CA Unpub Decisions

It is ordered that the opinion filed herein on January 21, 2010 be modified as follows:
On page 11, the language under the heading DISPOSITION is stricken and the following language inserted: The courts February 4, 2009 jurisdictional order is reversed. The April 27, 2009 dispositional order and all subsequent orders predicated on the February 4, 2009 jurisdictional order are moot. Any subsequent jurisdictional order made under section 342 while the appeal was pending, and any subsequent orders predicated on such jurisdictional order, are not affected.

Between February 2005 and June 2008, Reynaldo Salgado committed multiple lewd acts on Kimberly C., a child under the age of 14 years old, while they were living in the same home with Kimberlys younger brother. Salgado was the childrens relative and guardian, and they knew him as daddy. Police arrested Salgado in August 2008.

Starmika LaJarvis Kizzee appeals from the judgment entered following a jury trial in which she was convicted of the crime of false personation (Pen. Code, 529) and her admission that she suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)(d); 667, subds. (b)(i)). She was sentenced to prison for the middle term of two years, doubled by reason of her prior strike conviction to four years.

Horacessa Robinson appeals from the judgment entered following her no contest plea to one count of second degree robbery (Pen. Code, 211) and her admission that she suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law. (Pen. Code, 1170.12, subds. (a) (d) and 667, subds. (b) (i).) Pursuant to the negotiated plea, a second count of first degree robbery was dismissed and appellant was sentenced to prison for two years consecutive to a five-year term in case No. NA077541. The two-year term consisted of one-third the middle term of three years, or one year, doubled by reason of her prior strike conviction. Her request for a certificate of probable cause was granted.

On October 30, 2006, the Los Angeles Department of Children and Family Services (the Department) received a referral alleging that minors parents were homeless and were sending the child to school hungry, dirty, and with rotting teeth. On
November 2, 2006, the social worker interviewed the parents, who said they had not been homeless for long. Although there was no food, refrigerator, or stove in the motel room in which the family was residing, the parents insisted that minor was well fed. They also claimed that minor received regular dental care at a clinic in Whittier, but they did know the date of her last dental examination.

T.S. ( mother) appeals from the findings and orders of June 30, 2009, denying her petition for a change of order under Welfare and Institutions Code section 388[1]and terminating parental rights to her son, J.S. She contends denial of the section 388 petition was an abuse of discretion. She further contends the dependency court abused its discretion in failing to review the Department of Children and Family Servicess (the Department) denial of a waiver of maternal grandmothers criminal convictions. Denial of the section 388 petition was not an abuse of discretion. The contention the dependency court failed to review the Departments denial of a waiver was forfeited by mothers failure to request the relief in the dependency court. Accordingly, Court affirm the judgment.

An information accused defendant Anthony Gabay of 16 counts of lewd and lascivious acts with a child under age 14 (Pen. Code, 288, subd. (a)[1]; counts one through fifteen and seventeen), and one count of forcible lewd acts on a child under age 14 ( 288, subd. (b)(1); count sixteen). The information further alleged defendant committed the offenses against two or more victims. ( 667.61, subd. (e)(5).)

A jury convicted defendant of counts one, four through ten, thirteen, and fifteen through seventeen. The special allegation was found to be true. Defendant was acquitted of the remaining counts. He was sentenced to state prison for 60 years to life, consisting of four consecutive terms of 15 years to life on counts one, thirteen, fifteen, and sixteen. Concurrent terms were imposed on the remaining counts.

On appeal, defendant contends: (1) count seventeen must be dismissed because the statute of limitations had elapsed and was not revived by section 803, subdivision (f); and (2) count sixteen (forcible lewd acts with a child) must be reversed because the evidence supported a jury instruction on the lesser included offense of lewd acts with a child, but the instruction was neither requested nor given sua sponte. Court affirm the judgment.

A jury found April Del Toro guilty of possession, use or control of a false compartment with intent to store, conceal, smuggle or transport a controlled substance within the false compartment (false compartment activity) (Health & Saf. Code,
11366.8, subd. (a), count 4) and conspiracy to commit a crime relating to false compartment activity (Pen. Code, 182, subd. (a)(1), count 8.) The jury found true that Del Toro committed one or more overt acts related to the conspiracy. he court denied probation and sentenced her to the middle term of two years in state prison on count 4, and imposed but stayed the sentence on count 8. (Pen. Code, 654.)

Anna Martorella appeals a superior court order finding that changed circumstances justified awarding Omar Madrigal sole physical custody of their child. Martorella contends there is insufficient evidence to support the court's changed circumstances finding. In addition, Martorella contends there is sufficient evidence to support the court's determination the custody change was in the best interest of the child. Martorella further contends the court abused its discretion by failing to apply the presumption in Family Code section 3044 that awarding sole physical custody of a child to a parent who has committed domestic violence against the other parent within the previous five years is detrimental to the best interest of the child. Court affirm the order.

Christopher Boyd Shaplin pleaded guilty to committing a lewd act upon Alyssa S., a child under the age of 14 (Pen. Code,[1] 288 subd. (a)), and admitted an allegation he had substantial sexual conduct with the victim. ( 1203.066, subd. (a)(8).) In exchange for his plea, the People stipulated to a recommended sentence of three years in prison and agreed to dismiss the remaining counts and allegations. The court sentenced Shaplin to three years in prison and issued a criminal protective order under section 1203.097, prohibiting him from having any contact with the victims, Alyssa S. and Isabella D., for a period of 10 years from the date of sentencing. The court stated:
"[Shaplin] is to not have any contact with Alyssa S. or Isabel D. This stay-away order is for ten years from today's date. He is to not have any contact with them in person, electronically, by phone, by text message, by writing or through any third party except his attorney. He is not to come within 100 yards of them, their home, their employment, or their vehicle. . . . If this stay away order is violated, that, in and of itself, is a violation that subjects you to additional time in state prison."
On appeal, Shaplin contends the court exceeded its sentencing jurisdiction by prohibiting him from having contact with the victims. The People concede the point but argue the order should be modified to provide for no visitation under section 1202.05. Court modify the sentencing order prohibiting contact between Shaplin and the victims to specify there be no visitation between Shaplin and the victims. We affirm the judgment as modified.

Defendant A.L. Wisdom loaned money to plaintiffs Richard and Kathryne Gilbert. The loan was evidenced by a promissory note and was secured by a deed of trust on the Gilberts real property. After Wisdom commenced nonjudicial foreclosure proceedings, the Gilberts sued to enjoin the foreclosure and to cancel the interest on the note on the ground that it was usurious. The trial court granted the Gilberts motion for summary adjudication as to the cause of action for cancellation of interest and subsequently entered judgment on the remaining causes of action based upon an apparent settlement agreement between the parties.

In a prior appeal in this case, we held that the trial court properly determined that the interest rate on the promissory note was usurious and that interest was properly cancelled, but Court reversed the judgment because the proceedings regarding the purported settlement agreement and the entry of judgment were flawed. (Court will refer to our prior unpublished opinion as Gilbert I.)

On November 28, 2008, defendant was observed in a Rite Aid drugstore by an employee who recognized him as someone who had committed thefts in the store previously. The employee contacted the store manager who also recognized defendant and walked toward him. Defendant was standing near the front of the store with three boxes of cologne and a pair of socks. The manager told defendant he needed to come back to talk to her. Defendant threw the boxes of cologne at her and left the store with the socks in his possession, and without paying for them. The manager gave a description of defendant to police. An employee followed defendant until he went to a gas station and this information was relayed to the police. An officer arrived and found defendant in a bathroom at the gas station, with the pair of socks still in his possession. Defendant was subsequently charged with petty theft with a prior theft-related conviction. (Pen. Code[1], 666.) It was further alleged that he had a prior felony conviction for which he had served a prison term (prison prior). ( 667.5, subd. (b).) On February 26, 2009, defendant waived his right to a preliminary hearing and engaged in a plea agreement. In return for his guilty plea to the petty theft with a prior charge, the prosecution agreed to a stipulated low-term sentence of 16 months and dismissal of the prison prior enhancement allegation. At the hearing, defendant informed the court he understood the change of plea form when he signed it and he understood his attorneys explanation of the terms of the agreement.

In this matter, Court have reviewed the petition, the response filed by real parties in interest, and petitioners reply. Court have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

On May 16, 2008, the Kern County District Attorney filed a consolidated information in superior court charging appellant James Hershell Scates in count 1 with receiving stolen property (Pen. Code, 496, subd. (a)); in counts 2 and 4 with unlawful possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)); in count 3 with transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)); and in count 5 with unlawful possession of ammunition by an ex-felon (Pen. Code, 12316, subd. (b)(1)). Each count alleged appellant committed the offense while on release from custody (Pen. Code, 12022.1) and further alleged three prior prison terms (Pen. Code, 667.5, subd. (b)).