CA Unpub Decisions

In this matter, we have reviewed the petition, the oppositions filed by real party in interest, and the replies filed by petitioner. 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 Martin Daree Miller was convicted after jury trial of the premeditated murder of Jesse Rios (count 1, Pen. Code,[1] 187, subd. (a)), and of the attempted murder of Dario Davalos (count 2, 664, 187, subd. (a)). The jury also found as to count 1 that Miller personally and intentionally discharged a firearm in the commission of the offense causing great bodily injury to Rios. ( 12022.53, subd. (d).) With respect to count 2, the jury found that Miller had personally and intentionally discharged a handgun in the commission of the offense ( 12022.53, subd. (c)), and that he had personally and intentionally discharged a firearm causing great bodily injury to Davalos. ( 12022.53, subd. (d).)
Miller was sentenced on the murder count to 25 years to life, plus an additional consecutive 25 years to life for the section 12022.53, subdivision (d), enhancement. On the attempted murder count, the court imposed the middle term of seven years, plus a third 25-years-to-life term for the section 12022.53, subdivision (d), enhancement. The court stayed the remaining firearm enhancements. The total term is 82 years to life. Miller was 24 years of age at the time of trial.

A jury convicted appellant, Elias Castaneda, of four counts each of assault with a firearm (counts 2, 4, 6, and 8/Pen. Code, 245, subd. (a)(2)) and second degree robbery (counts 1, 3, 5, and 7/Pen. Code, 212.5, subd. (c)) and found true a personal arming enhancement in each count (Pen. Code, 12022.53, subd. (b)). On September 19, 2008, the court sentenced Castaneda to an aggregate 28-year term. On appeal, Castaneda contends: 1) the evidence is insufficient to sustain his assault convictions and 2) the court erred in sentencing him. Court will find merit to this latter contention. In all other respects, we will affirm.

On May 8, 2008, appellant was charged in a second amended felony complaint with over 190 felony counts of elder theft (Pen. Code, 368, subd. (d)),[1]identity theft ( 530.5, subd. (a)), attempted identity theft ( 664, 530.5, subd. (a)), second degree burglary ( 459, 460, subd. (b)), receiving stolen property ( 496, subd. (a)), and attempting to dissuade a witness ( 136.1, subd. (a)(2)). Over 140 counts alleged a gang enhancement ( 186.22, subd. (b)(1)). Appellant entered into a plea agreement with a sentencing lid of 16 years. On appeal, appellant contends the trial court abused its sentencing discretion in fashioning a sentence that was, in essence, the lid. Court disagree and will affirm the trial courts judgment.

On April 2, 2009, appellant, Rudy Adam Delgado, was charged in a felony complaint with second degree burglary (Pen. Code, 460, subd. (b), counts 1, 3, 4 & 7),[1]attempted first degree burglary ( 664/460, subd. (a), count 2), grand theft ( 487, subd. (a), count 5), vehicle theft (Veh. Code, 10851, subd. (a), count 6), petty theft ( 488, counts 8 & 10), and three counts of vehicle tampering (Veh. Code, 10852, counts 9, 11, & 12).
On May 19, 2009, appellant entered into a plea agreement in which he would plead no contest to one count of second degree burglary (count 1) and vehicle theft (count 6). In exchange for his plea, appellant there would be a lid of two years on his sentence, he would enter into a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, and the remaining allegations would be dismissed. Appellant executed an ADVISEMENT OF RIGHTS, WAIVER, AND PLEA FORM FOR FELONIES (plea form) acknowledging the terms of the plea agreement and his constitutional rights pursuant to Boykin/Tahl.[2] Appellant acknowledged the consequences of his plea and waived his constitutional rights in the plea form.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts orders issued at a contested dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26[1]hearing as to her twin daughter and son, S.J. and G.J. respectively. Court deny the petition.

Michael David Carter III appeals from the judgment entered following his conviction, by a jury, of kidnapping to commit a sex offense (Pen Code, 209, subd. (b)(1); count 1)[1]; three counts of forcible rape ( 261, subd. (a)(2); counts 2, 3, & 8); sodomy by force ( 286, subd. (c)(2); count 4); forcible oral copulation ( 288a, subd. (c)(2); count 5); and sexual penetration by a foreign object ( 289, subd. (a)(1); count 6). The jury deadlocked on count 7.
With respect to counts 2 through 6 and 8, the jury also found true several enhancement allegations under section 667.61, also known as the One Strike law: the jury determined that Carter had (1) moved the victims, which increased her risk of harm during the commission of the crimes ( 667.61, subds. (d)(2)); (2) kidnapped the victims during the commission of the crimes ( 667.61, subd. (e)(1)); and (3) used a knife during the commission of the crimes ( 667.61, subd. (e)(4)). The court sentenced Carter to life with the possibility of parole for count 1, plus six indeterminate terms of 25 years to life for counts 2, 3, 4, 5, 6, and 8.
On appeal, Carter claims the judgment should be reversed because (1) the prosecutor committed misconduct, (2) his attorney performed inadequately, (3) the trial court gave erroneous jury instructions, and (4) the court violated the ex post facto provision of our state and federal Constitutions by sentencing him under a version of section 667.61 that was not in effect at the time he committed the crimes. We agree with Carters final argument and remand to the trial court to conduct another sentencing hearing using the correct test. However, judgment is affirmed in all other respects.

Jeremy Johnathan Carden appeals from a judgment after a jury convicted him of three counts of willful, deliberate, and premeditated attempted murder, three counts of assault with a deadly weapon, and street terrorism, and found true numerous enhancements, including that he committed attempted murder and assault with a deadly weapon for the benefit of a criminal street gang. Carden argues: (1) insufficient evidence supports his convictions for willful, deliberate, and premeditated attempted murder and street terrorism and the jurys finding on the street terrorism enhancements; (2) the trial court erroneously denied his motions for continuances and mistrial; (3) the prosecutor committed misconduct; (4) the court erroneously instructed the jury; and
(5) there was cumulative error. None of his contentions have merit, and Court affirm the judgment.

Defendant Cade Lewis Velarde was convicted of multiple counts of kidnapping, false imprisonment, criminal threats, stalking, and related charges against four victims, relating to incidents in 2000 and 2001. Defendant challenges the admission of uncharged misconduct evidence and claims the trial court committed instructional and sentencing error. We find defendants arguments to be without merit and affirm.

A jury found defendant Jaime Alfonso Matos guilty of murder and attempted murder, and found true several firearm and gang allegation enhancements. We conclude that although the trial court erred by failing to instruct the jury to consider defendants oral admissions with caution, the error was harmless. Court therefore affirm.

Defendant Joshua Alan Eddlemon was charged with residential burglary (Pen. Code, 459)[1]and receiving stolen property ( 496). The information further alleged the crime was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) and that defendant had previously been convicted of six serious and violent felonies ( 667, subds. (d), (e)(2)(A); 1170.12, subds. (b), (c)(2)(A)). After a jury trial, defendant was convicted on both counts. In a bifurcated trial, the jury found the gang enhancement to be not true. Defendant waived trial on the prior convictions, which were found true by the court. Defendant was sentenced to eight years in state prison, based on the middle term of four years, doubled due to the prior strike conviction. The court dismissed the count of receiving stolen property because it arose from the burglary and five of the six felony priors. He was also ordered to pay restitution to the victims.

Plaintiff Margaret McKinley and her family were dining at the Chart House restaurant in Newport Beach when a waiter on an upper level dropped several plates, hitting her on the head. A jury awarded her $165,000 in damages. Defendant CHLN, Inc., appealed. In its opening brief, appellant argued the trial court wrongly gave the jury a res ipsa loquitur instruction and improperly failed to reduce the amount of medical expenses damages by $30,000 pursuant to a pretrial stipulation. The appeal is still in the briefing phase.

The parties have now settled the matter and have filed a joint application and stipulation for reversal of the judgment pursuant to Code of Civil Procedure section 128, subdivision (a)(8) and in compliance with this courts published internal operating practices and procedures. A reviewing court may reverse or vacate a judgment upon the stipulation of the parties if it finds [t]here is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal, and [t]he reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement. (Code Civ. Proc., 128(a)(8)(A) & (B).)

Two-month-old I.G. died from nonaccidental injuries inflicted while in the care of her mother, Claudia G., and her father, Ivan G. The juvenile court took dependency jurisdiction over the babys sibling, Diego G., and her half-sibling, Megan P.; removed them both from parental custody; and denied reunification services to Claudia. In Diegos case, the juvenile court also denied reunification services to Ivan G. and referred the case directly to a permanent plan selection hearing under Welfare & Institutions Code section 366.26.[1] Claudia filed a petition challenging that referral order under California Rules of Court, rule 8.452, and this court issued an opinion denying the petition in July 2009. (Claudia G. v. Superior Court (July 28, 2009, G041825) [nonpub. opn.]). The juvenile court did not refer Megans case to a permanent plan selection hearing because it granted reunification services to her father, Eddie P. Consequently, Claudia appeals from the courts jurisdictional and dispositional orders affecting Megan. She claims there is insufficient evidence to support the findings that (1) she caused I.G.s injuries, (2) Megan is at a substantial risk of harm if she remains in Claudias custody, and (3) it would not benefit Megan to pursue reunification. We find the record supports the juvenile courts judgment and affirm.

C. J. (mother) appeals from the courts order granting the application of Orange County Social Services Agency (SSA) to use media to find an adoptive home for Jordan J. (now 11 years old). In addition, mother contends, and SSA agrees, that SSA failed to provide proper notice under the Indian Child Welfare Act (25 U.S.C. 1900 et seq., (ICWA)). We affirm the courts order permitting SSA to use media to locate an adoptive family for Jordan. We must, however, remand the case to the juvenile court for compliance with the ICWA.