part in K.T.s life. After conceiving K.T., D.T. became romantically involved with the son of L.M. and L.M.s then-husband T.M., a police detective for the City of Chico. The couple lived with L.M. and T.M. until K.T. was four months old, then moved out, leaving him behind. D.T. gave L.M. a signed paper authorizing her to care for K.T., whom L.M. and T.M. thought of as a grandson, but no dependency or adoption proceedings were initiated at that time. (L.M.s and T.M.s son, who never held himself out as K.T.s father, subsequently left D.T.) From August 2006 to September 2007, Butte County Childrens Services, a division of the countys Department of Employment and Social Services (the department), repeatedly received reports that D.T. was picking up K.T., disappearing with him, and either taking him along on her wanderings or leaving him with random persons.
On September 13, 2007, after L.M. had filed a missing persons report, Chico police found D.T. and K.T. in a filthy sleeping bag on the floor of an apartment complex laundry room. The police detained K.T.

T.W. (Mother) and R.W. (Father), the parents of 10-year-old A.W., appeal from an order of the Sacramento County juvenile court terminating their parental rights. On appeal, the parents contend the juvenile court erred by failing to apply the sibling relationship exception to termination. (Welf. & Inst. Code, 366.26, subd. (c)(1)(B)(v).) Court shall affirm the judgment.

Appellant, the mother of the minor, appeals from the juvenile courts order terminating parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant claims that inquiry and notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) were insufficient. Concluding any error was harmless, court shall affirm.

Defendant Carlos Bonilla pled no contest to using another persons identity for an unlawful purpose on April 19, 2008, and admitted he had a strike conviction. In exchange, 37 other related felony counts and 3 prior prison term allegations were to be dismissed, with the understanding that the facts of those counts could be used at sentencing, and that the federal government would not prosecute defendant. Defendant was also promised a six-year prison term. The trial court sentenced defendant to six years in prison, and defendant timely filed this appeal.
On appeal, defendant contends, and the People concede, that the trial court neglected to dismiss the 37 counts and 3 prior prison term allegations, as agreed in the plea agreement. Court accept this concession of error.
Defendant also contends the trial court abused its discretion by imposing a $1,200 restitution fine, because he has no assets, no job prospects, and large child support obligations, therefore he lacks the ability to pay such a large fine. Court find no abuse of discretion on this record.

Defendant Marquees Andreaus Bradford pled no contest to conspiracy to commit first degree robbery, and admitted a strike, in exchange for a stipulated sentence of eight years and the dismissal of other charges and the dismissal of a separate case.
The factual basis for the plea showed that on or about May 16, 2008, defendant conspired to commit first degree robbery of a person near an ATM machine, and personally possessed a firearm which he pointed at the victim. Defendants strike was a 2006 delinquency adjudication for robbery.
The trial court sentenced defendant to eight years in prison, and dismissed the other charges and the other case, as called for by the plea bargain. Defendant timely filed his notice of appeal.

The Reynos filed this action alleging wrongful foreclosure on their property by defendants Option One, Litton and Residential Funding. On March 3, 2009, the trial court issued a minute order sustaining defendants' demurrers to the first amended complaint without leave to amend. Residential Funding and Litton filed and served a notice of the ruling on March 5, 2009. The trial court then signed and entered an order dated March 17, 2009, formally sustaining the demurrers without leave to amend. Neither the March 3 nor the March 17 order purported to dismiss the action against any defendant.
On March 13, the court held a case management conference at which no party appeared. The court issued a minute order dismissing the entire action without prejudice "for failure to appear and lack of prosecution." The clerk of the court served a notice of dismissal, which attached the minute order, upon all parties on March 13.

Tracy Darnell Shipman entered a negotiated guilty plea to driving under the influence (DUI) of alcohol (Veh. Code, 23152, subd. (a)) and admitted he had a previous felony DUI conviction within 10 years of the current offense (Veh. Code, 23550.5, subd. (a)). Shipman also admitted he had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The plea agreement called for a stipulated prison term of five years to run concurrent with his parole violation custody in another case. The trial court sentenced Shipman to five years in prison: the two-year middle term plus three one-year prison term enhancements.

A modification decision.