CA Unpub Decisions

In May 2008, a California Highway Patrol officer saw defendant Patrick Kelly Trevino driving a car with its high beams illuminated. When the officer sought to stop the car, defendant accelerated it to 90 miles per hour. The officer pursued defendant for some distance, during which he drove in a reckless manner and, on occasion, drove into the oncoming lane of traffic. Defendant eventually stopped the car and fled on foot. After he was located and subdued by a police dog, a search of his car revealed drug paraphernalia. He later said that he was under the influence of methamphetamine at the time of the incident. The judgment is affirmed.

A jury convicted Maria A. Young of two counts of making a criminal threat (counts 1 & 2: Pen. Code,[1] 422 [victims Stephanie Wright and Gary Rossio, respectively]); and one count each of using the personal identifying information of another person for an unlawful purpose (count 3: 530.5, subd. (a)), false personation of another with publication of a document in that person's name (count 4: 529, subd. (2)), and false personation of another in such a manner that the personated person was subject to criminal charges, civil action or other liability (count 5: 529, subd. (3)). The court sentenced Young to an aggregate state prison term of three years four months. Young appeals, contending her convictions on counts 1 and 2 should be reversed because the court's giving of CALCRIM Nos. 223 and 302 (discussed, post) violated her right to due process under the Fourteenth Amendment to the United States Constitution as the challenged instructions prejudicially undermined the presumption of innocence and shifted the burden of proof to her to prove her innocence. Court conclude the court did not commit instructional error or violate Young's right to due process. Accordingly, Court affirm the judgment.

R.V. appeals the findings and orders entered at a nonstatutory hearing at which the court addressed placement, visitation, and other issues. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error. R.V.'s counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied.
The appeal is dismissed.

R.V. appeals the findings and orders entered at a nonstatutory hearing at which the court appointed new counsel for her. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
The appeal is dismissed.

Joseph O. III (father) appeals the juvenile courts order denying his Welfare and Institutions Code section 388[1]petition to reopen reunification services in the dependency proceedings involving Joseph O. IV (Joseph) and Emmanuel O. (Emmanuel).[2] Father also appeals the order terminating his parental rights. According to father, he was not provided with reasonable services while he was incarcerated, more reunification services would promote the minors best interest, and he proved an exception to the termination of parental rights pursuant to section 366.26, subdivision (c)(1)(B)(i).[3] Regarding the section 366.26 hearing, father contends that the juvenile court erred when it excluded testimony from the minors paternal grandmother. Also, father contends that the juvenile court applied the wrong standard when assessing whether he proved an exception to the termination of parental rights. Finally, regardless of the foregoing, he contends that we must reverse and remand this matter so that the Department of Children and Family Services (Department) can give adequate notice to the Choctaw tribes pursuant to the Indian Child Welfare Act (ICWA). The order terminating parental rights is reversed. (In re Nikki R. (2003) 106 Cal.App.4th 844, 846; In re Brooke C. (2005) 127 Cal.App.4th 377, 385 [the only order which would be subject to reversal for failure to give [ICWA] notice would be an order terminating parental rights].) If the minors are determined to be Indian children after the Choctaw tribes receive proper notice under ICWA and California law, then the juvenile court must hold a new section 366.26 hearing. If the minors are not Indian children, then the order terminating parental rights shall be reinstated. The order denying fathers section 388 petition is affirmed. However, if the minors are determined to be Indian children after the Choctaw tribes receive proper notice under ICWA and California law, then father is entitled to petition the juvenile court to invalidate the order. (Cal. Rules of Court, rule 5.486.)

A jury convicted defendant Bonney Thavisack of first degree murder (Pen. Code, 187; undesignated section references are to the Penal Code) and found that he personally used and discharged a firearm causing great bodily injury ( 12022.53, subds. (b)-(d)). The trial court sentenced defendant to 50 years to life in state prison (25 years to life for the murder conviction and a consecutive 25 years to life for the firearm use enhancement). Defendant contends: (1) The trial court erred by admitting defendants confession because it was obtained in violation of Miranda v.Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). (2) The evidence was insufficient to prove premeditation and deliberation. Court shall affirm.

The juvenile court found that defendant D.F. committed 10 sexual offenses against five children: four counts of forcible lewd act; four counts of nonforcible lewd act; and two counts of sodomy of an unconscious person. (Pen. Code, 288, subd. (b)(1), 288, subd. (a), 286, subd. (f), respectively.) On appeal, defendant contends the evidence is insufficient to support the force/duress element of one of the forcible lewd act counts (count five). Court disagree and affirm the adjudication. Court set forth the facts of count five in the discussion that follows.

Defendant Carlos Charles Cisneros, Jr., entered a negotiated plea of no contest to carjacking (Pen. Code, 215, subd. (a)), burglary (id., 459), and two counts of robbery (id., 211), along with two firearm use enhancements (id., 12022.53, subd. (b)) and one gang enhancement (id., 186.22, subd. (b)(1)). (Further undesignated section references are to the Penal Code.) In exchange, the prosecution dismissed seven counts and defendant was promised a sentence of 25 years. The trial court thereafter denied defendants motion to withdraw his plea and sentenced him as agreed. Defendant appeals, contending there is no factual basis for his pleas on any of the enhancements or on the burglary count. He further contends the trial court abused its discretion in denying his motion to withdraw his plea. Court conclude that, although the term on one enhancement should have been stayed, defendant forfeited this claim by agreeing to a 25-year sentence. Court reject defendants other claims of error and affirm the judgment.

Defendant Gerald Lee Kenyon pled no contest to several charges related to a drunk driving incident, and a jury found him guilty of assault with a deadly weapon on a peace officer and driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer. The court sentenced him to a total term of 13 years 8 months in state prison. On appeal, defendant contends the trial courts failure to instruct the jury sua sponte on the defense of accident was reversible error as to the assault conviction. In the alternative, defendant contends his trial counsel was ineffective for failing to request an accident instruction. Finally, defendant argues the sentence for the felony evasion conviction must be stayed because his intent in assaulting the officer was the same as his intent in attempting to evade the officers. Court affirm the judgment.

On December 15, 2005, a Davis Police Officer attempted to stop defendant Maurice Johnson for a Vehicle Code violation. Defendant fled the scene on foot. Despite the officers repeatedly identifying himself as an officer and ordering defendant to stop, defendant continued to flee. When he was finally cornered, defendant punched the officer in the face. Defendant fled again, and was ultimately taken into custody by another officer who had responded to the scene. The officers noticed defendant was showing significant symptoms of alcohol intoxication. He was taken to the hospital where he consented to a Breathalyzer and a blood test, the results of which indicated he had a blood alcohol content of .155/.141 percent. The judgment is affirmed.

This appeal arises from the trial court's resolution of cross-motions for summary judgment regarding the interpretation of provisions in a recorded declaration of conditions, covenants and restrictions (CC&Rs) that applies to the Canyon Haven condominium development. (Code Civ. Proc., 437c.) Plaintiff/cross-defendant/ appellant Cedric Gabriel, a condominium owner, sued defendant/cross-complainant/ respondent Canyon Haven Homeowners Association (HOA) for breach of contract, injunctive relief and negligence, after HOA had maintenance and repair work done on Gabriel's balcony and sent him an assessment for some of the costs incurred. HOA filed a cross complaint for breach of contract, injunctive relief, nuisance and declaratory relief.
On de novo review, we conclude the trial court correctly interpreted the CC&Rs regarding the obligations for maintenance and repair of the balcony. Summary judgment on HOA's cross-complaint was appropriately granted. Because the issues in Gabriel's complaint revolved around the same question of interpretation, the trial court correctly denied his motions for summary judgment and adjudication. Accordingly, Court affirm the judgment.

A jury convicted Jose DeJesus Veloz II of robbery (Pen. Code, 211) and assault with a deadly weapon (id., 245, subd. (a)(1)). In separate proceedings the trial court found Veloz's prior juvenile adjudication for assault with a deadly weapon with the personal use of a weapon (id., 245, subd. (a), 1192.7, subd. (c)(23)) qualified as a prior strike conviction (id., 667, subd. (d)(3)). The trial court sentenced Veloz to four years in prison, consisting of the lower term of two years for the robbery conviction doubled for the strike prior. The trial court stayed imposition of the sentence for the assault with a deadly weapon conviction under Penal Code section 654. The judgment is affirmed.

Plaintiff and appellant Francisco Pardo, M.D., appeals the trial court's denial of his writ of mandate brought under Code of Civil Procedure section 1094.5, subdivision (a). The trial court reviewed the administrative record and concluded the evidence supported the decision and findings of the independent hearing officer that defendant and respondent The Regents of the University of California (the Regents) had no obligation to renew Pardo's appointment as an associate adjunct professor at the University of California, San Diego (UCSD), and acted properly in allowing Pardo's appointment to lapse. For reasons Court shall explain, we conclude the hearing officer applied the correct policies and procedures to Pardo, and the Regents acted properly under those policies and procedures when it allowed his appointment to lapse. Court thus affirm the judgment.

Joshua J. entered a negotiated admission to receiving stolen property (Pen. Code, 496, subd. (a)). The juvenile court dismissed the remaining counts, which were unrelated, without a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The court continued Joshua as a ward of the court[1] and placed him on probation at home with various conditions, including that he pay restitution to the owner of the stolen property that Joshua received. At a subsequent restitution hearing, the court ordered Joshua to pay the victim $3,205. Joshua appeals, contending the court abused its discretion by ordering him to pay $3,205 in restitution because the victim's losses were not reasonably related to his crime of receiving stolen property.