CA Unpub Decisions

Santiago Cruz entered a negotiated guilty plea to one count of committing lewd acts upon a child under the age of 14 (Pen. Code[1], 288, subd. (a)), and admitted he was a stranger to the victim ( 1203.066, subd. (a)(3)) and he had substantial sexual conduct with the victim ( 1203.066, subd. (a)(8)). The plea bargain called for the dismissal of a second count of Penal Code section 288, subdivision (a), and a stipulated sentence of six years. Also, as part of the plea bargain, the prosecution agreed to refrain from adding the charge of engaging in sexual penetration with a child who is 10 or younger ( 288.7, subd. (b)), which would have exposed Cruz to a 15 year-to-life sentence. Subsequently, the trial court denied Cruz's motion to withdraw his guilty plea and sentenced Cruz in accordance with the plea bargain. The judgment is affirmed.

Alejandro A. appeals a judgment terminating his parental rights to his daughter, Deborah Y. He contends he did not receive adequate notice of the jurisdictional/dispositional hearing; the court abused its discretion by denying his Welfare and Institutions Code section 388 petitions; his first trial counsel provided ineffective assistance; and the court erred by terminating his parental rights without finding he was an unfit parent. Court affirm.

Susan S. appeals a judgment terminating her parental rights to her daughter, Jasmine S. She contends in light of the beneficial parent-child relationship she had with Jasmine, the juvenile court erred by not finding the exception to termination of parental rights and adoption of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) applied in this case. Court affirm the judgment.

Appellant Roberto Rosales stands convicted, following his no contest plea and admissions, of driving with a blood-alcohol content of .08 percent or more and causing injury (Veh. Code, 23153, subd. (b)), and personally inflicting great bodily injury on two victims, one of whom became comatose due to brain injury and suffered paralysis (Pen. Code, 12022.7, subds. (a) & (b)). Sentenced to a total of six years four months in prison, he now appeals, contending the trial court abused its discretion by denying probation and bail pending appeal. Because the court and parties all proceeded under the erroneous belief the courts ability to grant probation was limited by section 1203, subdivision (e)(3), Court vacate the sentence and remand the matter for a new sentencing hearing.

M.S. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her three young children. In large part, appellant contends her trial counsel was ineffective both prior to and at the termination hearing. She also argues there was insufficient evidence to support the superior courts finding that it was likely her children would be adopted. On review, Court affirm.

A jury convicted Odven Luis Minero Leon of four counts of lewd acts with a child under 14 (Pen. Code, 288, subd. (a)), acquitted him of two additional counts of the same offense, and found true a sentencing enhancement allegation pursuant to section 667.61, subdivision (a) and (e)(5), the One Strike law. The court imposed a total indeterminate term of 30 years to life, consisting of two consecutive terms of 15 years to life. Leon challenges three of the trial courts evidentiary rulings: (1) admission of the prosecutions expert witnesss testimony that the physical examinations of the two children involved were consistent with both true and false claims of sexual abuse; (2) exclusion of portions of one defense expert witnesss testimony; and, (3) exclusion of evidence concerning the child victims prior sexual conduct. He also claims the prosecutor engaged in prosecutorial misconduct during closing argument. Finally, Leon contends the cumulative effect of the prosecutors misconduct and the courts evidentiary errors was an unfair trial in violation of his federal Constitutional right to due process. For reasons fully discussed below, Court affirm the judgment.

In 1983, plaintiff Price Pfister, Inc. (Price Pfister), entered into an agreement with NI Industries, Inc., whereby Price Pfister acquired the assets of NI Industries, Inc.s Price Pfister Division which designed, manufactured, and sold plumbing products. The agreement contained an indemnity provision requiring, inter alia, NI Industries, Inc., to indemnify Price Pfister for judgments, settlements, court costs and reasonable attorney fees arising out of any occurrence whereby a Product manufactured by NI was the proximate cause of death, personal injury and/or property damage. Court also reverse the portion of the judgment declaring that, in the context of a preverdict or prejudgment settlement, the indemnity provision is triggered if Price Pfister establishes that its decision to settle was made because it had reasonably become convinced that more probably than not an injured claimant would establish proximate cause. On remand, the trial court shall modify the judgment to state that the indemnity provision requires a determination of proximate cause before the duty to indemnify is triggered, in the context of a preverdict or prejudgment settlement.

Abraham Martinez appeals from a judgment after a jury convicted him of aggravated assault, misdemeanor vandalism, and street terrorism. Martinez argues insufficient evidence supports his conviction for street terrorism, the trial court erroneously instructed the jury on that count, and he received ineffective assistance of counsel. Because we agree insufficient evidence supports his conviction for street terrorism, Court need not address his claim there was instructional error. Court reverse his conviction for street terrorism and remand the matter for resentencing. His ineffective assistance of counsel claim has no merit, and Court affirm the judgment in all other respects.

We appointed counsel to represent Carrasco on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on his behalf. Carrascos appellate counsel refers this court to the following issues that might arguably support the appeal: instructional error and ineffective assistance of counsel. Carrasco was given 30 days to file a written argument on his own behalf. Within the allotted time, this court received a letter from Carrasco. We deem this letter Carrascos written argument and consider it accordingly. Carrasco asserts there was insufficient evidence to support his conviction. He also complains the court failed to award presentence credit. Court have independently examined the record and found no viable issue. (People v. Wende (1979) 25 Cal.3d 436.) Finding no error, Court affirm the judgment.

E.V., Jr. (E.V.), now two years old, was removed from the custody and care of his parents O.H. (mother) and E.V., Sr. (father), when he was less than one month old. Mother appeals from an order of the juvenile court terminating her parental rights to E.V. (Father does not appeal the order terminating parental rights.) As explained, post, Court affirm.

M. M. (mother) appeals from a juvenile court order terminating her parental rights to her daughter G. M., pursuant to Welfare and Institutions Code section 366.26.[1] She maintains that the juvenile court erred in finding G. M. was adoptable because the report assessing her adoptability had not been prepared by an adoptions worker, because there was insufficient evidence that G. M. was adoptable, and, under the circumstances, the trial courts finding the child to be adoptable deprived mother of her right to due process. Court affirm.

Keith Oneil Hayes, Jr., (appellant) appeals from a judgment entered after the trial court revoked his probation. His sole contention is that the court erred in increasing the restitution fund and probation revocation fines. Respondent concedes, and we agree, the court erred. Court shall therefore reverse the order imposing increased fines, and in all other respects, affirm the judgment.

Victor T. Taylor (appellant) appeals from a judgment entered after the trial court denied his motion to suppress evidence and appellant entered a no contest plea. Appellants counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, Court conclude there are no issues that require further briefing, and affirm the judgment.

M.C. (born in April 1998), C.S. (born in January 2000), and T.S. (born in May 2002) were made dependents of the Humboldt County Juvenile Court on August 13, 2007. (Welf. & Inst. Code, 300.)[1] Pursuant to rule 8.452 of the California Rules of Court,[2]their mother, M.A. (petitioner) has filed a petition for extraordinary writ review of an order following the 12-month review hearing setting a hearing to select and implement a permanent plan pursuant to section 366.26 (hereafter .26 hearing). She contends she should have been granted six more months of reunification services because she established there was a substantial likelihood the minors would be returned to her, she had made significant progress with her case plan, and Humboldt County Department of Health and Human Services (Department) did not provide her reasonable services. Court reject her contentions and deny the writ.