CA Unpub Decisions

Appellant Francisco P. (Father) challenges a dependency court finding that he sexually abused his daughter S.P. The courts finding is supported by substantial evidence. Court affirm the judgment establishing dependency court jurisdiction.

Following trial, a jury found defendant and appellant Juan Gutierrez (defendant) guilty of first degree murder and found true the gang enhancement allegation under Penal Code section 186.22.[1] On appeal, defendant challenges the sufficiency of the evidence in support of the true finding on the gang enhancement allegation, arguing that there was no evidence, other than the experts speculation, that defendant killed the victim with the specific intent to promote or further criminal conduct by gang members and that there was no evidence that the killing benefited a gang. We hold that the true finding on the gang enhancement allegation was supported by substantial evidence. Court therefore affirm the judgment of conviction.

Mother K.P. appeals from the dependency court order that terminated her parental rights to daughter A.L. We reject mothers contention that the trial court erred because she maintained a sufficiently beneficial relationship with the daughter, and affirm the order.

Petitioner Alejandro G. (petitioner) and J.O. (mother) are the parents of L.G. (L., born Sept. 2007) and K.O. (K., born Aug. 2008). After the court set a permanency planning hearing for both children, petitioner filed a request for extraordinary relief. Court deny the petition.

A jury convicted defendant David James Bonde of first degree murder, and found that the murder was committed to avoid arrest, in the commission or attempted commission of a robbery, and in the commission or attempted commission of a carjacking. The jury also found true the allegation that defendant personally used a deadly weapon, a knife, in the commission of the offense. The trial court sentenced defendant to life without the possibility of parole plus one year for use of a deadly weapon.

Defendant argues the trial court erred in allowing the prosecution to have him reenact the murder with a rubber knife, that there was insufficient evident to sustain the robbery and carjacking special circumstances, that the trial court improperly imposed a parole revocation fine, and that he was improperly awarded conduct credits. Court shall amend the judgment to correctly reflect custody credits, and to strike the parole revocation fine, but shall otherwise affirm the judgment.

Plaintiff/cross-defendant Sunset Ranchos Investors, LLC (plaintiff) appeals from a judgment in which the trial court rejected plaintiffs claims for trespass and quiet title and instead granted to defendants/cross-complainants Kenneth Mollison and Cathleen Taverna (defendants) a nonexclusive prescriptive easement for landscape and drainage purposes only on a portion of plaintiffs property. Plaintiff contends that such a remedy is improper because, despite the courts characterization, the easement is exclusive and cannot be established by prescription. Court agree and reverse the judgment.

A modification decision.

This is an appeal after a successful will contest. The trial court found that the signature on the will offered for probate was not the decedents. On appeal, the petitioner who offered the will for probate contends that the trial court abused its discretion by (1) setting the action for trial before letters of administration were issued and (2) denying a motion to continue. We conclude that the trial court did not abuse its discretion and therefore affirm.

During a traffic stop on July 15, 2008, Officer Eric Angle searched defendant Roy Swearengin, but did not find any contraband. Defendants passenger, Carolyn Cengiz, was searched by Officer Alisha Slater, who found two baggies of methamphetamine in Cengizs waistband. Cengiz said that defendant gave her the contraband and told her to hide it because he was on parole. Cengizs statement to Officer Slater was corroborated by a recorded conversation between Cengiz and defendant in the back of the patrol car while officers searched defendants residence. When defendant asked her whether the officers found the methamphetamine, Cengiz replied, well of course. Saying, [y]ou said to stash it somewhere, Cengiz told defendant: Well where else am I going to put it? I put it in my pants and she [Officer Slater] fucking, she pulled my pants out and it [the baggies of methamphetamine] fell [out]. The search of defendants residence disclosed paraphernalia for smoking methamphetamine. Despite defendants claim that he did not know there was methamphetamine in his van, and his denial that the paraphernalia at his residence belonged to him, a jury convicted him of possession and transportation of methamphetamine (Health & Saf. Code, 11377, subd. (a), 11379, subd. (a)), and concealing evidence (Pen. Code, 135). Thereafter, defendant admitted he had served a prior prison term. (Pen. Code, 667.5, subd. (b); further section references are to the Penal Code unless otherwise specified.)

T.L., the mother of A.A. (a girl born in October 2006) and C.A. (a boy born in June 2005), appeals from juvenile court findings and orders entered at a combined jurisdictional and dispositional hearing. (Welf. & Inst. Code, 300, subd. (f), 361.5, subd. (b), 395.) Appellant contends the juvenile court failed to ensure compliance with the Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq. (ICWA)). Court vacate the orders and remand for further ICWA proceedings.

In case No. SF103684A, defendant pled guilty to grand theft arising out of her opening unauthorized credit accounts, at Lowes and The Home Depot, in the name of defendants employer and making unauthorized purchases in excess of $15,000. In case No. SF107822A, she pled guilty to welfare fraud and food stamp fraud arising from her receipt of more than $31,000 in aid in the form of cash, food stamps, and childcare services after she falsely claimed that her husband or the father of her children did not live in her home, and she failed to report his income. In case No. TF035129A, she pled guilty to embezzlement arising from opening credit lines in her employers name and purchasing over $9,000 in personal items.
In exchange for the guilty pleas, the court dismissed, with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), additional charges of grand theft, perjury, and failure to appear. Defendant was granted probation for a period of five years, with conditions including that she submit to unlimited warrantless searches. With respect to the welfare and food stamp fraud case, the court ordered her to serve one year in jail and pay $31,819.06 in restitution. Defendant appeals, challenging the unlimited search condition of her probation. Court shall affirm the judgment.

Petitioner and appellant Dale Kaye (Dale), as a successor co-trustee of a trust established by his late parents (the trust), filed this petition under Probate Code[1]section 17200, to seek instructions regarding enforcement of the trust's no contest clause against his sister Karen Murray, who is also a successor co-trustee (Karen). At that time, the parties had entered into a stipulation, approved by the probate court, providing that both Dale and Karen were the successor co-trustees of the Trust. After demurrer proceedings and the amendment of the petition, Karen brought another demurrer that was sustained without leave to amend, for failure to state a cause of action. Dale appeals, contending that the probate court erroneously refused to allow further proceedings to construe the language of the no contest clause, by taking extrinsic evidence about the intent of the trustor. Dale also contends that the probate court misinterpreted his allegations in support of his claim that Karen should be disinherited for certain actions that he believes amounted to contesting the trust.
On de novo review of the ruling on demurrer, we agree with the probate court that the amended petition, as a matter of law, fails to allege facts sufficient to state any cause of action for seeking legitimate instructions under the trust. ( 17200.) The demurrer was properly sustained without leave to amend.

A modification decision.

Defendant Frederick Lee Mitchell appeals from his conviction of two counts of possession of cocaine for sale (Health & Saf. Code,[1] 11351, counts 1 and 3) and one count of sale/transportation of cocaine ( 11352, subd. (a), count 4). Defendant contends the trial court erred in failing to instruct the jury on the lesser included offense of simple possession of cocaine ( 11350) as to count 1. He further contends that although he was convicted of possession for sale and sale of cocaine, the evidence showed he instead possessed cocaine base, and his convictions must therefore be reversed. Court conclude that the trial court erred in failing to instruct the jury on the lesser included offense as to count 1, and we therefore reverse as to that count. Court find no other errors, and in all other respects, Court affirm the judgment.