CA Unpub Decisions

Defendant and appellant Mark John Hendrickson appeals following the revocation of his probation. He contends the trial court erroneously and prejudicially admitted hearsay testimony during his revocation hearing in violation of his constitutional right to confront witnesses.

Although defendant was tried with a codefendant and convicted by a jury of several offenses, the current appeal is directly related only to defendants conviction on count 5, possession of methamphetamine for sale. (Health & Saf. Code, 11378.) This conviction was based on evidence found on defendants person on December 17, 2005. At defendants trial, a deputy testified he was on active patrol on a training assignment and was traveling in a patrol car with a trainee, traveling westbound in an alleyway in Twentynine Palms. The deputy saw defendant riding an off-road motorcycle heading eastbound in the alleyway but then lost sight of the motorcycle. He later saw defendant walking on the street in the vicinity of the alleyway. Defendant began to run as soon as he saw the patrol car. The deputy chased defendant on foot, caught him, and ordered him to lie on the ground. The deputy handcuffed defendant from behind and asked his name. Defendant identified himself as Jumal Andrews.

Father, G.G., appeals from an order terminating his parental rights (Welf. & Inst. Code,[1] 366.26) to his nine-year-old daughter, S.G., who came into the dependency system after she was sexually abused by friends of fathers. The paternal grandfather informed the Children and Family Services (CFS) social worker that he had Indian heritage at an early stage of the proceedings, and CFS sent notices to various tribes. However, the notices gave incorrect and incomplete information about relatives despite the fact the relatives were available to provide the biographical ancestral information about Indian heritage.
Father argues that the information provided in the notices sent to Indian tribes pursuant to the Indian Child Welfare Act (ICWA) was incorrect and incomplete, requiring reversal of the order terminating parental rights. CFS argues that the trial courts finding at an earlier hearing that ICWA did not apply is res judicata. Court reverse and order the court to ensure compliance with ICWAs notice requirements.

Defendant and appellant C.V. (mother) appeals from the juvenile courts orders terminating her parental rights to her two daughters, I.R. (born May 2007) and R.R. (born May 2006) and selecting adoption as their permanent plan. Specifically, mother argues the court erred when it determined that the parental bond exception to the preference for adoption does not apply here. As discussed below, we conclude that substantial evidence supports the juvenile courts determination that this exception does not apply. Court thus affirm the juvenile courts orders.

Appellant J.A. (father) appeals the termination of his parental rights under Welfare and Institutions Code section 366.26[1]as to his minor son, J.C. Father claims his parental rights were terminated in violation of his right to due process because the record does not include clear and convincing evidence he was an unfit parent. He also claims the trial court erred when it found the parental benefit exception in section 366.26, subdivision (c)(1)(B)(i), did not apply because the record shows he has a beneficial relationship with J.C.

In this matter, we have reviewed the petition and offered real party in interest the opportunity to respond. 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.)

Following a remand from the California Supreme Court, the trial court in this case granted summary adjudication against plaintiff policyholders claim that defendant insurer denied coverage in bad faith. The case proceeded to trial and the policyholders, after prevailing on coverage and contract damages, appealed on the bad-faith issue. The trial courts decision to grant summary adjudication on the bad-faith claim was based on its finding that the insurer advanced a reasonable interpretation of the policy when it denied coverage. In the course of analyzing the coverage issue, however, the Supreme Court stated that the insurance policy cannot reasonably be understood as the insurer understood it. (TRB Investments, Inc. v. Firemans Fund Ins. Co. (2006) 40 Cal.4th 19, 22 (TRB).) Since the insurers motion was based only on the claim that its policy interpretation was reasonable, the motion should have been denied. The Supreme Court did not discuss bad faith in its opiniononly the coverage issue was before itbut the implications of its view that the insurers interpretation was unreasonable are clear.

A jury found defendant Genaro Anaya-Fernandez guilty of the forcible rape of Jane Doe (Doe) (Pen. Code, 261, subd. (a)(2)).[1] At the trial, the trial court permitted the prosecutor to introduce evidence that defendant had committed prior sexual assaults. Specifically, the jury heard testimony that defendant had been convicted of attempted spousal rape against his ex-wife, G.A. Defendant objected that such evidence was unduly prejudicial under Evidence Code section 352, but the trial court disagreed and admitted the evidence pursuant to Evidence Code section 1108. Defendant now appeals, contending the admission of the sexual crimes evidence was a prejudicial abuse of discretion and violated his due process rights. Court reject defendants contentions and affirm the conviction. Court also correct a conceded sentencing error in the trial courts pronouncement of judgment.

Pursuant to a plea agreement, appellant Gabriel Hiram Vega pled no contest to felony stalking (Pen. Code, 646.9, subd. (a)). The court suspended imposition of sentence, placed appellant on three years probation and ordered that he be confined in county jail for the first year of his probationary period. Appellant filed a timely notice of appeal in which he requested a certificate of probable cause (Pen. Code, 127.5). The court denied that request.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant, in response to this courts invitation to submit supplemental briefing, has himself submitted briefs in which he argues, as best we can determine, that (1) he did not enter his no contest plea freely and voluntarily and was therefore denied his constitutional right to a jury trial, and (2) the judge who presided over the entry-of-plea and sentencing proceedings was biased against him and erroneously failed to disqualify himself.

Defendant Patsy Ruth Mitchell argued with her 85-year-old mother, Wille Mae, in Willie Maes home. Due to defendants behavior after police officers arrived, she was convicted of drawing or exhibiting a deadly weapon with the intent to resist or prevent arrest by a peace officer (Pen. Code, 417.8;[1]count 1) and willfully and unlawfully resisting, delaying or obstructing a peace officer in the performance of his or her duties ( 148, subd. (a)(1); count 2). Defendant was sentenced to two years in state prison on count 1. On appeal, she challenges the sufficiency of the evidence to support both counts. Specifically, she contends there was insufficient evidence (1) that the officers were lawfully engaged in the performance of their duties when she resisted them, (2) that the sheathed knife she held was a deadly weapon, and (3) that she drew or exhibited the weapon. Court will affirm.

On August 25, 2007, appellant/defendant David Stanton (David) shot and killed Jon Flaherty.[1] Davids sister, Shawna Stanton (Shawna), was present during the homicide and helped him cover up the crime. Davids defense was that Flaherty had a history of violent assaults on his family and friends, David was afraid of him, and David shot Flaherty because he thought Flaherty was going to kill both Shawna and himself.
A joint jury trial was held for David and Shawna. David was charged with first degree murder (Pen. Code[2], 187, subd. (a)), but the jury was unable to reach a verdict and a mistrial was declared on that count. David and Shawna were both convicted of possession of a firearm by a felon ( 12021, subd. (a)(1)), and Shawna was convicted of being an accessory after the fact ( 32).[3]

Appellant/defendant Scott Kennedy and codefendant Jeremy Tosto were charged with the cultivation of marijuana, based upon their operation of an indoor garden, which consisted of 36 large and 409 germinating marijuana plants. Kennedy and Tosto relied on the affirmative defense that they were qualified patients lawfully using medical marijuana pursuant to the limited immunity provided by the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code,[1] 11362.5). After a joint jury trial, Kennedy and Tosto were convicted as charged, and the court suspended imposition of their sentences and placed them on formal probation for five years pursuant to various terms and conditions, including service of five months in jail.
In this appeal, Kennedy challenges the validity of an officers warrantless entry into the commercial premises where the indoor garden was located. Kennedy also joins in all issues raised by Tosto in his separately-filed appeal, in which Tosto argues the jury was not properly instructed on the burden of proof and quantity limitations applicable to the CUAs affirmative defense, and the court improperly imposed fines and penalties without clarifying the statutory bases for its orders. Court will remand the matter for the trial court to correct the imposition of fines and penalties, and otherwise affirm.

Nicholas Juan Gonzalez (appellant) was charged with four felony counts involving two victims: in count 1, with forcible rape (Pen. Code, 261, subd. (a)(2)) of D.C. between August 1 and October 31, 2006,[1]in count 2, with a forcible lewd act ( 288, subd. (b)(1)) upon D.C. between August 1 and October 31, 2006; in count 3, with sexual battery ( 243.4, subd. (a)) upon J.T. by touching her vaginal area while restraining her, between July 1 and 31, 2007; and in count 4, with sexual battery ( 243.4, subd. (a)) upon J.T. by touching her breasts while restraining her, between July 1 and 31, 2007. The jury found appellant not guilty of the charged offenses but convicted him of the lesser included offenses of misdemeanor battery ( 242) in count 1, misdemeanor assault ( 240) in count 2, and misdemeanor sexual battery ( 243.4, subd. (e)(1)) in counts 3 and 4. The court placed appellant on probation for three years, with conditions including service of 120 days in the county jail on count 4. The court imposed various fines and fees. On appeal, appellant contends that the trial court erred when it admitted a statement made by J.T. as a spontaneous statement and that counts 1 and 2 must be reversed because there is insufficient evidence that the assault and battery were committed within the one-year period before the complaint was filed. Appellant also contends, and respondent concedes, that the conviction for misdemeanor assault must be reversed because it is a lesser included offense of the conviction for misdemeanor battery. Court reverse the misdemeanor assault conviction and strike the attached fees and fines. Court also order modification of the judgment with respect to the fine imposed on count 1. In all other respects, Court affirm.

Appellant/defendant Jeremy Tosto and codefendant Scott Kennedy were charged with the cultivation of marijuana, based upon their operation of an indoor garden, which consisted of 36 large and 409 germinating marijuana plants. Tosto and Kennedy relied on the affirmative defense that they were qualified patients lawfully using medical marijuana pursuant to the limited immunity provided by the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code,[1] 11362.5). After a joint jury trial, Tosto and Kennedy were convicted as charged, and the court suspended imposition of their sentences and placed them on formal probation for five years pursuant to various terms and conditions, including service of five months in jail. In this appeal, Tosto argues the jury was not properly instructed on the burden of proof and quantity limitations applicable to the CUAs affirmative defense, and the court improperly imposed fines and penalties without clarifying the statutory bases for its orders. Court will remand the matter for the trial court to correct the imposition of fines and penalties, and otherwise affirm.