CA Unpub Decisions

Y.Y. is the father of many children who have been removed from his custody and that of the childrens mother due to the parents substance abuse problems. The couples two youngest children have been freed for adoption after neither parent could successfully reunify with them within statutory permissible time limits. Father appeals from the order terminating parental rights (Welf. & Inst. Code, 366.26 ) to his two youngest children.[1]

Fathers appointed appellate counsel submitted a letter filed July 28, 2009, advising this court that she would not be filing a brief pursuant to In re Sade C. (1996) 13 Cal.4th 952. We extended time for father to personally file a letter brief which he has since done. In his letter, he describes his current circumstances and his desire to have his children returned to him.
However, he does not argue that the juvenile court committed any error in deciding to terminate his parental rights. Court thus conclude appellants remarks do not amount to claims that the juvenile court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994) and will affirm.

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) from the juvenile courts orders issued at a contested 18-month review hearing (Welf. & Inst. Code, 366.22)[1]terminating her reunification services and setting a section 366.26 hearing as to her daughter D. and son M. We conclude her petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court will dismiss the petition as facially inadequate.

Defendant Otis Dandre Hart and fellow gang members robbed a series of gas stations, liquor stores, and convenience stores over the course of three days. A jury convicted defendant of 10 counts of conspiracy to commit robbery, 17 counts of second degree robbery, 10 counts of street terrorism, and 1 count of assault with a deadly weapon. The jury also found true defendant had committed the conspiracy, robbery, and aggravated assault counts for the benefit of a criminal street gang and that a principal used a firearm in 15 of the offenses, and that he personally used a firearm in 2 of the counts. The court sentenced him to 43 years in prison.
Defendant appeals, asserting prosecutorial misconduct, erroneous denial of his motion for new trial based on that misconduct, and cumulative prejudice. He also contends, and the Attorney General agrees as do we, the court made several sentencing errors. Additional relevant facts will be set forth in the discussion of these issues. The case is remanded for resentencing. In all other respects, the judgment is affirmed.

A jury convicted defendant Freddy Gonzalez Vasquez of attempted murder (Pen. Code, 187, subd. (a), 664, subd. (a); all statutory references are to this code unless noted) and assault with a deadly weapon ( 245, subd. (a)(1)). The jury also found he personally used a deadly weapon ( 12022, subd. (b)(1)). Defendant contends the trial court erred by failing to instruct sua sponte on unanimity (Judicial Council of Cal. Crim. Jury Instns. CALCRIM No. 3500). For the reasons expressed below, Court reverse the judgment.

A jury convicted defendant Jonathan Phong Khanh Tran of first degree felony murder (Pen. Code, 187; all further statutory references are to this code unless otherwise specified; count 1), two counts of rape ( 261, subd. (a)(2); counts 2 and 3), and oral copulation under color of authority ( 288a, subd. (k); count 4). It also found true defendant was armed and personally used a firearm during commission of the rapes ( 12022.3, subds. (a), (b), 667.61, subds. (a), (e)(4)) and had multiple victims ( 667.61, subds. (a), (e)(5)). Defendant was sentenced to 25 years to life for the murder, consecutive 15-years-to-life terms for the rapes, and a consecutive 8 years for the oral copulation.

Defendants Ricky Cavazos and Juan Cavazos appeal a postjudgment order granting a new trial solely on the issue of damages.[1] Before trial, the court granted a motion in limine excluding evidence which established the amount plaintiff Michael Briggs was initially billed for medical expenses incurred as a result of the tort at issue. In granting the motion in limine, the court stated its reading of the cases indicate[s] that . . . only the amount that has been paid should . . . go into evidence[,] not the amount initially billed. (See Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 306 (Nishihama); Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 643 (Hanif).) The court changed direction when presented with a motion for new trial, concluding it did not think it had discretion under the relevant case law to exclude evidence of medical bills from the jurys consideration, even if it had the duty to reduce damages after trial if the damage award for medical expenses exceeded the amount actually paid by plaintiffs insurer and accepted as payment in full by plaintiffs medical care providers.

The juvenile court found true beyond a reasonable doubt the allegations of a petition subsequent (petition) charging Danny N. (the Minor), a ward of the court, with first degree residential burglary under Penal Code sections 459 and 460, subdivision (a). The court ordered the Minor continue as a ward of the court, committed him to juvenile hall for 90 days, and ordered terms and conditions of probation.

The People tried the case on the theory the Minor had aided and abetted the residential burglary. At the close of the Peoples case‑in‑chief, the Minor moved to dismiss under Welfare and Institutions Code section 701.1.[1] The Minor argues that the juvenile court erred by denying the motion because the People failed to prove corpus delicti, and, therefore, his extrajudicial statements were inadmissible as evidence of guilt. Without those statements, the Minor argues, the evidence was insufficient to support the true finding on the petition.
For reasons Court will explain, we conclude the People met their burden of proving corpus delicti. Court therefore affirm the true finding on the allegations of first degree residential burglary in the petition, with the modifications to the terms and conditions of probation requested by the Minor.

The Imagery Group, Inc. (Imagery) appeals from the order awarding it costs and attorney fees following two appeals. It contends the trial court improperly struck as untimely certain attorney fees it claimed postappeal. Court find no error and affirm the order.

Sheri T., mother of Taylor Y., appeals from the order of the juvenile court summarily denying her petition under Welfare and Institutions Code section 388;[1]she claims her petition presented a prima facie case that Taylors best interests would be promoted by further reunification services. The mother also appeals from the judgment terminating her parental rights, claiming the juvenile court should have found adoption to be detrimental due to her beneficial relationship with Taylor. Court find no error and affirm.

The court terminated the reunification services of Eileen V. with respect to her sons, Daniel B. (now four years old) and Christian N. (now two years old), and set a Welfare and Institutions Code section 366.26 hearing as to them, but not as to her daughter, R.B. (now ten years old), who was temporarily released to mothers custody.[1] Mother seeks a writ of mandate directing the juvenile court to order a 60-day trial release of Daniel and Christian (the boys) to her custody or family maintenance services for her and the boys, and six additional months of family reunification services for her with respect to the boys.

Defendant appeals from the sentence imposed following his guilty plea and strike admission. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days and he submitted a letter to his attorney, which the attorney forwarded to this court. The letter alleges ineffective assistance of trial counsel, and coercion in the plea negotiations. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record and defendants letter, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, Court affirm.

This petition for writ of mandate presents the substantive question whether there is substantial evidence to sustain the juvenile courts order that, pursuant to the so-called bypass provision of Welfare and Institutions Code section 361.5,[1] the reunification services of petitioner C. S. were to be ended and the matter set for a hearing under section 366.26 of that code. Substantial evidence supports the courts determination, and therefore, after considering the claim (along with a procedural claim C. S. presents) on the merits pursuant to the requirements of rule 8.452(i)(1) of the California Rules of Court, Court will deny the petition.

Plaintiff Richard K. Hammerbeck brought this defamation and negligence action against a news reporter, television anchor/news director, and television broadcast company (defendants) based on a news story they aired that identified him as one of the people arrested for insurance fraud at auto body shops investigated by the California Department of Insurance and the Butte and Shasta County District Attorneys Offices. He was subsequently acquitted of the charge. The trial court sustained defendants demurrer, without leave to amend, to the plaintiffs second amended complaint and granted defendants special motion to strike the complaint as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure section 425.16 (section 425.16). Judgment was entered in favor of defendants. Plaintiff appeals. Court affirm the judgment.

Defendants Simon Provencio Alfaro and Victor Provencio Alfaro[1] were charged with robbery.[2] Additionally, Victor was charged with the enhancement of personal use of a firearm and Simon was charged with the enhancement of being armed with a firearm during a felony. After a jury trial, defendants were each convicted of robbery and the associated firearm enhancement allegations were found to be true.
Both defendants argue their right to a fair trial was violated when, outside the presence of the jury, the trial court made inappropriate and disparaging references to them. Court affirm the judgment.