CA Unpub Decisions

C.N. (appellant), the mother of G.K., J.K., A.K., R.N., J.N., and A.N. (the minors), appeals from the juvenile courts jurisdictional and dispositional orders. (Welf. & Inst. Code, 360, subd. (d), 395; further section references are to this code.) She does not contest the removal of G.K., J.K., and A.K. from her custody, but claims there was insufficient evidence to support removal of the other minors. We conclude otherwise. Not only was the evidence sufficient, it was overwhelming that appellant and her husband engaged in a pattern of abuse that created a substantial danger to all six of the minors physical and emotional well-being, and showed there were no reasonable means to protect any of the minors other than their removal from appellants custody. Thus, Court shall affirm the juvenile courts orders.

T.P. (petitioner), the mother of M.P. (the minor), seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate orders of the juvenile court terminating reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 (hereafter section 366.26). Petitioner contends, and real party in interest San Joaquin County Human Services Agency (the Agency) concedes, there was inadequate compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901, et seq.) Court accept the concession and shall issue a peremptory writ of mandate directing the juvenile court to vacate the orders and to conduct further proceedings to determine whether ICWA notice is complete.

A jury convicted Tomas Heriberto Palacio of deliberate and premeditated attempted murder (Pen. Code,[1] 187, subd. (a); 664), assault with a deadly weapon ( 245, subd. (a)(1)) and corporal injury to a domestic partner ( 273.5, subd. (a)). As to each count, the jury found that Palacio inflicted great bodily injury ( 1192.7, subd. (c)(8), 12022.7, subd. (e)) and personally used a deadly and dangerous weapon ( 1192.7, subd.(c)(23), 12022, subd.(b)(1)). The court sentenced Palacio to life in prison with the possibility of parole plus six years.
Palacio appeals, contending the court erred by failing to sua sponte instruct the jury as to CALCRIM No. 375, instructing the jury that it must consider evidence of appellant's prior suicide attempt only for the purpose of establishing motive in this case. Furthermore, Palacio contends that counsel was ineffective for failing to request the instruction and therefore was prejudiced by this error. Court find no prejudicial error and affirm the judgment.

A second amended petition filed in juvenile court alleged Earl H. came within the provisions of Welfare and Institutions Code section 602 in that on March 30, 2008, he committed grand theft, a felony (Pen. Code, 487, subd. (c)), and petty theft, a misdemeanor (Pen. Code, 484).[1] A subsequent petition filed in juvenile court alleged Earl came within the provisions of Welfare and Institutions Code section 602 in that on September 26, 2008, he committed grand theft, a felony (Pen. Code, 487, subd. (c)). Both petitions pertain to the theft of cell phones from the hands of their owners.

A jury convicted Norman Paul Blanco of numerous counts in connection with his crimes on September 12 and 13, 2005. The court in the original proceedings sentenced Blanco to 50 years to life, plus a nine-year determinate term. However, on appeal, this court vacated the sentence and remanded for resentencing because we concluded a true finding regarding a prior juvenile adjudication was not supported by substantial evidence. (People v. Blanco (July 22, 2008, D049359) [nonpub. opn.] (Blanco I).) On remand, the court sentenced Blanco to a total term of 20 years 4 months, which included the principal term for assault with a deadly weapon and personal use of a firearm (Pen. Code 245, subd. (a)(2), 12022.5, subd. (a),[1] count 3) and consecutive terms for each of Blanco's convictions for unlawfully taking and driving a vehicle (Veh. Code, 10851, subd. (a), count 9) and for evading an officer with reckless driving (Veh. Code, 2800.2, subd. (a), count 10). In this appeal, Blanco asserts the trial court erred by not staying the sentence on count 9 under section 654. He alternatively asserts that, even if section 654 does not apply, the trial court abused its discretion by imposing sentences for counts 3, 9 and 10 consecutively rather than concurrently.

Petitioner William Martin seeks a writ of habeas corpus requiring the Board of Parole Hearings (BPH) to find him suitable for parole. Although this court issued an order to show cause, subsequent developments have made the petition moot.

Brittney B. appeals the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26. 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 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 her requests to review the record for error and to address her Anders issue. (Anders v. California (1967) 386 U.S. 738.) Brittney's counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied.

Defendant and appellant Jorge H. Alvarez appeals after he was convicted of the attempted premeditated murder of Jose Pedro. Defendant contends that there was insufficient evidence of intent to kill and that the jury instructions on reasonable doubt were improper. Court affirm.

A jury convicted defendant Martin Gonzalez of attempted premeditated murder against his estranged wife and other offenses. The court sentenced defendant to an indeterminate term of life with the possibility of parole. The court also imposed a consecutive eight-month term and a concurrent two year term. On appeal, defendant argues there was not sufficient evidence of attempted premeditated murder and the court erred regarding jury instruction. Court affirm the judgment.

Defendant and appellant Ryan Patrick Wood pled guilty to two counts of inflicting corporal injury on a spouse or cohabitant (count 1 in each case Nos. FMB700562 & FMB700563) (Pen. Code, 273.5, subd. (a)),[1]and also admitted a prior conviction for inflicting corporal injury on a spouse or cohabitant ( 273.5, subd. (a)). Defendant contends that when he was sentenced, following revocation of probation, fines that duplicated those imposed upon his grant of probation were imposed. Court affirm with modifications to the fines and fees imposed.

Defendant and appellant Omero Ochoa Lopez appeals his jury conviction for one count of methamphetamine possession (Health & Saf. Code, 11377, subd. (a)) and one count of resisting arrest (Pen. Code, 148, subd. (a)(1)). On due process grounds, he argues his conviction should be reversed because he was deprived of his right to be mentally present during his trial.

This is an appeal from judgment entered after a plea of no contest. Defendant and appellant Juan Villasana, Jr., contends his suppression motion should have been granted. Finding his contentions contrary to settled law, Court affirm the judgment.

On January 16, 2008, appellant, Candido Espinoza, was charged in a criminal complaint in case No. 197090 with possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a)). On April 3, 2008, an information was filed in case No. 197582 charging appellant with infliction of corporal injury to a spouse, cohabitant, or his childs mother (Pen. Code, 273.5, subd. (a), count one),[1]three counts of assault with a deadly weapon ( 245, subd. (a)(1)), counts two, three & five), making a criminal threat ( 422, count four), being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a), count six), and possession of narcotics paraphernalia (Health & Saf. Code, 11364, subd. (a), count seven). Count one alleged an enhancement that appellant had been convicted of domestic violence in the past seven years ( 273.5, subd. (e)). Count one also alleged an enhancement that appellant personally inflicted great bodily injury ( 12022.7, subd. (e)) and count two also had a great bodily injury allegation ( 12022.7, subd. (a)). Counts one and four alleged appellant personally used a weapon ( 12022, subd. (b)(1)). Counts one through five alleged an on-bail enhancement ( 12022.1).

On November 6, 1998, appellant, Alberto Zepeda Felix, drove a truck from which his brother fired several shots from a handgun at a vehicle with three occupants. On June 8, 1999, Felix pled no contest to discharging a firearm at an occupied vehicle (Pen. Code, 246). On August 2, 1999, the court placed Felix on three years probation on condition that he serve 240 days local time. In November 2008, while serving a federal prison sentence, Felix was told by the Bureau of Prison officials that he could not participate in a residential drug abuse program because he had a prior conviction for assault with a deadly weapon.

On February 9, 2009, Felix filed a petition for a writ of coram nobis in the trial court requesting the court to reverse his assault conviction because when he entered his plea to that offense Felix believed he pled only to aiding and abetting (Pen. Code, 32) the assault and not to assault with a deadly weapon. On March 13, 2009, the trial court denied Felixs petition. Felixs appointed appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a document filed on October 1, 2009, Felix contends the court erred in denying his petition for a writ of coram nobis. Felix is wrong.