CA Unpub Decisions

Karen D., the mother of 14-year-old Jo. B. and 13-year-old Ju. B.,[1]appeals from the juvenile courts order, made at the permanency planning hearing (Welf. & Inst. Code, 366.26, subd. (b)),[2]appointing O.C. as the childrens legal guardian. Karen D., whose parental rights were not terminated, does not argue the children should have been returned to her or challenge the juvenile courts finding the children were not adoptable, but contends only that the court abused its discretion when it selected legal guardianship rather than long-term foster care as their permanent plan. Court affirm.

Dominic Jesus Trejo appeals from the judgment entered following his plea of no contest to one count of unlawful sexual intercourse. (Pen. Code, 261.5, subd. (c).)[1] Pursuant to the parties plea agreement, the court suspended imposition of sentence and placed appellant on five years of formal probation, with the condition that he serve 45 days in the county jail. Among other conditions, appellant was prohibited from possessing any dangerous or deadly weapons, and was required to submit to searches of his person or property any time of day or night. On June 20, 2008, appellant was found to be in violation of probation. The trial court ordered that he remain on probation on the same terms and conditions as before. Appellant was sentenced to serve 90 days in jail, and was given credit for having served the 90 days.
On March 30, 2009, while conducting a probation search at appellants residence, police officers found a small, Samurai sword/knife, with a seven and a half inch blade inside a desk in the living room where appellant slept. The knife was similar to a letter opener. Other knives, swords, and crossbows were found in a bedroom shared by appellants brothers. Police officers also found a hunting knife, a pocket knife, a double bladed knife, and a marijuana pipe on a table in the garage where appellants cousin lived. One of appellants brothers and the cousin claimed ownership of the weapons. On April 24, 2009, the trial court determined that appellant was in possession of the knife found in the living room desk, in violation of the terms of his probation. The trial court sentenced him to the low term of 16 months in state prison. Court appointed counsel to represent him on this appeal.

Defendant, Leonardo Duran, purports to appeal from a judgment entered after he pled no contest to two felony charges and admitted he previously had been convicted of a serious and violent felony. Defendant never filed a probable cause certificate issuance request. Nor has defendant filed a motion to amend his notice of appeal. It appears we may not have jurisdiction because defendant failed to secure a probable cause certificate and the notice of appeal did not raise any noncertificate grounds. (See People v. Mendez (1999) 19 Cal.4th 1084, 1096; People v. Lloyd (1998) 17 Cal.4th 658, 664.) We have a duty to raise issues concerning our jurisdiction, Penal Code section 1237.5, and rule 8.304(b) of the California Rules of Court on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) Hence, we issued an order to show cause and set the matter for oral argument. Defendant has failed to fully and timely comply with both Penal Code section 1237.5 and California Rules of Court, rule 8.304(b). (In re Chavez (2003) 30 Cal.4th 643, 651; People v. Mendez, supra, 19 Cal.4th at p. 1099; People v. Way (2003) 113 Cal.App.4th 733, 736.)

During the early morning hours of June 19, 1971, 22-year-old Betty C. was brutally murdered in an isolated area south of Highway 50 in El Dorado County. The matter eventually became a cold case when investigators could find no potential suspects and ran out of leads. In 2002, the investigation was reopened, and DNA from seminal fluids found on the victims clothing was compared to an offender database. The comparison resulted in a match to defendants DNA. Defendant was thereafter prosecuted and convicted of first degree murder. He appeals, claiming a number of evidentiary and instructional errors regarding the use of evidence from two sexual assaults allegedly committed by defendant around the time of the Betty C. murder. Defendant further contends the delay in prosecution amounted to a denial of due process, and various fines were improperly assessed. Court conclude two fines must be stricken, but otherwise find no prejudicial error and affirm the judgment.

In this eminent domain proceeding, defendant Roseville Land Development Association (Roseville Land), appeals from a post-judgment order granting the motion of plaintiff Wild Goose Storage, Inc. (Wild Goose), to amend the final judgment in condemnation, nunc pro tunc, to correct a clerical error in the description of a condemned easement over Roseville Lands property. Roseville Land contends that by amending the judgment nunc pro tunc, the court effectively eliminated its potential trespass claim against Wild Goose. Roseville Land further contends the trial court erred in leaving the payment provision in the amended judgment and in refusing to permit Roseville Land to select an independent surveyor, at Wild Gooses expense, to determine the exact location of the pipeline previously installed on Roseville Lands property. Court find no error and affirm the order.

Defendant Ronald Belke was charged with one count of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a))[1] and two counts of illegal possession of ammunition ( 12316, subd. (b)(1)). The information also alleged defendant had served three prior prison terms. ( 667.5, subd. (b).) After defendants motions to suppress evidence ( 1538.5) and to set aside the information ( 995) were denied, he pled guilty to one count of illegal possession of ammunition and admitted two prior prison terms, with a stipulated total state prison term of four years. The trial court thereafter imposed that sentence (the midterm of two years on count two, plus two years for the prior prison terms). Defendant contends his motions should have been granted because the officers search exceeded the scope of a lawful protective sweep. Court disagree and shall affirm.

A jury found defendant Steven Robert Conatser guilty of transportation of a controlled substance, possession of a controlled substance, being under the influence of a controlled substance, possession of less than an ounce of marijuana, and driving a motor vehicle while under the influence of a drug.
The probation report recommended three years probation. The trial court recognized, however, that defendant was ineligible for probation based on his two prior felony convictions, and the court did not find the unusual case exception to probation ineligibility met. (Pen. Code, 1203, subd. (e)(4).) The court sentenced defendant to the middle term of three years in prison.
On appeal, defendant contends the trial court abused its discretion by imposing a prison term rather than granting him probation. Court conclude the court did not err in denying probation and affirm the judgment.

After commencing trial on charges of possession of cocaine base for sale (Health & Saf. Code, 11351.5) and transportation for sale of cocaine base (Health & Saf. Code, 11352, subd. (a)), defendant Sean Dion Hageman pleaded no contest to the charges, as well as admitting a prior strike conviction (Pen. Code, 667, subds. (b)-(i), 1170.12), four prior prison terms (Pen. Code, 667.5, subd. (b)) and a prior conviction for possession for sale of cocaine base (Health & Saf. Code, 11370.2, subd. (a), 11351.5). In exchange for defendants plea, the trial court agreed to sentence him to 10 years in state prison. Defendant was sentenced accordingly. The charges stemmed from an incident in which defendant was detained, while he was a passenger in a truck, for violating a provision of the Vehicle Code while riding a bicycle a short time earlier. Defendant was arrested for a parole violation, and a baggie containing 4.56 grams of cocaine was located in between his buttocks during a search at the jail.

Appellant, the mother of A.H. and Ale.H. (the minors), appeals from the juvenile courts order terminating parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant claims there was insufficient evidence to support the juvenile courts finding that A.H. is adoptable. Court shall affirm.

This action arises out of an accident in which Edna Aquino, who was crossing a street in downtown San Diego, was hit by a bus driven by Crucero USA, LLC's (Crucero) employee, Bryan Cuevas. Aquino appeals from a jury verdict finding Crucero was not negligent. On appeal Aquino challenges the admissibility of several items of evidence. First, Aquino asserts the court should have excluded the expert opinion of the investigating police officer because the investigating officer was not designated as an expert witness. Aquino also asserts that even if he had been designated as an expert, his opinion was improper because (1) it lacked foundation as it was not based upon his personal observations; (2) he was not competent to render an opinion that Aquino violated the law; (3) he could not testify as to the cause of the accident; and (4) his opinion was based upon inadmissible hearsay statements made by a witness. Aquino also contends the court erred by allowing the investigating officer to testify from the accident report and allowing him to use statements and diagrams from that report. Finally, Aquino asserts the court abused its discretion by allowing remote, irrelevant and prejudicial testimony concerning a 10-year-old traffic accident. Court affirm.

Aguon contends insufficient recent and objective evidence supports the jury's findings. He further contends the trial court erroneously: (1) instructed the jury to determine whether it was necessary to keep him in a secure facility to ensure the health and safety of others, which improperly directed the jury to consider the consequences of its verdict and thereby diminished the prosecutor's burden of proof and denied him due process; (2) instructed regarding his likelihood of reoffense; (3) admitted evidence regarding his prior 1972 uncharged rape; (4) failed to instruct the jury, without request, that it was required to find he had serious difficulty in controlling his sexual behavior. Moreover, (5) the prosecutor's "use of the term 'sexually violent predator' was governmental misconduct;" (6) the evaluations supporting the petition to recommit him are invalid because the statutorily required protocol was an "underground regulation," which was promulgated in violation of the Administrative Procedure Act (APA); therefore, the trial court lacked jurisdiction to proceed with the SVP petition; (7) the SVPA violates the due process, equal protection, ex post facto and double jeopardy clauses of the federal or state Constitutions.

Two brothers, S.B. and Ka.B., appeal from the juvenile courts dispositional order granting reunification services for their mother R.C. (Mother). The court found Mother had negligently caused the death of the childrens special needs brother, Ke.B. (Welf. & Inst. Code, 361.5, subd. (b)(4)),[1]in part by failing to maintain adequate medical care for the child, but further found that offering her reunification services would serve the best interests of her other children, S.B. and Ka.B. ( 361.5, subd. (c)). S.B. and Ka.B. claim that insufficient evidence supports the courts best interests finding. Court disagree, and affirm the dispositional order.

In this matter, we have reviewed the petition and the opposition filed by real party in interest. We 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.)

Appellant, Tony Huy Havens, pled no contest to three counts each of grand theft (counts 1, 5, & 11/Pen. Code, 487, subd. (a)),[1]obtaining property by false pretenses (counts 2, 6, & 12/ 532, subd. (a)), and eight counts of forgery (3-4, 7-10, & 13-14 470, subd. (d).) Havens also admitted allegations that his fraudulent conduct resulted in the taking of more than $100,000 ( 186.11, subd. (a)(1)).
On February 2, 2009, the trial court sentenced Havens to an aggregate term of five years four months. On appeal, Havens contends: 1) his sentence violates section 654s prohibition against multiple punishment; and 2) he was denied the effective assistance of counsel. We will find merit to Havenss first contention. In all other respects, Court affirm.