CA Unpub Decisions

M.O., the daughter of T.C. (mother), was placed with a foster family when she was diagnosed with a life-threatening medical condition that neither mother nor father, T.O., Sr., could deal with at the time. The first time we considered this case, we concluded that the Stanislaus County Community Services Agency (the agency) had not provided mother with reasonable reunification services and reversed the order terminating reunification services issued after the first 12 month review hearing. This appeal is from the order issued after the second 12-month review was held pursuant to Welfare and Institutions Code section 366.21, subdivision (f).[2] As we shall explain, we conclude the juvenile court erred (1) in denying mothers request for a contested hearing, (2) in concluding compliance was required with the Interstate Compact on the Placement of Children (ICPC), and (3) in considering M.O.s bond with her foster parents before reunification services properly were terminated. Thus, Court will reverse the order issued after the 12 month review and remand for another 12 month review, including a contested hearing if mother requests one.

Defendant Novell, Inc. purchased assets of defendant and cross-complainant TriPole Corporation from TriPole, plaintiff Amer Jneid, and others not parties to this appeal. Part of the purchase price included contingent payments, and concurrently executed employment contracts with Jneid and plaintiffs Ali Beydoun and Craig Sheldon provided bonuses for them. All such bonuses and contingent payments were due only if certain revenue milestones were met. Claiming the minimum threshold was not met, Novell did not make any contingent payments to TriPole or bonus payments to plaintiffs. As a result, complaints and cross-complaints were filed. After a six-month jury trial millions of dollars in various amounts were awarded to plaintiffs and TriPole against Novell. Novell appeals the judgment on a variety of grounds, including that the court erred in ordering issue and evidentiary sanctions for its failure to produce computer embedded information in a timely manner. TriPole cross appeals, claiming the court should have awarded prejudgment interest on a portion of the judgment.

Robert Garcia appeals from the judgment entered after a jury convicted him of continuous sexual abuse of a child and three counts of solicitation of murder (to murder the abuse victim, her sister, and mother). On appeal, Garcia contends the trial court violated his constitutional rights by excluding the testimony of a witness who demonstrated during an Evidence Code section 402[1]hearing a willingness to answer questions raised by the defense but not the prosecution. He also claims the court should have granted his motion to suppress statements he made to an officer during a custodial interrogation because he had not yet been advised of his Miranda[2]rights. Garcia maintains two of the three solicitation convictions should be stricken because the jury returned a special verdict finding the three counts were but one single crime. Garcia also raises two challenges to his sentence: (1) the court and prosecution were estopped from sentencing him under a statutory provision not mentioned during plea negotiations; and (2) the courts imposition of the upper term for his convictions violated Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We conclude his contentions lack merit, except for his argument the two solicitation convictions should be stricken. As so modified, Court affirm the judgment.

Defendant was charged by information with felony murder during the commission of the offenses of arson and burglary (Pen. Code, 187, subd. (a), 190.2, subd. (a)(17); count 1),[1] four counts of premeditated, attempted murder ( 664, 187, subd. (a); counts 2-5), arson of an inhabited structure ( 451, subd. (b); count 6), first degree burglary while a person other than an accomplice was present ( 459, 667.5, subd. (c)(21); count 7), and three counts of child endangerment ( 273a, subd. (a); counts 8-11). The information further alleged that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the offenses in counts 1 and 2 ( 12022, subd. (b)(1)), and that he personally inflicted great bodily injury on the victim of the offense in count 2 ( 12022.7). On February 14, 2007, a jury found defendant guilty of the three counts of child endangerment (counts 8-10, 273a, subd. (a)), and a mistrial was declared as to the other counts. An amended information was filed adding a charge of solicitation to commit perjury ( 653f, subd. (a)) as count 11. On June 23, 2008, a second jury found defendant guilty of first degree murder ( 187, subd. (a)), four counts of premeditated, attempted murder ( 664, 187, subd. (a)), arson of an inhabited structure ( 451, subd. (b)), first degree burglary ( 459), and solicitation of perjury ( 653f, subd. (a)). The second jury also found true allegations that the murder was committed during the crimes of arson and burglary ( 190.2, subd. (a)(17)), and that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the murder ( 12022, subd. (b)(1)); that defendant personally used a deadly and dangerous weapon, a knife, and personally inflicted great bodily injury upon the victim during the commission of one of the attempted murders (count 2; 12022, subd. (b)(1), 12022.7); and that a person other than an accomplice was present in the residence during the burglary ( 667.5, subd. (c)). The trial court sentenced defendant on all of the charges to the indeterminate term of life without parole, consecutive to two indeterminate terms of life with the possibility of parole, consecutive to the determinate term of eight years.

Defendant, Leonardo Ramirez, pleaded no contest to felony evasion of a police officer (Veh. Code, 2800.2, subd. (a)). He claims that (1) a probation condition, as pronounced orally, is unconstitutionally vague and overbroad and (2) a minute order does not properly reflect the trial courts orally announced disposition in a minor respect. Court will modify the probation condition and minute order to cure any infirmity or incongruity. With these modifications, Court affirm the judgment.

Appellant Michael Valderrama was employed as an airport operations worker by the Roads and Airports Department of the County of Santa Clara (County) for more than four years. His employment was terminated for cause in January 2006 and a hearing officer upheld the termination after a Skelly hearing.[1] Valderrama sought review of the hearing officers decision by the Santa Clara County Personnel Board (Board). Four members of the five-member Board held an evidentiary hearing in July and August of 2006 and reached a tie vote, with two members voting to sustain Valderramas termination and two members voting to overturn it due to the lack of progressive discipline.

A jury convicted the defendant herein, Anastacio Gonzales, of five counts of aggravated sexual assault on a child under age 14. He claims that the trial court abused its discretion in admitting evidence of a prior uncharged sexual assault on another victim, in admitting expert testimony about physical evidence of abuse, and in admitting evidence regarding child sexual abuse accommodation syndrome. He also claims that he was given ineffective assistance of counsel. Court find none of his claims to have merit and will affirm the judgment.

Defendant was charged by first amended information with committing lewd acts on a child under 14 (Pen. Code, 288, subd. (a);[1] count 1), and misdemeanor annoying or molesting a child ( 647.6, subd. (a)(1); count 2). The alleged victim of the charges was L., a then 13-year-old child with developmental disabilities. Defendant was seen at the Milpitas Counseling Center for a comprehensive psychodiagnostic assessment at his counsels request four times between November 16, 2007, and January 2, 2008. Although defendant was diagnosed with an anxiety disorder, no major psychopathological condition was diagnosed. On July 28, 2008, defendant filed a motion to compel L. to undergo a psychiatric examination to determine her competency to testify. The prosecutor filed opposition to the motion. On August 8, 2008, the court denied the motion without prejudice.

Defendant Russell Elijah Edwards was convicted by a jury of corporal injury and battery to a spouse with findings that he used a deadly weapon and caused great bodily injury based on one incident in which he punched his wife and a second in which he punched and hit her with a baseball bat. The court sentenced defendant to the upper terms for both corporal injury to a spouse and for the great bodily injury enhancement, totaling nine years, plus an additional one year for the use of a deadly weapon (while staying imposition of other portions of the sentence). Defendant appeals, arguing that imposition of the upper terms violated his right to a jury trial, was a prohibited ex post facto application of amendments to the sentencing provisions of the Penal Code, and that the court improperly used the same facts to impose the upper terms for the substantive count and for the enhancement. Defendant concedes that the constitutional arguments have been addressed and rejected by the California Supreme Court, but sets them forth to preserve the issues for federal review. We reject additional contentions concerning the dual use of sentencing factors except with respect to the imposition of the one year enhancement for use of a deadly weapon. Court therefore shall strike the one year enhancement and otherwise affirm the judgment.

A jury found defendant guilty of the attempted commission of a lewd and lascivious act on a minor, and the trial court placed him on formal probation. Defendant challenges certain of the probation conditions imposed on him on constitutional grounds. Court agree in part with defendants contentions, and will modify the conditions and affirm the judgment as so modified.

Defendants motion to suppress evidence was denied and he was convicted following a jury trial of possession of cocaine base for sale (Health & Saf. Code, 11351.5). In this appeal, defendant renews his objection to the seizure of cocaine, claims that the prosecutor improperly excused a potential juror for reasons related to race, objects to the flight instruction given by the trial court, and asserts that the prosecutor committed misconduct. We find that the cocaine was not seized as the result of an unlawful detention of defendant. We also conclude that the challenged juror was challenged for race-neutral reasons, the flight instruction was warranted, and no prosecutorial misconduct was committed. Court therefore affirm the judgment.

C.A., the mother of minor N.A. (Mother), appeals from an order terminating her parental rights. Mother contends there was insufficient evidence the minor would be adopted. Court disagree, and affirm the order terminating parental rights.

Augustine Lara appeals from a three-year state prison sentence, subject to local custody credits, and the related fees and fines he received after he pleaded no contest to two charges pursuant to a negotiated disposition. Appellants counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally. The judgment is affirmed.

Defendants and appellants, Oswaldo Portillo and Matthew Jacobs, appeal the judgments entered following their convictions, by jury trial, for first degree murder with firearm and gang enhancements (Pen. Code, 187, 12022.53, 186.22).[1] Defendants were sentenced to state prison for terms of 50 years to life. The judgments are affirmed.