CA Unpub Decisions

On August 23, 2007, Phoukham Aphaivong pled guilty to one count of burglary (Pen. Code, 459). He was granted probation subject to 240 days local custody and other terms and conditions. On March 25, 2008, following an evidentiary hearing the court revoked Aphaivong's probation. He was sentenced to the upper term of three years in prison. Aphaivong appeals contending the upper term sentence violates his right to jury trial as defined in Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270. In the alternative, Aphaivong contends the trial court erred in relying on his postconviction failure to comply with probation as an aggravating factor in violation of the California Rules of Court. Court will reject his contentions because Aphaivong waived his so called "Blakely Rights" when he pled guilty in the present case. Thus he was eligible for an upper term sentence (People v. Black (2007) 41 Cal.4th 799, 812) when he was sentenced after the revocation of his probation, and the trial court stated adequate reasons for the sentence imposed.

Virginia H. appeals a judgment terminating her parental rights to her minor daughter, Laura C., under Welfare and Institutions Code section 366.26. Virginia argues the court lacked sufficient evidence to support its findings that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating her parental rights. Court affirm the judgment.

Blanca P. appeals an order summarily denying her Welfare and Institutions Code section 388 petition seeking the return of her son, Donnie P., to her care and the initiation of family maintenance services. Court find no abuse of discretion and affirm the order.

Defendant Robert Garza made a series of telephone threats to his ex-wife, to her new husband, and to his own children. For example, he told his 16-year-old son, Im going to kill you and Im going to strap you down. And Im going to kill your brother first, slowly. And then Im going to kill your mom and your dad and make you watch. And Im going to get you last. The victims believed they were in imminent danger, in part because, while defendant lived in northern California, their caller ID indicated that he was calling from the Riverside area. A jury found defendant guilty on one count of stalking (Pen. Code, 646.9, subd. (a)) and four counts of making a criminal threat (Pen. Code, 422); it found him not guilty of attempted extortion (Pen. Code, 524). He was sentenced to a total of four years in prison.
Court affirm.

The juvenile court found true an allegation that C.H. (minor) committed petty theft from a retail merchant (Pen. Code 484, subd. (a), 490.5), declared her a ward of the court, and placed her in her parents custody on probation with various terms and conditions. On appeal, minor contends insufficient evidence supports the juvenile courts true finding. In addition, minor argues that the court failed to exercise its discretion in declaring her a ward of the court. Court find minors contentions unavailing and, therefore, affirm the judgment in full.

Petitioners D.S. (mother) and J.S. (father) filed separate petitions for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile courts order terminating reunification services as to their child, S.S. (the child) and setting a Welfare and Institutions Code[1]section 366.26 hearing. Mother and father (the parents) argue that: 1) they were not provided with reasonable reunification services; and 2) the court erred in finding it detrimental to return the child to their care. Mother additionally contends that the court erred in admitting her psychological evaluations into evidence since the evaluations did not specify how it would be detrimental to place the child in her care. Court deny the writ petitions.

Nineteen-year-old Jorge Alfaro Marin entered a plea of no contest to felony engaging in sexual intercourse with a minor more than three years younger than himself, a violation of Penal Code section 261.5, subdivision (c), with the understanding that he would be sentenced to no more than a year in county jail and that he would not be required to register as a sex offender. Marin was sentenced to 90 days in jail and was placed on three years of felony probation.
After an evidentiary hearing, the trial court denied the motion.

Plaintiffs sued defendant for damages, to enjoin defendant from continuing to operate the convenience store owned by the corporation in which plaintiffs and defendant were shareholders, and to dissolve the corporation. On defendants motion, the court stayed the dissolution and ordered an appraisal of the value of plaintiffs shares of the corporation, to allow the corporation or defendant to buyout plaintiffs interest if either chose to do so. After a trial of the issues other than valuation, the court awarded plaintiffs damages only on their claim that defendant took an unauthorized brokers commission on the purchase of the store; on their other claims for damages, based on allegations defendant forged documents in order to take over operation of the store, the court concluded plaintiffs had not proved they were damaged by defendants conduct. The court ordered that the corporation be dissolved or bought out in accordance with the appraisal; it denied injunctive relief as moot, in light of its ruling on the dissolution and buyout. Plaintiffs appeal, contending they were improperly denied damages and injunctive relief, and the court should have modified the appraised value of their shares by excluding certain expenses from the computation.

Defendants appeal from a judgment entered against them after jury trial. Defendants do not challenge the finding of liability; they challenge only certain items of the damages awarded. They assert the jury failed to apportion the future noneconomic damages between those caused by plaintiffs preexisting condition and those caused by the incident for which defendants were held responsible. They also contend the trial court improperly failed to reduce the damages awarded for past medical expenses, even though the hospitals bill was assigned to a third party in exchange for a much smaller sum. Court affirm.

Appellant Tana Jeanette David was convicted after jury trial of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and the trial court found true a prior prison term enhancement allegation (Pen. Code, 667.5, subd. (b)). At sentencing, appellant received three years probation. On appeal, she contends: (1) insufficient evidence supports the jurys verdict; and (2) the trial court erred when it failed to instruct sua sponte that mere proximity to narcotics is insufficient to constitute constructive possession. Court reject appellants contentions and affirm the judgment.

Defendant Marlon Vincent Adams was convicted of inflicting corporal injury on the mother of his child. On appeal, he contends (1) the trial court erred by admitting evidence of his prior acts of domestic violence, (2) the trial court erred by instructing the jury on proximate cause, (3) the trial court erred by failing to instruct on an element of the great bodily injury enhancement, (4) the rap sheet was unreliable and therefore served as insufficient evidence to support the prior conviction finding, (5) the trial court erred by imposing the upper term and (6) the trial court erred by imposing the upper term on the enhancement. Court affirm.

This case concerns the admissibility of evidence obtained after a traffic stop. Defendant Cruz Morales argues that the stop violated Vehicle Code section 12801.5 and that marijuana found as a result of the stop should have been suppressed. The People disagree that the section was violated. As we will explain, there is no need to determine whether the stop violated the statute, since exclusion of the evidence would not have been an allowable sanction for a violation. The stop was supported by the officers reasonable suspicion that Morales was driving with an expired license, so Moraless suppression motion correctly was denied. Court affirm the judgment.

Appellant Russell Rantford Burton challenges the sentence entered after he pleaded no contest to a count of simple kidnapping (Pen. Code, 207)[1]and acknowledged he had been convicted in Harris County, Georgia of one count of rape and three counts of kidnapping. Appellant contends that the admissible evidence presented was not sufficient to prove the Georgia convictions qualified as California strike offenses and, therefore, he should have been sentenced to 10 years in prison instead of 25 years to life. Court conclude the admissions and stipulations made by appellant at the change of plea hearing preclude him from arguing the Georgia convictions were not California strike offenses. The judgment is affirmed.

Appellant Adolfo Muniz Ibarra was charged by information with two counts of felony child endangerment (Pen. Code,[1] 273a, subd. (a); counts 1-2). With respect to count 1, the information further alleged appellant inflicted great bodily injury on a child under the age of five ( 12022.7, subd. (d)). A jury subsequently convicted appellant of child endangerment under count 2 but was unable to return a verdict on count 1; count 1 was later dismissed on the prosecutions motion. The sentencing minute order and abstract of judgment reflect that appellant was sentenced to the middle term of four years on count 2 and ordered to pay a restitution fine of $1200 ( 1202.4) and a parole revocation fine ( 1202.45) in the same amount. The court suspended the section 1202.45 fine pending successful completion of parole. As Court conclude the trial courts failure to pronounce sentence on count 2 constituted an unauthorized sentence, Court remand for resentencing and direct the court to make an oral pronouncement of sentence on count 2. We also agree with the parties that the restitution fine must be reduced to $400. Although the point has not been raised by the parties on appeal, it necessarily follows the imposition of the $1200 parole revocation fine was unauthorized and the amount of that fine must be reduced to $400 to reflect the amount of the restitution fine. Court direct the trial court to amend the judgment accordingly.