CA Unpub Decisions

Julio Armando Beltran appeals from the judgment following his conviction, after a jury trial, of attempted murder. (Pen. Code, 664, 187, subd. (a).)[1] The jury also found that he personally and intentionally discharged a firearm that caused great bodily injury. ( 12022.53, subd. (d).) The court sentenced him to 32 years to life in state prison. Appellant raises instructional errors. Court affirm.

Defendant and appellant, Eddie Venegas, appeals from the judgment entered following his conviction, by jury trial, for assault with a firearm upon a peace officer (two counts) and robbery, with firearm, prior serious felony conviction and prior prison term enhancements (Pen. Code, 245, subd. (d)(1), 211, 12022.5, 12022.53, 667, subd. (b)-(i), 667.5). Venegas was sentenced to state prison for a term of 19 years. He also filed an accompanying petition for writ of habeas corpus. The judgment is affirmed; the petition for writ of habeas corpus is denied.

Father S.K. appeals from the dependency courts jurisdictional findings and dispositional order. The Department of Children and Family Services cross-appeals from the dependency courts order dismissing an allegation in the departments petition against father under Welfare and Institutions Code section 300 (section 300). Court affirm the courts findings and order.

A jury convicted defendant and appellant Myrna L. Escobar (defendant) of four counts of grand theft of personal property (Pen. Code, 484, subd. (a) & 487, subd. (a)[1]) and one count of petty theft ( 484, subd. (a) & 488). The trial court sentenced defendant to three years in state prison.
On appeal, defendant contends that the trial court erred when it summarily denied her Marsden[2]motion to appoint new defense counsel without permitting her to state the reasons she requested new representation and that such error is prejudicial per se. We hold that the trial court erred in failing to allow defendant to state the reasons she requested new representation and remand with directions to the trial court to conduct a Marsden hearing as set forth below.
The judgment is reversed and remanded with directions to the trial court to conduct a Marsden motion.

Appellants M.M. (mother) and G.L. (father) appeal from the juvenile courts jurisdictional and dispositional orders pertaining to their minor son. After appellants counsel each filed letters pursuant to In re Sade C. (1996) 13 Cal.4th 952 indicating they were unable to file briefs on appellants behalf, we advised appellants of their right to file papers addressing issues they wished us to consider, and they have done so. In their combined brief, appellants raise numerous challenges to the courts orders. Court find no merit to any of these challenges and therefore affirm the courts orders.

Covarsia L. Dill appeals from the judgment entered after a jury convicted him of attempted willful, deliberate and premeditated murder (count 1; Pen. Code, 664/187, subd. (a); 664, subd. (a))[1], assault with a firearm (count 2; 245, subd. (a)(2)), home invasion robbery (count 3; 211), first degree burglary (count 4; 459), and attempted first degree residential robbery (count 5; 664/211). The jury found that the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), that appellant had suffered a prior strike conviction within the meaning of the Three Strikes law ( 667, subds. (b) - (i); 1170.12, subds. (a) - (d) ) and a prior serious felony conviction ( 667, subd. (a)(1), and that appellant had served a prior prison term ( 667.5, subd. (b)). The jury further found that, in committing counts 1, 3, 4, and 5, appellant personally and intentionally used and discharged a handgun which caused great bodily harm or death ( 12022.53, subds. (b) - (d)).
Appellant contends, and the Attorney General agrees, that the 5-year gang enhancement on the count 1 conviction for attempted premeditated murder should be stricken. (See People v. Lopez (2005) 34 Cal.4th 1002, 1007.) We modify the judgment to reflect this change in the sentence and to reflect that appellants minimum parole eligibility date is set at 30 years. ( 186.22, subd. (b)(5); People v. Jefferson (1999) 21 Cal.4th 86, 100-101 [prior strike conviction requires that 15 year minimum parole eligibility date be doubled].) The judgment, as modified is affirmed.

The minors in this appeal are T. and V., unrelated 12-year-old girls who lived in the home of Carlos, who is T.s father, and Maria, who is V.s mother. Separate dependency petitions were filed as to each girl. Carlos and T. appeal from the judgment of May 7, 2008, declaring T. a dependent of the court under Welfare and Institutions Code section 300.[2] Carlos and T. contend substantial evidence does not support the findings and orders. We hold substantial evidence supports the findings and orders in T.s case, and affirm.

K.L. (mother) and F.L. (father) appeal the order of the juvenile court terminating their parental rights to their son, A.L., and establishing adoption as a permanent plan. (Welf. & Inst. Code, 366.26.)[1]The sole issue on appeal is whether the Human Services Agency (Agency) complied the Indian Child Welfare Act (ICWA) notice requirements. (25 U.S.C. 1901 et seq.; Welf. & Inst. Code, 224 et seq.; Cal. Rules of Court, rule 5.480 et seq.) The Agency made four separate attempts at notice, which it acknowledged were incomplete. However, Court conclude the information contained in the fifth notice substantially complied with ICWA notice requirements. Court affirm.

Appellant, who was in the deferred entry of judgment program in a drug possession case and on probation for corporal injury in another case, was found to be in violation of the terms of his probation. The trial court terminated the deferred entry of judgment program, revoked probation, and sentenced appellant a total of two years and eight months in prison in the two cases. Appellant appeals from the judgment. Because he raises no arguable issues, Court affirm.

S.W. (mother) appeals from the orders of the juvenile court denying her request for a continuance, denying a modification petition and terminating parental rights to her daughter, A.G. (Welf. & Inst. Code, 388, 366.26, subd. (c)(1).)[1]Mother contends that (1) she was entitled to a continuance of the six-month status review hearing to allow her to offer additional evidence; and (2) the trial court erred by concluding that the parent-child exception to adoption did not apply. Mother acknowledges that her appeal was not timely filed, but argues that we should apply the doctrine of constructive filing. Court address her argument on the merits, and affirm. The parental rights of the minor's father were terminated in the dependency proceedings, and he is not a party to the appeal.

Michelle Diane Williams Garcia appeals from the judgment entered following her guilty plea to one count of embezzlement (Fin. Code, 3531), two counts of forgery (Pen. Code, 470, subd. (d)),[1] one count of grand theft ( 487, subd. (a)), and five counts of filing a false income tax return. (Rev. & Tax. Code, 19705, subd. (a)(1), 19706.) As to the embezzlement, forgery, and grand theft counts, appellant admitted enhancement allegations that (1) she had engaged in a pattern of related felony conduct involving the taking of more than $500,000 ( 186.11, subd. (a)(2)), and (2) the aggregate losses to the victims exceeded $1,000,000 and arose from a common scheme or plan. ( 12022.6, subds. (a)(3) & (b).) Appellant was sentenced to prison for 10 years, 4 months. The sentence included a two-year term for the $500,000 enhancement on the embezzlement count ( 186.11, subd. (a)(2)) plus a three-year term for the $1,000,000 enhancement on the same count. ( 12022.6, subds. (a)(3) & (b).) After sentencing, appellant obtained a certificate of probable cause. ( 1237.5.) Appellant contends that, by imposing prison terms for both enhancements, the trial court violated the proscription against multiple punishment of section 654 as well as her constitutional rights. Court affirm.

Appellant R. H. (mother) appeals from a judgment of the juvenile court terminating parental rights to her twin sons (T-1 and T-2, or the twins) and establishing adoption as their permanent plan. (Welf. & Inst. Code, 366.26.)[1] In a prior appeal (In re R. H. (Apr. 30, 2008, B205619), pursuant to the stipulation of the parties, we conditionally reversed the juvenile court's order of January 23, 2008, terminating parental rights due to a failure to adequately inquire about Indian ancestry pursuant to the Indian Child Welfare Act (ICWA). We also directed the juvenile court to reinstate the order terminating parental rights if no tribe found that the children fell within the meaning of ICWA within 60 days of notice. Following remand, the juvenile court terminated mother's parental rights. Mother argues that the juvenile court erred by finding compliance with ICWA requirements despite the failure of the department of social services (DSS) to provide the tribes with adequate information, and by reinstating the order terminating parental rights before allowing the tribes the requisite 60 days to respond. Court affirm.

A group of investors banded together to finance the construction of a three-story office building. Unbeknownst to the group, their leader purportedly managed to funnel off the proceeds of a $2.45 million construction loan. The messy aftermath of a real estate deal gone wrong spawned this contentious litigation. Numerous parties were not paid for their construction work, and numerous other parties were left holding the proverbial bag as guarantors of the loan.
Plaintiff Center and members Ron Sykora and the Flemings appealed the judgment in favor of Bank. The parties subsequently stipulated to dismissal of the appeal. With the dismissal, we are left with Banks appeal of the judgments declaring the guaranty of completion unenforceable, foreclosing the mechanics lien, and awarding attorney fees in favor of Dudash. Bank contends the court erred in gauging the consideration necessary for enforcement of the guaranty of completion, the court failed to correctly analyze the mechanics lien, and the court abused its discretion in awarding attorney fees. Dudash seeks the recovery of sanctions against Bank. Court affirm the trial courts judgment but deny the request for sanctions.

A jury convicted Kenneth Elbert Steele of assault, assault by means of force likely to produce great bodily injury, criminal threats and attempted false imprisonment. (Pen. Code, 240, 245, subd. (a)(1), 422, 664/236; further unspecified section references are to this code.) The trial court sentenced defendant to prison for three years eight months, and he timely filed this appeal. In our original opinion we reversed the felony assault conviction, concluding no substantial evidence showed that defendant had the present ability to ignite oven gas and thereby injure the victim. The California Supreme Court remanded the case with directions to reconsider in light of its subsequent opinion in People v. Chance (2008) 44 Cal.4th 1164 (Chance). On reconsideration in light of Chance, Court conclude substantial evidence supports the felony assault conviction. We reject defendants other claims and affirm the judgment in full.