CA Unpub Decisions

In this appeal by a father, following an order terminating his parental rights under Welfare and Institutions Code section 366.26,[1]we address three issues. Did the juvenile court err when it summarily denied the fathers section 388 petition? Were parental rights appropriately terminated? And did the juvenile court err by finding the Indian Child Welfare Act (25 U.S.C. 1901, et seq. (ICWA)) inapplicable because the tribal notice provided pursuant to that act was insufficient? With respect to the third issue, we conclude the notice provided was insufficient and a conditional reversal is required. On all other points, Court find no error and affirm.

After knocking down and injuring another man in a drunken fight, defendant Miguel Angel Cabrera was charged with three assault offenses (counts one through three),[1] one charge of actively participating in a street gang (count four) and three gang enhancements to counts one through three.[2] A jury found him guilty on counts one, two, and four but found the gang enhancements not true. It found true four 10 year old convictions for robbery and assault in the State of Washington. He was sentenced to an aggregate term of 30 years to life, including a concurrent sentence on count four. The defendant appeals, principally challenging the count four conviction.

A jury convicted Justin Roy Clarke of 18 counts of residential burglary (Pen. Code, 459, 460)[1], 16 counts of burglary ( 459), two counts of receiving stolen property ( 496, subd. (a)), one count of possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)), two counts of unlawful driving or taking a vehicle (Veh. Code, 10851), one count of evading an officer with reckless driving (Veh. Code, 2800.2, subd. (a)), and one count of escaping felony custody without force (Pen. Code, 4532, subd. (b)). As to 15 of the residential burglary counts, the jury found true allegations that a non-accomplice was present. ( 667.5, subd. (c)(21).) As to 35 of the counts, the jury also found true allegations Clarke was released on bail at the time of the offense. ( 12022.1, subd. (b).) In addition, Clarke admitted having two prior vehicle theft convictions ( 666.5, subd. (c)) and two prior prison convictions ( 667.5, subd. (b), 668, 1203, subd. (e)). The trial court sentenced Clarke to an aggregate term of 44 years and eight months in prison. Clarke appeals, arguing there is insufficient evidence to support one of the residential burglary convictions and four of the burglary convictions. The People concede there is insufficient evidence to support one of burglary convictions and we reverse the judgment as to it. Court affirm the judgment in all other respects.

A jury found Otho Sarmiento Gastelum guilty of petty theft (Pen. Code, 484, subd. (a)). In a bifurcated proceeding the jury found he had suffered four prior theft-related convictions ( 666) and two strikes ( 667, subds. (b)-(i)) and served two prior prison terms ( 667.5, subd. (b)). The court dismissed one of the strikes, stayed one of the prison priors[2] and sentenced Gastelum to seven years in prison: six years (twice the upper term) for petty theft with a prior and one year for the remaining prison prior. Gastelum appeals. Court affirm.

V.B., the mother of Malachi B., T.A. and S.B. (together the children), appeals orders setting the 12-month permanency hearing regarding the dependencies of the children. V.B. contends the juvenile court erroneously shortened her time for reunification services by setting the 12-month permanency hearing date to be 12 months from September 12, 2008, the date protective custody warrants were issued for the children, rather than 12 months from December 5, 2008, the date of the disposition hearing on the Welfare and Institutions Code section 387 petition. She also asserts proper inquiry was not conducted or notice provided under the Indian Child Welfare Act (ICWA).

Jim L. Farley entered a negotiated guilty plea to one count of burglary (Pen. Code, 459; all further statutory references are to this code). In exchange, the prosecution agreed to dismiss the remaining chargesunlawful use of personal identifying information of another ( 530.5, subd. (a)) and passing a fictitious check ( 476)and two prior prison term allegations ( 667.5, subd. (b)). The parties also agreed to a stipulated sentence of 16 months, which the trial court imposed. At a subsequent restitution hearing, the court ordered Farley to pay the victim a total of $3,000 in restitution.

In case No. SCD214500, Maurice R. Franklin entered a negotiated guilty plea to receiving stolen property (Pen. Code, 496, subd. (a)) and admitted a strike (Pen. Code, 667, subds. (b)-(i)). In case No. SCS221744, he entered a negotiated guilty plea to burglary (Pen. Code, 459, 460) and admitted the same strike. The court denied Franklin's motions to dismiss the strike. It sentenced him to prison for five years four months: a stipulated four year sentence (twice the lower term) in case No. SCS221744 and a consecutive 16 month term (one-third the middle term, doubled) in case No. SCD214500. Franklin appeals. Court affirm.

Defendant and appellant Robin Frederick Mattison appeals his conviction of several counts of attempted murder, one count of corporal injury to a cohabitant, and one count of attempted arson. Defendant requests this court to independently review the denial of his Pitchess[1]motion, and he argues that the court improperly imposed the aggravated term on his conviction of corporal injury to a cohabitant, because the court used factors which were not found by a jury beyond a reasonable doubt. Court find no error, and Court affirm.

Defendant and appellant Matthew Gaston Richards appeals from a guilty plea to one count of second degree burglary. (Pen. Code, 459.) Court affirm.

In this case we hold that the trial court erred in concluding that the City of Fresno (City) was estopped from collecting $846,078.10 in fees (known as Urban Growth Management Impact Fees) from a developer constructing an apartment complex in the city. We also hold, in accordance with Bright Development v. City of Tracy (1993) 20 Cal.App.4th 783, and with the language of Code of Civil Procedure section 1094.5 itself, that an action under Government Code section 66020 (a section of the Mitigation Fee Act, Gov. Code 66000 et seq.) to attack, review, set aside, void, or annul the imposition of fees or other exactions imposed on a development project by a local agency (Gov. Code, 66020, subd. (d)(2)) is not an action in administrative mandamus when there has been no final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in an administrative decisionmaker. (Code Civ. Proc., 1094.5, subd. (a).) Court will reverse the superior courts Order Granting Writ of Administrative Mandamus, which ordered the City to refund, with interest, fees in excess of $239,966.48 and awarded attorney fees to the developer, and will direct the court to issue an order denying relief to the developer (respondent Shields West).

Utah Charles Koon stole a dozen metal ladders from a farm and was convicted of grand theft. He argues that the combination of a standard motive instruction and a codefendants testimony that Koon was unemployed contravened decisional law that evidence of poverty or unemployment is inadmissible to prove a motive for theft. Responding to an objection to the prosecutors closing argument, however, the court gave a curative instruction that the jury may not infer just because someone is unemployed he or she is a thief. Koons trial counsel requested no other or additional instruction on the issue. Combined with the curative instruction, the motive instruction was appropriate, given the state of the evidence with respect to the other defendants. To the extent that Koon claims the court should have given a different or additional curative instruction, his argument has been waived by failure to make a request at trial. Court will affirm.

It was alleged in an information filed June 23, 2008, that appellant Edwardo Pelayo Aguirre committed the following offenses: willful infliction of corporal injury on a spouse (Pen. Code, 273.5, subd. (a); count 1), false imprisonment by force or violence ( 236; count 2), and making a criminal threat ( 422; count 3). On October 9, 2008, a jury convicted appellant on counts 1 and 2 and acquitted him on count 3 and on a lesser included offense of the count 3 offense, viz., attempting to make a criminal threat ( 422, 664). On November 10, 2008, the court imposed the four-year upper term on count 1 and a concurrent two year midterm on count 2.
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 has not responded to this courts invitation to submit additional briefing.

Appellant, Paul Jaramillo (Paul), and respondent, Ramona Jaramillo (Ramona),[1]were married in 1988. Paul and Ramonas daughter was born in 1992. Although the parties separated on December 31, 1997, a petition for dissolution was not filed until July 2001. As discussed below, Paul has not met his burden of demonstrating error on appeal. The residence had been divided previously and the propriety of that disposition was not before the trial court. Further, the court did not abuse its discretion when it determined that Pauls post separation debt payments fulfilled his child support obligation. Finally, Paul has not shown that his agreement to the courts settlement proposal was coerced. Accordingly, the judgment will be affirmed.

Appellant, C.P., appeals from the juvenile courts order pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights.[1] Appellant contends that the Merced County Human Services Agency (agency) failed to obtain adequate information from family members to send to Cherokee Indian tribes and therefore failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA; 25 U.S.C. 1901, et seq.). Court will affirm the judgment.