CA Unpub Decisions

Defendant and appellant Jorge Avila Ayala appeals from an order denying a motion to vacate the judgment and withdraw his guilty plea. (Pen. Code,[1] 1016.5.)He claims he was not properly advised that he would be deported for his admission to a violation of Health and Safety Code section 11378 (possession of methamphetamine for sale). Court affirm.

On April 25, 2008, defendant was charged in an information filed by the Distrcit Attorney of San Bernardino County with attempted murder (count 1, Pen. Code, 187, subd. (a) and 664[1]), in which defendant used a deadly weapon ( 12022, subd. (b)(1), inflicting great bodily injury ( 12022.7, subd. (a). On May 22, 2008, pursuant to section 1192.7, defendant, represented by counsel, pled guilty to attempted murder, with the knife use, and without the great bodily injury allegation, for an agreed-upon disposition of eight (8) years in state prison, less custody credits. A notice of appeal was timely filed.

In a single count felony complaint filed by the District Attorney of Riverside County on March 26, 2008, defendant was charged with second degree burglary in violation of Penal Code section 459. The felony complaint also alleged two prior prison terms within the meaning of section 667.5, subdivision (b). Defendant filed a timely notice of appeal July 7, 2008 from the sentence. Defendants request for a certificate of probable cause was denied and this appeal is from a final judgment after a guilty plea and is based on the sentence or other matters occurring after the plea. The judgment is affirmed.

Defendant Frederick Jones, Sr. was convicted by jury of attempted murder (Pen. Code, 664, 187, subd. (a);[1]count 1), discharging a firearm at an occupied motor vehicle ( 246; count 3), robbery ( 211; count 4), assault with a deadly weapon ( 245, subd. (a)(2); count 5), and residential burglary ( 459; count 6). The jury found true various firearm allegations, a prior conviction allegation, and a prior prison term allegation. The trial court sentenced defendant to 15 years to life in prison, plus 37 years to run consecutively. Defendant now appeals a second time, contending (1) defendants waiver of counsel was invalid because the trial court failed to advise him of his right to appointed counsel, (2) the trial court should have terminated his self-representation because it became apparent he was unable or unwilling to abide by the rules of procedure, and (3) the competency trial on remand was improperly limited to the determination of his competency to stand trial and should have encompassed his competency to waive the right to counsel. Court affirm.

On September 22, 2007, officers served a search warrant at appellant, Dupree Denwittys residence in Bakersfield. A search of the residence uncovered three pieces of cocaine base with a combined weight of 41.3 grams, packaging material, a digital scale, and $2,000 in cash. A search of Denwittys person uncovered a baggie containing six grams of cocaine base. Following independent review of the record we find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.

E.A., now 11 years old, challenges the dependency courts April 4, 2008, order terminating family reunification services provided to his mother and placing him in a permanent plan of long-term foster care. Specifically, E.A. argues the evidence does not support the dependency courts finding that there was a substantial risk that returning him to his mothers custody would be detrimental; that the Kern County Department of Human Services (the Department) and the dependency court failed to comply with his case plan; and that the dependency court failed to make findings required by Welfare and Institutions Code section 366.22, subdivision (a). Court find there was sufficient evidence to support the courts finding of detriment and that the Department and court complied with E.A.s case plan. But we agree with E.A. that the court failed to make legislatively required findings pursuant to section 366.22, subdivision (a).

On April 15, 2008, a supplemental petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, D.J., committed robbery (Pen. Code, 212.5, subd. (c), count one),[1]assault by means or force likely to produce great bodily injury ( 245, subd. (a)(1), count two), assault with deadly weapon, a firearm ( 245, subd. (a)(1), count three), and violated probation (Welf. & Inst. Code, 777, subd. (a)(2), count four). The petition further alleged enhancements that D.J., personally used a firearm in the commission of the offense ( 12022.53, subd. (b)), committed the offense for the benefit of criminal street gang ( 186.22, subd. (b)(1)), and personally inflicted great bodily injury on the victim ( 12022.7). According to the probation report, D.J. had a referral in August 2006 for unlawfully fighting in public ( 415, subd. (1)). In January 2007, D.J. was found to be a ward of the court and placed on probation for committing an assault ( 245, subd. (a)(1)). The juvenile court exercised its authority to reduce the allegation to a misdemeanor.

J.R., Jr., appeals from a July 2008 order terminating his parental rights (Welf. & Inst. Code, 366.26) to his children. He contends the court erred 14 months earlier when it found the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) did not apply to the childrens dependency. On review, Court affirm.

Defendant Alyson Hemme pleaded guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) after the court denied her motion to suppress (Pen. Code, 1538.5) and was sentenced to three years probation. She appeals from denial of the motion, claiming she was improperly detained because police had no objectively reasonable suspicion she was engaged in criminal conduct and the methamphetamine found after police searched her car and wallet was unlawfully obtained because her consent to search was involuntary. Court disagree and affirm.

The Board of Parole Hearings[1] may deny an inmate parole if the inmate poses an unreasonable risk of danger to society if released from prison. In 2003, the Board concluded James Rockers was suitable for parole, but Governor Gray Davis reversed that decision.[2] In 2006, the Board concluded Rockers was not suitable for parole. Nothing changed between 2003 and 2006, other than Rockers continued to be what all described as a model prisoner. Rockers filed a petition for writ of habeas corpus alleging the Boards 2006 decision he was unsuitable for parole was erroneous. The issue before us is whether there was some evidence Rockers poses a current threat to public safety. Court conclude there is not, and Court grant the petition.

The Board of Trustees of the Fullerton Joint Union High School District (the District) appeals from the judgment of the trial court denying its petition for a writ of mandate, by which it sought to reverse the decision of the Commission on Professional Competence (the Commission). The Commission found that Jose Manuel Maturino, a permanent certificated employee, should not be dismissed from employment and ordered his reinstatement. The Board contends the trial court failed to apply its independent judgment as required by section 1094.5 of the Code of Civil Procedure and the matter must therefore be reversed and remanded. Court agree.

In this appeal, appellant Mali Kuo challenges a judgment entered after an order granting nonsuit on her cross complaint against defendant Edmund Sun. Kuo contends that she was deprived of a fair trial after her attorney withdrew for ethical reasons and she was forced to represent herself after a minimal continuance. She further argues that nonsuit was unwarranted on her claims of misrepresentation and breach of fiduciary duty. Court find no error and will therefore affirm the judgment.

Defendant American Surety Company (American) appeals the denial of its motion to exonerate a bail bond and entry of summary judgment against it on forfeiture of the bond. The criminal defendants bail was forfeited twice, but had been reinstated the first time, without notice to American, when the defendant appeared in court later the same day. American contends the trial court clerk is under a mandatory duty to provide notice of both forfeiture and reinstatement, and the clerks failure to provide either deprived the court of jurisdiction to declare a later forfeiture. (See Pen. Code, 1305.) Court agree and therefore reverse the judgment.

Plaintiff Tamra Curtis sued defendant Berliner Cohen Law Firm for wrongful termination in violation of public policy. Defendant successfully demurred to the complaint on the ground of res judicata. On appeal, plaintiff contends that the trial court erred by dismissing the complaint because the prior action was not terminated by a judgment on the merits. Court disagree and affirm the judgment.