CA Unpub Decisions

Following a contested jurisdictional hearing, the juvenile court sustained a petition alleging that the minor, Juan G., unlawfully carried a concealed dirk or dagger, a felony. (Pen. Code, 12020, subd. (a)(4).) The minor argues that the evidence was insufficient to show that the knife was concealed upon his person, and that the juvenile court failed to perform its statutory duty to determine whether the carrying of a concealed dirk or dagger was a misdemeanor or a felony, in violation of Welfare and Institutions Code section 702. Court disagree and affirm.

Defendants John Hartley, Edward Hartley and the law firm of Dillingham & Murphy, LLP appeal from an order awarding plaintiff Tangie Terrell attorney fees following the denial of defendants special motion to strike a malicious prosecution action filed by Terrell. In a prior appeal, we reversed the order denying defendants special motion to strike and remanded with directions that the court enter an order granting the motion to strike and dismissing the action. (Terrell v. Dillingham & Murphy, LLP (Nov. 3, 2009, A124094) [nonpub. opn.].) Because our prior opinion was issued after Terrell had filed her respondents brief in the present appeal, we provided her with an opportunity to submit a supplemental brief addressing whether our prior decision necessarily requires reversal of the attorney fee order at issue in this appeal. Terrell has not filed a supplemental brief. Under Code of Civil Procedure section 425.16, subdivision (c), If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorneys fees to a plaintiff prevailing on the motion . . . . Clearly, as Terrell is no longer the prevailing party, she is no longer entitled to fees under this section. Accordingly, the fee order must be reversed.

By an information filed April 30, 2009,[1] appellant was charged with seven felony counts, including robbery, residential burglary, elder abuse, vandalism, resisting arrest, etc., all based on events occurring at a residence in Clearlake on February 17. On the day scheduled for his jury trial, June 23, appellant and the prosecution entered into a plea bargain by which he pled guilty to one count of elder abuse and another of making a terrorist threat (Pen. Code, 368, subd. (b)(1) and 422) and was subsequently sentenced to an aggregate term of six years. Now, pursuant to People v. Wende (1979) 25 Cal.3d 436, he appeals and asks this court to examine the record and determine if there are any issues deserving of further briefing. Court have done so, find none, and hence affirm the judgment and the sentence imposed.

A modification decision.

Max Steven Fuentes and Geovanny Benavente appeal from the judgment entered after they were convicted of second degree murder and other related counts stemming from a gang-motivated shooting. We reject Fuentess claims that his statement to the police should not have been allowed into evidence because he was not properly advised of his right to remain silent, and that the jury should have been instructed on involuntary manslaughter. We reject Fuentes and Benaventes joint claims that: the trial court erred by allowing in evidence the hearsay statement of an accomplice who was not available at trial; the prosecutor committed misconduct by commenting on Benaventes failure to testify; and there was insufficient evidence to support the verdicts.

A jury found Rory Bernard Percy (appellant) guilty of carrying a loaded, unregistered firearm (Pen. Code, 12031, subd. (a)(1))[1] (count 1); having a concealed firearm on his person ( 12025, subd. (a)(2)) (count 2); and unlawful firearm activity ( 12021, subd. (e)) (count 3). As to all counts, the jury found that the crimes were not committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). The trial court sentenced appellant to three years in prison. Appellant appeals on the grounds that: (1) the trial court erred in denying his suppression motion, since his arrest and the seizure of the firearm violated the Fourth Amendment; (2) the trial court violated his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to equal protection by denying his Batson-Wheeler[2] motion; (3) appellants trial counsel was ineffective for not moving to bifurcate the trial on the street gang allegations from the substantive charges; (4) the defenses of necessity and/or duress should have been litigated in light of District of Columbia v. Heller (2008) U.S. [128 S.Ct. 2783] (Heller), which upheld the right to bear arms in certain circumstances; and (5) the trial court erred in imposing concurrent sentences rather than staying counts 1 and 3 pursuant to section 654.

Plaintiff, Julie Alban, appeals from summary judgments in favor of defendants, Seymour, Reva, John and Sarah Alban and Alban Vineyards, Inc. (the winery).[1]This lawsuit concerns ownership of a piece of real property, which indisputably was purchased as a family compound and for the operation of the winery. The property was purchased in October 1989 by Seymour and Reva, plaintiffs parents, for $2 million. Seymour and Reva subsequently transferred ownership of the property (subject to certain life estates by plaintiff and others in two residences) to John and Sarah, plaintiffs brother and sister-in-law. The winery was originally owned by Seymour and Reva but operated by John and Sarah. Seymour and Reva also transferred ownership of the winery stock to John and Sarah. John and Sarah continue to operate the winery. The winery is world renowned and at the time of the summary judgment motions was valued at approximately $25 million.

Defendant, Samuel Heng, appeals from his convictions for: two counts of lewd acts with a child under 14 (Pen. Code,[1] 288, subd. (a)); one count of lewd act with a child of 14 or 15 ( 288, subd. (c)(1)); and one count of sexual penetration with a person under 18. ( 289, subd. (h).) Defendant argues he was denied his rights to due process and a speedy trial. The Attorney General argues that additional court security fees should have been imposed. We impose three additional court security fees and affirm the judgment.

Richard Elijah Brown, Jr., appeals from the judgment entered after he was convicted of possessing marijuana for sale. We hold there was sufficient evidence that appellant knowingly possessed the marijuana. We also reject his other claims of evidentiary and instructional error. Court modify the judgment to correct the amount of restitution fines imposed and affirm the modified judgment.

In May 2009 the juvenile court entered a jurisdictional finding (Welf. & Inst. Code, 300, subd. (e));[1] removed seven-month-old Owen C. from the custody of his father, James C.; and placed Owen with his mother, Megan C. The court found the San Diego County Health and Human Services Agency (the Agency) had satisfied its obligation to "investigate the circumstances leading to [Owen's removal] and advise the court whether . . . reunification [was] likely to be successful" ( 361.5, subd. (c)). The court ordered family maintenance services ( 362, subd. (b), 364, subds. (b), (c)) for Megan and denied reunification services for James ( 361.5, subd. (b)(5), (b)(6)). James and Owen appeal. James contends the jurisdictional finding is not supported by substantial evidence, the Agency failed to meet its investigatory obligation and the court abused its discretion by denying him reunification services. Owen contends reunification services were not at issue because he was not removed from both parents' custody and that it was in Owen's best interests for James to receive family maintenance services. We reverse the order denying James reunification services and remand so that the juvenile court may exercise its discretion to determine whether it is in Owen's best interests for James to receive family maintenance services. In all other respects Court affirm the judgment.

Darrick J. appeals orders from a six-month review hearing continuing his children, Mariah J., D.J. and Sierra J. (together the children), dependents of the juvenile court and denying his request that they be returned to his custody. He contends the court erred by finding he was provided reasonable reunification services and by not returning the children. He requests services be extended beyond the 18-month date. We reject his contentions and affirm the orders.

Crystal H. appeals an order of the juvenile court denying her reunification services and setting a hearing under Welfare and Institutions Code section 366.26. She argues that the court erred by not ordering reunification services for her under section 361.5, subdivision (b)(10) because the evidence showed that she had made reasonable efforts to address the issues surrounding the dependency, and that reunification was in the best interests of Christopher, Luis and Bethany (together the minors.) Court reverse the court's order.

Charles S. suffers from chronic paranoid schizophrenia. He has had many psychiatric hospitalizations and was subject to six conservatorships in the 10 years preceding July 2009. In June 2009 the San Diego County Health and Human Services Agency, through the office of the public conservator, filed a petition to reestablish the conservatorship under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code,
5000 et seq.). A jury found Charles "presently gravely disabled due to a mental disorder." The court entered a judgment reestablishing the conservatorship. Charles appeals.

Teri B. appeals an order for supervised visitation entered at a dispositional hearing held pursuant to Welfare and Institutions Code section 361. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error. In In re Sade C., the California Supreme Court held that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting . . . her custody of a child or . . . her status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny appellant's requests to review the record for error and to address the Anders issue. (Anders v. California (1967) 386 U.S. 738.) Appellant's counsel also requests leave for her client to file a supplemental brief in propria persona. The request is denied.