CA Unpub Decisions

Maria O. and G.S. (together, the parents) appeal a juvenile court judgment terminating their parental rights to their minor children Cristian O., Ricardo O. and G.O. (collectively, the minors) under Welfare and Institutions Code section 366.26.[1] The parents contend: (1) the court erred by finding the minors were adoptable; (2) the beneficial parent-child relationship and beneficial sibling relationship exceptions to adoption applied to preclude terminating parental rights; and (3) the court could not terminate parental rights because 13-year-old Cristian objected to being adopted by anyone other than a relative. Court conclude no substantial evidence supports the court's finding the minors are adoptable. Accordingly, Court reverse the judgment.

Defendant pled guilty to gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)), and admitted two prior convictions for driving with a blood alcohol level of .08 or higher. (Veh. Code, 23152, subd. (b).) Defendant appeals from the stipulated prison term imposed pursuant to the plea bargain. The conviction and sentence are affirmed.

Defendant was charged in a first amended felony information with two counts of second degree commercial burglary (Pen. Code, 459)[1], two counts of forgery ( 475, subd. (a)), and two counts of grand theft of personal property ( 487, subd. (a)). The first amended information filed by the District Attorney of San Bernardino County also included seven special allegations filed pursuant to section 667.5, subdivision (b).
Defendants notice of appeal was filed challenging the validity of the plea and requesting the issuance of a certificate of probable cause. The request was denied by the trial court and an amended notice of appeal challenging the sentence or other matters occurring after the plea was subsequently filed.

Defendant was charged with seven counts of corporal injury to a child (Pen. Code, 273d, subd. (a)), with special allegations that defendant personally inflicted great bodily injury on a child under the age of five years ( 12022.7, subd. (d)). On the date set for his preliminary hearing, defendant pled no contest to five counts, along with the special allegations. The remaining counts were dismissed.
Defendant contends there was no factual basis for a plea of no contest to five counts of corporal injury to a child, because the facts before the trial court indicated defendant inflicted injuries on the child on only two occasions. Court agree and reverse.

In 1989, appellant Kenneth Aaron Frank, a physician, was convicted of two counts of rape for luring the victims to his apartment, causing them to drink coffee laced with a drug, and having intercourse with them during the hours they were drugged. Frank was out of custody throughout the three-year criminal proceedings. The court denied the prosecutions motion to take him into custody after the jurys guilty verdicts, Frank failed to appear for the 1990 sentencing hearing, and the court issued a bench warrant for his arrest. He was not found and the court never sentenced him. On appeal, Frank contends the trial court should have granted his new trial motion because the court reporters notes from his 1989 trial were destroyed in violation of statute and his due process rights. Court will affirm.

Appellant Jesus Mendoza pleaded no contest to unlawfully taking or driving a vehicle and was placed on formal probation for two years. On appeal, he contends the court improperly ordered him to pay costs and fees as a condition of probation. Court will modify the courts order and otherwise affirm.

Defendant was convicted of possession of cocaine (Health & Saf. Code, 11350, subd. (a)[1]) and possession of less than 28.5 grams of marijuana ( 11357, subd. (b)). Imposition of sentence was suspended and she was placed on two years formal probation and ordered to pay probation fees and costs. She contends her admissions to law enforcement officers that the controlled substances belonged to her were made in the course of a custodial interrogation, prior to any advisement of her rights, in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and therefore should have been excluded from evidence at trial. She also contends that payment of probation costs should not have been made a condition of probation. Court modify the judgment and affirm.

D.D. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her daughter, R.D. Appellants appointed appellate counsel submitted a letter dated November 5, 2008, advising that he would not be filing an opening brief for lack of an arguable issue pursuant to In re Sade C. (1996) 13 Cal.4th 952. Court extended time for appellant to personally file a letter brief which she since has done.
Court conclude appellants accusations do not amount to claims that the superior court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994) and will affirm.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing issued at a contested 18 month review hearing as to her three children. Court deny the petition.

A jury convicted defendant Jose Antonio Diaz of one count of murder in violation of Penal Code[1] section 187, subdivision (a), and one count of street terrorism in violation of section 186.22, subdivision (a). As to the murder conviction, the jury found two special circumstances: A criminal street gang purpose ( 190.2, subd. (a)(22)) and lying in wait ( 190.2, subd. (a)(15)). The jury also found defendant personally discharged a firearm during the commission of the murder ( 12022.53, subd. (d)), and defendant committed the murder for the benefit of a criminal street gang ( 186.22, subd. (b)). In the second portion of defendants bifurcated trial, the court found prior strike ( 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)) and prior serious felony conviction ( 667, subd. (a)(1)) allegations to be true. In this appeal, defendant claims his right to a fair trial was violated because of comments made by a police investigator, who was testifying on the topic of defendants alleged gang membership. Defendant also asserts the court improperly instructed the jury on imperfect self-defense (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 571). Finally, defendant raises two alleged sentencing errors (which do not pertain to defendants life sentence). Other than ordering a technical modification of defendants sentence, Court affirm.

In a prior opinion, we remanded this case for resentencing because the trial court erred by failing to state the basis for its decision to impose the upper term sentence as required by rule 4.420(e) of the California Rules of Court. (People v. Hallett (Aug. 29, 2007, G037505) [nonpub. opn.].) On remand, the trial court selected the upper term sentence, citing defendant Richard Leroy Halletts prior prison terms as the basis for imposing an upper term sentence. The record is not sufficient to support the trial courts determination defendant served a prior prison term other than the one alleged in the charging document and admitted by defendant, and for which the trial court imposed a one year consecutive enhancement sentence. Court therefore again remand to the trial court for resentencing.

Carolyn Rose Arian filed a notice of appeal after the trial court accepted her guilty plea to one count of possession of methamphetamine for sale (Health & Saf. Code, 11378) and her admission of one prison prior (Pen. Code, 667.5, subd. (b)) and two prior convictions for violating Health and Safety Code section 11378. The trial court sentenced Arian to three years in prison, in accordance with the plea agreement. Arian received a total of 397 days of presentence credit. Court have examined the entire record and counsels Wende/Anders brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) Court therefore affirm.

The mother appeals from a disposition order denying reunification services under Welfare and Institutions Code section 361.5, subdivisions (b)(5) and (b)(6) based on substantiated allegations of severe physical abuse about which the mother knew or should have known. Court find that the court properly denied reunification services and affirm.

T.W.s three children were removed from her custody after it was discovered they were being severely physically abused by T.W. (Mother) and their father (Father). After 12 months, the juvenile court terminated reunification services for both parents, who refused to address their problems with drug abuse, child abuse, and domestic violence. At the permanency hearing, the court determined the children were not adoptable due to their maladjusted and aggressive behavior after years of abuse, and it ordered the children to remain in long-term foster care. Mother filed this appeal soon after the juvenile court placed her youngest son, Vin.W., in the care of the paternal grandmother (Grandmother), but declined to also place the two older siblings with Grandmother. Mother claims the court did not adequately consider the relative placement preference under Welfare and Institutions Code section 361.3. (All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.) Father and Grandmother did not appeal the courts ruling. Court conclude the argument lacks merit, and Court affirm the order.