CA Unpub Decisions

On January 10, 2005, a petition was filed pursuant to Welfare and Institutions Code section 602 in San Diego County alleging appellant, D.E., committed one count of continuous sexual abuse (Pen. Code, 288.5, subd. (a), count one)[1]and eleven counts of committing a lewd or lascivious act on a victim under age 14 by use of force, duress, menace, or fear ( 288, subd. (b)(1), counts two through twelve). On June 7, 2005, appellant waived his constitutional rights and admitted a violation of section 288, subdivision (a), a lesser offense to section 288, subdivision (b)(1), as to count two. The remaining allegations were dismissed. The matter was transferred to Fresno County pursuant to Welfare and Institutions Code section 750. On April 7, 2008, the juvenile court committed appellant to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for a maximum term of confinement of eight years. Appellant contends the juvenile court abused its discretion in committing him to DJF. The parties agree that appellant is entitled to four more days of custody credits.

Appellant Vincent Garcia, an inmate at Corcoran State Prison, was convicted by a jury of count 1, battery upon a non-confined person (Pen. Code,[1] 4501.5), count 2, attempted battery upon a non-confined person ( 664, 4501.5), and count 3, attempting to deter or prevent executive officers from performing a duty imposed by law ( 69), based on an incident where he refused to return to his cell, punched a correctional officer, and swung at and missed another officer. The jury also found he suffered two prior strike convictions. The court imposed consecutive third strike terms of 25 years to life for counts 1 and 2, and stayed the third strike term for count 3, for an aggregate term of 50 years to life.
On appeal,[2]appellant contends the court failed to instruct the jury on the specific intent required for count 2, and for lesser included offenses for counts 2 and 3. Court find no prejudicial error.

L.C. appealed from November 2008 juvenile court orders continuing her teenage daughters permanent plan of long-term foster care and her teenage sons legal guardianship. (Welf. & Inst. Code, 366.3.)[1] At the post-permanency review hearing, the court also denied appellants petitions to regain custody of her children. ( 388.) After review of the record, appellants appointed appellate counsel submitted a letter advising this court that no brief would be forthcoming for lack of an arguable issue (In re Sade C. (1996) 13 Cal.4th 952). At counsels request, Court extended time for appellant to personally file a letter brief which she since has done. Appellant appears to challenge both the courts orders continuing the childrens permanent plans and its denial of her section 388 petitions. On review, Court find no arguable issue and affirm.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from a contested 12-month review hearing at which the juvenile court terminated her reunification services and set a Welfare and Institutions Code section 366.26 hearing as to her children M.V., H.V., O.H. and N.H. Court deny the petition.

The moral to this case is that you cannot cure an evidentiary deficiency in your moving papers by putting the necessary evidence in your reply papers at least without giving the other side a chance to examine your new evidence and then reply to it in writing. In this case centering on a request for attorneys fees in the wake of a civil contempt proceeding the other side didnt get that chance. Court must therefore reverse the $25,000 attorney fee award (based on two counts of contempt which generated fines of $1,000 each), and remand with directions to vacate the attorney fee order. Court opine, though we cannot do anything about it, that the judgment of contempt is not valid.

The Department of Motor Vehicles (DMV) suspended defendants drivers license for failure to take a chemical test after the police officer had a reasonable belief defendant was driving under the influence of alcohol and arrested him. (Veh. Code, 23152, 23612.) Defendant petitioned the superior court for a writ of mandamus ordering the DMV to reinstate his license. The petition was denied. Defendant appeals from that denial. Court affirm.

A jury convicted defendant Andy Flores of second degree robbery (Pen. Code, 211; all statutory references are to this code unless noted) and active gang participation ( 186.22, subd. (a)), and found an allegation he committed the robbery to benefit a criminal street gang ( 186.22, subd. (b)) to be true. Defendant contends the trial court erred by failing to provide sua sponte a jury instruction clarifying the dual role of a police officer who testified as both a percipient witness and as a gang expert. For the reasons expressed below, Court affirm the judgment.

Plaintiff Jeffrey O. Joyner appeals from a judgment dismissing his defamation and related claims against defendant Jerry Lazzareschi. Plaintiff contends the trial court erred by concluding immunity for interactive computer service providers under the Communications Decency Act (CDA) barred his claims. (47 U.S.C. 230(c).) He also argues the trial court abused its discretion by denying his requests for an order to show cause concerning whether defendant committed contempt or discovery abuses and to continue the summary judgment hearing. As Court explain below, defendants contentions have no merit, and Court therefore affirm the judgment.

Defendant Jarami Danyell Williams challenges his convictions for robbery, burglary, and receiving stolen property. He contends the court wrongly failed to hold a second competency hearing and instruct the jury on the lesser included offense of attempted robbery. He also contends insufficient evidence supports his receiving stolen property conviction. Court disagree with each contention, and affirm the judgment of conviction. But the court wrongly imposed a consecutive term for a firearm enhancement while imposing a concurrent term for the underlying felony. Court reverse the sentence and remand for resentencing.

A jury found defendant Darryl William Quinn guilty of possession of controlled substance paraphernalia. We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested we consider possible issues pertaining to whether the trial court erred by (1) questioning the defense expert witness regarding his opinion on usable amounts of narcotics and immediately instructing the jury on the law relating to usable amounts, and (2) admitting evidence of defendants statements to the police officers before he was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Court have examined the entire record and counsels Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) Court therefore affirm.

This writ proceeding has been brought by a father who lost his children due to a trial court error of law, and who, now in propria persona (or as we will say throughout this opinion, pro per), is vainly seeking to scrape up the money to hire a competent lawyer to represent him at the retrial after this court reversed the erroneous custody order and remanded the case for further proceedings. Court must therefore deny the writ in this case (G040870). Mary will recover her costs in the G040870 writ proceeding.

D.D. (father) appeals the juvenile courts order terminating his parental rights to his eight-year-old daughter, A.D. (See Welf. & Inst. Code, 366.26; all further statutory citations are to this code, unless noted otherwise.) Father contends, and Orange County Social Services Agency (SSA) concedes, SSA failed to comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA) when, despite multiple opportunities, it failed to ask the paternal grandmother about A.D.s potential Native American ancestry after D.D. stated at the detention hearing that he had Cherokee heritage on his grandmothers side.

A jury convicted defendant Eric Michael Denby of the first degree murder of Emma OKeith with the special circumstance the murder was committed during a kidnapping (Count 1) (Pen. Code, 187, subd. (a), 190.2, subd. (a)(17)(B)) and the rape of Lorraine N. (Lorraine) in the course of kidnapping her (count 2) (Pen. Code, 261, subd. (a)(2), 667.61, subd. (d)(2)) and of kidnapping her for the purpose of rape (count 3) (Pen. Code, 209, subd. (b)(1)). After the jury fixed the penalty for count 1 at life without the possibility of parole, the court sentenced defendant to life without the possibility of parole for that count, a consecutive 25 years to life term for count 2, and a consecutive life term (with the possibility of parole) for count 3.
Defendant contends the court (1) committed prejudicial error by failing to instruct the jury with the standard kidnapping instruction for purposes of count 1; (2) erroneously admitted evidence of his prior sexual offenses; and (3) erroneously instructed the jury it could rely on direct evidence to convict [him] even if that evidence was consistent with an innocent explanation. He also contends the prosecutor committed misconduct by eliciting victim impact evidence during the guilt phase of the trial. Court affirm.

A jury found defendant Samuel Benitez guilty of resisting an officer (Pen. Code, 69), possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), and misdemeanor resisting an officer (Pen. Code, 148). The court placed him on three years probation plus 180 days in custody to be served on weekends. Unless we are otherwise directed by the United States Supreme Court, we are bound to follow the precedent established by our own Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Court therefore affirm the judgment herein.