CA Unpub Decisions

In this family law matter, Attorney David T. Kaye appeals from an order requiring him and his former client Tara E. Adams (formerly Tara E. Burns) to pay $20,000 in attorney fees to James S. Burns as a sanction under Family Code[1] section 271 for engaging in conduct that frustrated the policies of promoting cooperation, settlement of litigation and reduction of litigation costs. Kaye argues, among other things, that sanctions may not be imposed on a party's attorney under section 271. As Court explain, we agree. Accordingly, Court reverse the order imposing sanctions on Kaye.

Child Anna S. appeals the order granting the Welfare and Institutions Code section 388 petition of her mother, Angelina S., and placing Anna with Angelina, with family maintenance services. Court reverse.

Defendant Billy Dee Means appeals an order extending his commitment to Patton State Hospital, pursuant to Penal Code section 1026.5, subdivision (b).[1] He contends that the constitutional privilege against self-incrimination applies to proceedings under section 1026.5, and that his right against self-incrimination was violated by the courts refusal to instruct the jury that he had a right not to testify and that it could draw no adverse inferences from his decision not to testify. His argument focuses on this courts decision in People v. Lopez (2006) 137 Cal.App.4th 1099 (Lopez), in which Court held that the right against self incrimination does not apply in civil commitment proceedings, including proceedings pursuant to section 1026.5. He contends that Lopez was wrongly decided. Court disagree, and Court affirm.

Following a series of violent home-invasion robberies, a jury convicted Darlene Renee Fouse (Fouse) of three counts of residential robbery in concert (Pen. Code,[1] 211, 212.5, subd. (a), 213; counts 32, 33, 34), one count of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 35), two counts of attempted murder of a peace officer ( 187, 664, subd. (e); counts 36, 37), and one count of conspiracy to commit residential robbery ( 182, 212.5, subd. (a); count 38). She was sentenced to two consecutive terms of life in prison with the possibility of parole, plus a determinate term of 11 years, and ordered to pay restitution and a restitution fine. In this timely appeal, she raises numerous claims of trial and sentencing error. For the reasons that follow, Court modify her sentence, but otherwise affirm.

Following a series of violent home-invasion robberies, David Wayne Morrison, Anthony Lawrence Martinez, and David Anthony Silva (Morrison, Martinez, and Silva, respectively; collectively, defendants) were charged, by amended indictment filed in Stanislaus County Superior Court, with 19 counts of residential robbery in concert, involving the personal use of a firearm and committed for the benefit of or in association with a criminal street gang (Pen. Code,[1] 186.22, subd. (b)(1), 212.5, subd. (a), 213, 12022.53, subd. (b); counts 1, 2, 3, 5, 10, 11, 12, 13, 15, 16, 17, 18, 19, 21, 24, 25, 32, 33, 34); two counts of attempted residential robbery in concert, involving the personal use of a firearm and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 212.5, subd. (a), 213, 664, 12022.53, subd. (b); counts 6, 7); one count of attempted residential robbery in concert, involving the personal discharge of a firearm and personal infliction of great bodily injury, and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 212.5, subd. (a), 213, 664, 12022.53, subd. (d), 12022.7, subd. (a); count 31); three counts of sexual penetration with a foreign object, involving the personal use of a firearm and tying or binding of the victim, and committed against more than one victim ( 289, subd. (a)(1), 667.61, subds. (a) & (e), 12022.53, subd. (b); counts 4, 28, 29); four counts of assault by means of force likely to produce great bodily injury, committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 245, subd. (a)(1); counts 8, 9, 14, 35); two counts of assault with a firearm, involving the personal use of a firearm and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 245, subd. (a)(2), 12022.5, subd. (a); count 20, 23); three counts of kidnapping for robbery, involving the personal use of a firearm ( 209, subd. (b), 12022.53, subd. (b); counts 22, 26, 27); one count of attempted premeditated murder, involving the personal discharge of a firearm and infliction of great bodily injury, and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 187, 664, 12022.53, subd. (d), 12022.7, subd. (a); count 30); two counts of attempted murder of a peace officer, involving the personal discharge of a firearm and committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(1), 187, 664, subd. (e), 12022.53, subd. (c); counts 36, 37); and one count of conspiracy to commit first degree robbery ( 182, 212.5, subd. (a); count 38). In addition, Silva was charged with being a convicted felon in possession of a firearm ( 12021, subd. (a); count 39), and was alleged to have been previously convicted of a serious felony ( 667, subds. (a)) that was also a strike (id., subd. (d)), and for which he served a prison term ( 667.5, subd. (b)). The judgments of conviction are affirmed as to all defendants.

On October 5, 2007, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, Rafael C., feloniously brought a folding knife onto a school campus (Pen. Code, 626.10, subd. (a), count one)[1]and that the appellant committed the offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)).[2] The petition further alleged appellant brought a knife onto school grounds for the benefit of a criminal street gang ( 186.22, subd. (d), count two).[3] After a contested jurisdictional hearing on November 2, 2007, the juvenile court found the allegations to be true.

Appellant Juan Dedios Burboa was found guilty after a jury trial of first degree murder (count 1) and two counts of attempted murder (counts 2 & 3). (Pen. Code,[1] 187, 664/187.) As to count 1, the jury found true two special-circumstance allegations, that the murder was committed during the commission of a robbery and during the commission of a kidnapping. ( 190.2, subd. (a)(17)(A) & (B).) In addition, the jury found true three firearm enhancements. ( 12022.53, subd. (d) [personal and intentional discharge resulting in great bodily injury or death], 12022.5, subd. (a) [personal use], & 12022, subd. (a)(1) [principal armed with firearm].)
Burboa was sentenced on count 1 to an indeterminate term of life without the possibility of parole. On count 2, he was sentenced to a consecutive determinate upper term of nine years. On count 3, Burboa was sentenced to a consecutive one-third the mid-term of two years four months. In addition, on each count the court imposed a consecutive 25-years-to-life term ( 12022.53, subd. (d)), a consecutive 10-year enhancement ( 12022.5, subd. (a)), and a consecutive one-year enhancement ( 12022, subd. (a)(1)). The latter enhancements were stayed pursuant to section 654. The total term was life without the possibility of parole plus 86 years 4 months.

Appellant Robert Gonzalez was convicted of multiple felonies and sentenced to 17 years eight months in prison, and the court imposed various restitution fines and fees. This court affirmed his convictions. Thereafter, he filed a motion with the superior court and requested a hearing on the validity of the restitution fines and fees imposed at the previous sentencing hearing. The court denied the motion having lost jurisdiction.
Appellant's appointed appellate counsel has filed an appeal from that ruling, and filed an opening brief which adequately summarizes the facts and cites to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Court dismiss the instant appeal as being taken from a nonappealable order.

This is both an appeal by defendant Harold Lamar Yergenson and a cross-appeal by the People in this domestic violence case. Defendant argues numerous errors, including the admissibility of the prior conviction for purposes of impeachment as well as instructional error. The People argue that the trial court abused its discretion by striking one of defendants prior convictions for sentencing purposes and by failing to sentence defendant to two 5-year enhancements that were never charged in the information. Court find both defendants and the Peoples arguments to be without merit, and affirm.

A jury found appellant Paul Boulerice guilty of one felony count of attempted firearm removal from a peace officer-Deputy Dodd (Pen. Code, 148, subd. (d), count one); two felony counts of resisting an executive officer in the performance of his/her duty ( 69, count two, Deputy Dodd and count three, Deputy Smith);[1] and one misdemeanor count of battery on a peace officer-Deputy Smith ( 243, subd. (b), count four).
Court disagree with appellant on the first and second issues. Respondent concedes the third and fourth issues. We accept these concessions. Accordingly, for reasons that follow, Court remand this case to the trial court to hold a new hearing on appellant's Pitchess motion.

On the evening of September 1, 2002, Gregory Chandler (Chandler) brought Tiffany Donaville to his apartment, intending to have sex. Unbeknownst to Chandler or Donaville, Chandlers wife, Janine Simone Chandler, was waiting in the apartment with a gun and a very different intent. She shot Donaville once in the back, killing her, and shot Chandler in the arm. For this, Ms. Chandler (hereafter defendant) was charged with the first degree murder of Donaville, and the attempted premeditated murder of Chandler (Pen. Code, 187, 664[1]). Each count was accompanied by allegations that during the commission of the offense defendant had personally discharged a firearm and caused great bodily injury ( 12022.53, subds. (b)-(d)). After an extensive trial, the jury found defendant guilty as charged on both counts, and further found that both enhancement allegations were true. Following imposition of an aggregate sentence of 50 years to life, defendant filed a timely notice of appeal.
Defendant advances numerous claims of error, contending that: (1) the trial court erred in allowing Chandlers preliminary examination testimony to be read to the jury after finding that he was unavailable for the trial; (2) crucial matters were discussed in her absence without her waiving her right to be present; (3) her trial counsel was constitutionally ineffective in a number of particulars; (4) the trial court erred in excluding evidence that was vital to defendants ability to present a defense; (5) the trial court committed several instances of instructional error; and (6) the enhancement to the attempted murder count must be reversed because the jury did not in fact find that it was true. Court affirm.

Defendant Onesimo Olmedo Garcia fired a shotgun at his girlfriend and, later the same day, shot her to death with a revolver. A jury convicted him of second degree murder, assault with a firearm (a shotgun), and two counts of possession of a firearm by a felon. (Pen. Code, 187, 189, 245, subd. (a)(2), 12021, subd. (a)(1).) The jury also found that defendant personally used a firearm in committing the murder and assault, and personally and intentionally discharged a firearm in committing the murder. (Pen. Code, 12022.5, subd. (a)(1), 12022.53, subd. (d).) Court conclude that CALCRIM No. 640, as read to the jury, was flawed in a minor respect but that the jury instructions as a whole adequately advised the jury on the types of homicide at issue in the case and that any deficiency in the instructions was not prejudicial. Court also conclude that the trial court properly refused to instruct the jury on the offense of brandishing a firearm because that offense is not a lesser included offense of assault with a firearm. Court affirm the judgment.

Defendant appeals from his conviction, by jury trial, of unlawful possession of a firearm (Pen. Code, 12021, subd. (c)(1)). On appeal, he contends that the trial court erred by preventing him from presenting a defense of mistake of fact and challenges the constitutionality of section 12021, subdivision (c)(1), claiming that it violates his right to bear arms and equal protection. Court reject these contentions and affirm.

Defendant was convicted following a jury trial of felony child abuse (Pen. Code, 273a, subd. (a), with an enhancement for personally inflicting great bodily injury (Pen. Code, 12022.7, subd. (a)). In this appeal she complains that the prosecutor committed prejudicial misconduct. Court find that no misconduct occurred and affirm the judgment.