CA Unpub Decisions

A jury rejected Alvaro Williamsons claims of self-defense, imperfect self defense and intoxication, and convicted him of the first degree murder of a neighbor, with various personal firearm use findings. As to a second victim, the jury acquitted Appellant of an attempted murder count, and convicted him of assault with a firearm, again with various firearm findings. Court reject Appellants claims that reversible evidentiary error must be assigned to his convictions, and affirm.

Alfredo Ortega appeals his convictions of first degree murder, possession of a controlled a substance for sale and true findings on gang and weapons enhancements. Before this court, appellant argues his convictions cannot stand because the court erred in allowing the gang expert to exceed the scope of proper expert testimony by providing the only evidence against appellant supporting the gang allegation and by opining on ultimate issues. He further complains that the gang experts opinions were improper because they were based on hearsay evidence from another gang member and violated his Sixth Amendment rights under the confrontation clause. Finally, appellant claims that absent the improper evidence provided by the gang expert, insufficient evidence supported his murder conviction and the gang enhancement and that no independent evidence existed to support the admission of the gang evidence. His claims lack merit. First, appellant failed to preserve nearly all of his objections on appeal concerning the gang experts testimony. Nonetheless, as we shall explain, the testimony and opinions offered by the expert were not beyond the scope of testimony gang experts have been traditionally permitted to give, and were appropriate to aid the lay jury in understanding the evidence. Second, the evidence was used for a non-hearsay purpose and did not violate appellants Sixth Amendment rights. In any event, any possible error was harmless. Ample evidence in the record supported his murder conviction and the gang enhancement which included evidence that identified appellant as fleeing the scene of the crimes and the appellants statements made while under audio surveillance describing the crime and how the victim died, and videotape evidence depicting the events shortly before the murder. Consequently, we affirm and modify the judgment to impose the statutory security fees required under the Penal Code and remand for the superior court clerk to prepare an amended abstract of judgment.

Defendants, Cynthia Alice Brandon and Michael John Lugo, appeal from their convictions for: first degree burglary with a person present (Pen. Code[1] 459, 667.5, subd. (c)(21)); receiving stolen property ( 496, subd. (a)); and conspiring to commit burglary. ( 182, subd. (a)(1).) Mr. Lugo was also found guilty of an additional count of first degree burglary. Mr. Lugo was found to have served two prior prison terms. Ms. Brandon was found to have served seven prior prison terms. ( 667.5, subd. (b).) Defendants argue there was instructional error. Mr. Lugo further argues: the trial court improperly excluded opinion testimony and committed error regarding the fingerprint evidence; he was denied effective assistance of counsel; and, the trial court failed to hold a hearing regarding jury misconduct. Ms. Brandon argues there was insufficient evidence to either support her conviction for conspiracy to commit burglary or that she aided and abetted Mr. Lugo. Both defendants join the arguments of the other where they accrue to their benefit. Court asked the parties to address a minor sentencing issue.

Minor E.M. appeals from the order declaring him a ward of the juvenile court (Welf. & Inst. Code, 602) because he committed two robberies. He contends there was insufficient evidence he took part in one of robberies. Court affirm.

On February 2, 2000, Juan Antonio Gutierrez pled no contest to possession of cocaine base for sale (Health & Saf. Code, 11351.5). The trial court suspended imposition of sentence and placed Gutierrez on summary probation for a period of three years. On January 22, 2008, Gutierrez filed in the trial court a petition for writ of error coram nobis alleging his 2000 plea had been involuntary and should be set aside as he had received ineffective assistance of counsel. The trial court denied the petition and Gutierrez appealed. Because denial of a writ of error coram nobis based on an allegation of ineffective assistance of counsel is not an appealable order, Court dismiss the appeal.

Omar Kaly Ramos appeals a judgment following conviction of assault with a deadly weapon. (Pen. Code, 245, subd. (a)(1).) Court affirm.

V.R., the mother of the child, X.R., has filed a California Rules of Court, rule 8.452 mandate petition. The mother seeks review of an order setting a permanent plan hearing under Welfare and Institutions Code section 366.26. The mother asserts that the juvenile court erred in: assuming jurisdiction over the child; failing to consider family guardianship for the child; and denying her reunification services under section 361.5, subdivision (b)(10). Court deny the petition.

V.R., the mother of the child, X.R., has filed a California Rules of Court, rule 8.452 mandate petition. The mother seeks review of an order setting a permanent plan hearing under Welfare and Institutions Code section 366.26. The mother asserts that the juvenile court erred in: assuming jurisdiction over the child; failing to consider family guardianship for the child; and denying her reunification services under section 361.5, subdivision (b)(10). Court deny the petition.

Plaintiffs Guy B. Meyers and Roy Hifai own a 12-acre parcel of real property in Calaveras County that they intend to develop for residential and use. Plaintiffs appeal from a judgment entered after commercial the trial court rejected their challenge to the validity of Ordinance No. 2777, which was adopted by the Board of Supervisors of Calaveras County (County) in February 2004. Ordinance No. 2777 created a Road Impact Mitigation fee (RIM fee) program that imposes a fee on new developments. Plaintiffs argue that (1) the inclusion of Pool Station Road in the RIM fee program violated the Mitigation Fee Act (the Act) (Gov. Code, 66000, et seq.)[1] because traffic on the road is currently minimal and anticipated increases in usage due to new development are insufficiently demonstrated by the evidence presented to the Board of Supervisors, and (2) the procedure in Ordinance No. 2777 whereby a developer may apply for a waiver of the RIM fee violates section 66001 by making the developer shoulder the burden of proving the reasonableness of the fee. Court shall affirm. The trial court did not err in concluding that the County reasonably found Pool Station Road to meet all three prerequisites for inclusion in the RIM fee program. Court also agree with the trial court that Ordinance No. 2777 does not impermissibly shift the burden of establishing a reasonable relationship between the projects to be funded by the program and the new developments from which the fee is collected. Requiring developers to bear the burden of proving entitlement to a fee waiver does not violate the Act.

Defendant James Estes Smith appeals from a judgment entered after his motion to suppress evidence was denied. Pursuant to a negotiated plea agreement, defendant pled no contest to misdemeanor possession of MDMA (ecstasy) and was placed on three years probation on condition that he successfully completes a Proposition 36 program and serves 180 days in the county jail. Defendant asserts that the trial court erred by not suppressing evidence secured after he was illegally detained by law enforcement. Court agree defendant was illegally detained and the evidence should have been suppressed as a direct product of the detention. Accordingly, Court reverse.

Defendant Charles Gary Sullivan picked up a hitchhiker and drove her to a secluded location with the promise of showing her a hidden vein of turquoise. After hiking along a creek bed and up a tree-lined embankment, defendant handcuffed the woman, zip-tied her wrists and ankles, ordered her to lie on the ground, and said: [T]he only thing thats going to be involved is sex. Were just going to be out here for a few days having fun[.] As she pleaded with defendant, he threatened to pummel [her] or knock [her] out if she continued to look at him, explaining that he did not want her to memorize his face. While defendant hiked back to his van to get something, the woman was able to cut the zip ties on her ankles with a pocket knife she had and then escape to the main road, where she was rescued by two men driving by on an all terrain vehicle (ATV).

The sole issue in this case is whether the trial court deprived defendant Daniel Leland Hawkins of his constitutional rights when it allowed a readback of one witnesss testimony outside the presence of defendant and his attorney. Based on California Supreme Court precedent, the answer is no. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Christi H., mother of the minors, appeals from orders terminating her reunification services. (Welf. & Inst. Code, 366.21, subd. (f); 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends the juvenile court erred in finding that reasonable services were provided to her and that Health and Human Services (HHS) had complied with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) Court reverse so that HHS can demonstrate compliance with the notice provisions of the ICWA.

K.P. (appellant), the mother of S.P. (the minor), appeals from the juvenile courts order terminating her parental rights. (Welf. & Inst. Code, 366.26, 395; further unspecified section references are to this code.) Proceeding in propria persona, appellant makes multiple contentions of alleged prejudicial error. For the reasons that follow, Court shall affirm the order.