CA Unpub Decisions

Louis Thomas, Jr., appeals his judgment of conviction of two counts of second degree robbery, entered upon a plea of no contest. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Appellant was notified of his counsels brief and was given leave to file his own brief or letter stating any grounds or argument he might wish to have considered. Appellant was thereafter given an extension of time, but has submitted no brief or letter. Court have reviewed the entire record and find no arguable issues. Further, appellant has appealed from a judgment entered upon a plea agreement, and has not obtained a certificate of probable cause from the trial court.Court have determined that the ground appellant wished to challenge does not justify granting a certificate of probable cause and provides no exception to its requirement. Court thus dismiss the appeal.

A jury convicted Robert Wayne Madrid (appellant) of felony battery, which is defined as a battery in which serious bodily injury is inflicted on the person (Pen. Code, 243, subd. (d).) Appellant admitted that he had suffered a prior conviction for throwing an acid or flammable substance with the intent to disfigure or burn ( 244), which qualified as a strike under the Three Strikes Law ( 1170.12, subds. (a)-(d); 667, subds. (b)-(i)), and as a prior serious felony conviction under section 667, subdivision (a)(1). The trial court granted appellants Romeromotion to dismiss his prior strike conviction and sentenced appellant to seven years in state prison calculated as follows: the low-term of two years for the felony battery and an additional five-year sentence enhancement under section 667, subdivision (a)(1).
On appeal, appellant contends the trial court committed reversible error by: (1) instructing the jury on a modified version of CALCRIM No. 925, and (2) imposing a five-year sentence enhancement under section 667, subdivision (a)(1).Court affirm.

Victor H. appeals from an order of wardship (Welf. & Inst. Code, 602) following a finding that he unlawfully possessed a firearm (Pen. Code, 12101, subd. (a)(1)) and live ammunition. (Pen. Code, 12101, subd. (b)(1).) He was ordered to serve one month in juvenile hall before being placed home on probation.

Roger Silva (appellant) appeals from the judgment entered following his plea of no contest to two counts of lewd or lascivious conduct upon a child who is under the age of 14. (Pen. Code, 288, subd. (a).) The trial court sentenced appellant to six years in state prison. Court appointed counsel to represent him on this appeal.
The following facts were adduced at the preliminary hearing: Appellant is Valerie D. (Valerie) and Danielle D.s (Danielle) uncle. In 1999, when Valerie was 13 years old, appellant fondled Valeries breasts on one occasion and forced her to touch his genitals on three other occasions. When Valerie was 14 years old, appellant fondled her breasts and vagina, and then ejaculated on her body. Valerie reported appellants actions to the authorities in 2007.

Appellant T.B. (mother) appeals from the following: (1) The juvenile courts February 10, 2009, order denying the Welfare and Institutions Code section 388[1]petition filed by M.S.s (the minor) siblings; (2) the juvenile courts March 26, 2009, order denying mothers section 388 petition; and (3) the juvenile courts May 29, 2009, order terminating mothers parental rights. Regarding the two section 388 petitions, mother contends that the juvenile court erred in denying both petitions without a hearing. Regarding termination of her parental rights, she contends that the juvenile court erred when it found that two of the exceptions in section 366.26, subdivisions (c)(1)(B)(i) [the parental role exception] and (c)(1)(B)(v) [the sibling exception], did not apply. Because we find no error, Court affirm.

A.M., the father of minor J.M., appeals from the order terminating his parental rights at a Welfare and Institutions Code section 366.26 hearing. Father contends the court erred when it restricted his examination of G.G. (his mother and the prospective adoptive parent) regarding the most appropriate permanent plan for J.M. Court affirm.

In January 2009 this court granted Paul E. Gauls petition for writ of habeas corpus and directed the Board of Parole Hearings (Board) to find Gaul suitable for parole unless, within 30 days of the finality of this decision, the Board holds a hearing and determines that new evidence of Gauls conduct in prison subsequent to his 2007 parole hearing supports a determination he currently poses an unreasonable risk of danger to society if released on parole. (In re Gaul (2009) 170 Cal.App.4th 20, 40 (Gaul I).) In March 2009, following a further parole consideration hearing, the Board found Gaul suitable for parole. However, on July 21, 2009 Governor Arnold Schwarzenegger reversed the Boards decision, in part because of statements in the Boards suitability decision suggesting to the Governor that Gaul lacked insight into the circumstances of the commitment offense and had unresolved anger management problems, evidence that, together with the gravity of the crime, indicated that Gaul still poses a risk of recidivism and violence and that his release from prison at this time would pose an unreasonable risk to public safety.
On September 11, 2009 Gaul filed a new petition for writ of habeas corpus in this court, challenging the Governors reversal decision on the grounds it violated Gauls federal and state constitutional right to due process because it was not supported by some evidence that he is a present danger to society and, in contravention of this courts order in Gaul I, supra, 170 Cal.App.4th at page 41, considered statements that had been made and matters that had occurred prior to 2007. Utilizing the standard articulated by the Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), as applied in Gaul I, we agree the Governors reversal decision is not supported by any evidence that Gaul currently poses an unreasonable risk of danger to society if released from prison. Accordingly, we grant the petition for writ of habeas corpus, vacate the Governors decision and reinstate the Boards parole release order.

Defendant James Lee Brown III appeals from his conviction for selling methamphetamine. (Health & Saf. Code, 11379, subd. (a).) On appeal, he contends the trial court engaged in judicial misconduct by coercing the jury, the prosecutor engaged in prejudicial misconduct in closing argument, the court abused its discretion in sentencing defendant to a midterm sentence, the court made its sentencing choice to punish defendants decision to go to trial, and the abstract of judgment must be corrected to delineate the specific fines and fees imposed. As to this last point, we agree. Court otherwise affirm the judgment.

A jury found defendant John Arthur Ruggles guilty of inflicting corporal injury on his wife Martha[1] (Pen. Code, 273.5, subd. (a))[2] and found true special allegations he personally inflicted great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)) and personally inflicted great bodily injury in the commission of a felony causing the victim to become comatose due to brain injury ( 12022.7, subd. (b)). In a bifurcated proceeding, the trial court found true allegations defendant had one prior strike conviction ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and a prior serious felony conviction ( 667, subd. (a)(1)). Sentenced to 18 years in state prison, defendant appeals, contending the trial court abused its discretion in admitting evidence of two prior incidents of domestic violence to impeach Marthas testimony that defendant never hit or kicked her in the past. Court shall conclude the trial court did not abuse its discretion in admitting the challenged evidence, and even if it did, any error was harmless. Accordingly, Court shall affirm the judgment.

Plaintiff Rene Sheaffer appeals from the judgment entered after the motion for summary judgment by defendants Scott Valley Union School District and James Morris was granted. Plaintiff contends the trial court erred in denying her request for a continuance under Code of Civil Procedure section 437c, subdivision (h) to permit additional discovery.[1] She further contends the trial court erred in granting summary judgment and in denying her motion to continue trial. Court reverse. While we find plaintiff was inexcusably dilatory in discovery and her counsels declaration in support of her request under section 437c, subdivision (h) was inadequate, we nonetheless find the trial court abused its discretion in denying a continuance of both the motion for summary judgment and the trial. The trial court did not address the fact that plaintiff had not received documents ordered released by the juvenile court and erred in resolving an evidentiary ambiguity in favor of the moving parties. Because the courts rulings on both matters were made based on an error of law, we find an abuse of discretion.

Defendant Turrone Derell George pleaded no contest to unlawful possession of a concealed firearm. (Pen. Code, 12025, subd. (b)(6).) As part of his plea, it was agreed he would be placed on probation for up to five years and the charge would become a misdemeanor after a year.

On January 8, 2009, the trial court placed defendant on probation for three years, imposing various terms and conditions. On April 7, 2009, the trial court added a probation condition that defendant not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where any person has such a weapons [sic] nor remain in the presence of any armed person.

A search of defendants vehicle and residence revealed a large amount of cocaine base, a tablet of Ecstasy, ammunition, and two handguns. Convicted by jury of possession for sale and transportation of cocaine base, possession and transportation of Ecstasy, and possession of ammunition and a firearm by a felon, defendant appeals. He contends that (1) the evidence was insufficient to sustain the Ecstasy convictions, (2) the conviction for possession of ammunition by a felon must be reversed because the trial court failed to give the jury a unanimity instruction, and (3) the sentence for one of the cocaine base convictions should have been stayed. (Defendant makes other contentions, but, as will be seen, they need not be discussed separately.) Defendant is correct that the evidence was insufficient to sustain the Ecstasy convictions and that the sentence for one of the cocaine base convictions must be stayed; however, the unanimity instruction argument is without merit because any error in that regard was harmless. Court therefore modify the judgment by vacating the Ecstasy convictions and staying the conviction for transportation of cocaine base, and we affirm the judgment as modified.

Appellant S.G, mother of minor S.B., appeals from an order of the juvenile court terminating her parental rights. (Welf. & Inst. Code, 366.26, 395; further undesignated references are to this code.) It appears, from the two-page opening brief on appeal, that appellant makes the following contentions: (1) the dispositional order was not supported by the evidence; (2) the juvenile court erred in finding there was insufficient evidence of a compelling reason for determining termination of parental rights would be detrimental to the minor due to the beneficial parental relationship between appellant and the minor pursuant to section 366.26, subdivision (c)(1)(B)(i); and (3) the termination of appellants parental rights was the result of ineffective counsel. Court affirm the juvenile courts orders.

Defendant Steven Lawrence Garduno was convicted after a jury trial of assault with a firearm (Pen. Code, 245, subd. (a)(2)), committing the crime while personally armed with a firearm (Pen. Code, 12022.5, subds. (a) & (d)), and being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)). (Unspecified section references that follow are to the Penal Code.) He was sentenced to 16 years, plus 25 years to life, in state prison. On appeal, defendant contends the trial court erred by admitting the prior testimony of the complaining witness. Finding defendants claim to be without merit, Court affirm the judgment.