CA Unpub Decisions

Josefina M. and Martin M., parents of Tony R. and Cristian R. (minors), appeal the juvenile court's orders denying their Welfare and Institutions Code section 388 petitions for modification.
The parents also assert the court's findings concerning the minors' adoptability and the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(B)(i) are not reviewable on appeal because the court continued the section 366.26 selection and implementation hearing under section 366.26, subdivision (c)(3). In the event that this court determines that the issues are reviewable, the parents argue that the court did not have sufficient evidence to support its findings.
The motion to augment is denied.

Following a jury trial, defendant Arthur Moses Morales was convicted of attempted carjacking. (Pen. Code,[2] 664, 215, subd. (a).) The jury further found true the allegations that defendant had one prior strike ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), had previously been convicted of a serious or violent felony ( 667, subd. (a)), and had served three prior prison terms ( 667.5, subd. (b)). On July 12, 2005, the trial court sentenced defendant to a total of 17 years in state prison.
Defendant appeals,[3]contending: (1) the trial court failed to secure a knowing and intelligent waiver of counsel before allowing him to represent himself at trial; (2) the trial court violated his due process rights by limiting his closing argument; (3) the trial court invaded the province of the jury when it commented on the evidence after the jury appeared deadlocked; (4) the trial court improperly imposed the upper term in violation of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]; and (5) the cumulative error doctrine requires reversal. Because we agree with defendants third claim that the trial court invaded the province of the jury when it commented on the evidence after the jury appeared deadlocked, Court reverse. Accordingly, Court need not address defendants other contentions.

Defendant Oscar Gonzalez appeals his convictions for violations of Health and Safety Code sections 11379, subdivision (a) and 11366.8, subdivision (a).[1] Defendant contends (1) the trial court erred in allowing drug courier profile testimony; (2) the evidence was not sufficient to establish his convictions; and (3) prosecutorial misconduct during closing argument prejudiced the jury against him. Court find no error and affirm.

Plaintiff Karen Advincula filed this action against multiple defendants, including the City of Hesperia (the City) and five of the Citys code enforcement officers (Tony Genovesi, Paula Winter, Paul Kleinsmith, Theresa Yeates and Ernie Perea).[1] She claimed that a neighbor, known to her only as George, had reported her to the City because she had refused his demand that she build a block wall and because he did not like the color of her shed. In response to Georges reports, the individual City defendants obtained inspection and abatement warrants and executed them without probable cause. She asserted federal causes of action for violation of her civil rights (42 U.S.C. 1983, 1985(3)), as well as state law causes of action. The trial court granted the City defendants special motion to strike (SLAPP motion) pursuant to Code of Civil Procedure section 425.16 (SLAPP statute) and dismissed the complaint as against them.

On May 25, 2007, an amended information charged defendant and appellant Richard Allen Wynne with second degree robbery under Penal Code section 211.[1] The information also alleged that the robbery was committed for the benefit of, at the direction of, or in association with a criminal street gang under section 186.22, subdivision (b). The information further alleged that defendant had a strike prior under sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), and a prison prior under section 667.5, subdivision (a). On appeal, defendant contends that there is insufficient evidence to prove that he violated terms of his probation and that the trial court abused its discretion in revoking his probation. For the reasons set forth below, Court affirm the judgment.

Defendant, Robert Cabada, was charged with aggravated kidnapping (Pen. Code, 209, subd. (b)(1);[1]count 1), forced oral copulation ( 288a, subd. (c)(2); count 2), and criminal threats ( 422; count 3). The jury found defendant guilty as charged on all three counts and found he used a deadly or dangerous weapon in the commission of counts 1 and 2. ( 12022, subd. (b)(1), 12022.3, subd. (a).) The jury also found true several one-strike circumstances regarding count 2, namely, simple kidnapping, aggravated kidnapping, and dangerous weapon use. ( 667.61, subds. (d)(2), (e)(1) & (4).) Defendant was sentenced to an aggregate prison term of 26 years to life, calculated as follows: (1) 25 years to life on count 2; (2) a concurrent term of seven years to life on count 1; (3) a consecutive term of one year for the section 12022, subdivision (b)(1) enhancement on count 1; and (4) a concurrent term of two years on count 3. Defendant appeals.

In October 2002, defendant pled guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) (case No. FMB005549) and was ordered to participate in the Deferred Entry of Judgment (DEJ) program. Defendant subsequently violated her DEJ program and was eventually terminated from that program. She was then placed on Proposition 36 probation for a period of 36 months. On appeal, defendant contends (1) she was deprived of her due process right to a probation violation hearing; (2) imposition of the upper term sentence in case No. FMB007544 violated her constitutional rights to a jury trial and proof beyond a reasonable doubt; and (3) her counsel was ineffective for failing to raise the hearing issue and the sentencing issue. Court reject these contentions and affirm the judgment.

.B. (Mother) and J.B., Sr., (Father) appeal after the termination of their parental rights to their two sons, J.Jr. and J., pursuant to Welfare and Institutions Code section 366.26. Mother and Father raise the following issues on appeal.
1. Mothers section 388 petition should have been granted. 2. If this court reverses the finding on the section 388 petition, it must vacate the section 366.26 order terminating parental rights.
3. The juvenile court erred by failing to find the beneficial parental relationship exception of section 366.26, subdivision (c)(1)(B)(i) applied.
4. The juvenile court erred by failing to find the sibling exception of section 366.26, subdivision (c)(1)(B)(v) applied. 5. Improper Indian Child and Welfare Act (ICWA) inquiry and notice require reversal of the termination of parental rights. 6. The juvenile court erred by refusing to grant Fathers request for a continuance of the section 366.26 hearing.
Court find no error. Hence, Court affirm.

Defendant, represented by counsel, pled nolo contendere to transportation of cocaine base and admitted the attached gang enhancement allegation. Defendant also admitted that he had sustained one prior strike conviction. In return, the remaining counts and allegations were dismissed, and defendant was promised and received a prison term of 11 years in state prison. Defendant appeals from the judgment, challenging the validity of the plea agreement and the representation he received.

Petitioner A.C. (Mother) is the mother of 17-month-old S.C. Mother filed this writ petition pursuant to California Rules of Court, rule 8.452(a) challenging an order setting a Welfare and Institutions Code section 366.26[1]permanency planning hearing as to the child. Mother contends (1) the juvenile court erred in finding that the child was at a substantial risk of danger due to her neglect and mental illness, and (2) the juvenile court erred in denying her services pursuant to section 361.5, subdivision (b)(10). For the reasons provided below, Court reject Mothers challenge and deny her petition.

The People appeal from an order granting defendants motion to disqualify the Kern County District Attorneys office from prosecuting the case against him. Defendants motion to disqualify asserted the prosecutor had consulted and retained as an expert the same expert defense counsel had consulted, but had not retained, several months earlier. After receiving evidence, including declarations filed by defense counsel under seal, and hearing argument, the court granted the motion and recused the entire district attorneys office. Concluding disqualification of the entire district attorneys office was not necessary or supported by substantial evidence, we modify the trial courts order and affirm.

Appellant D.M. (born 1991) was adjudged a ward of the court after the juvenile court found true the allegations that he committed count I, felony assault by means of force likely to produce great bodily injury (Pen. Code,[1] 245, subd. (a)(1)) with a gang enhancement ( 186.22, subd. (b)(1)), and count III, misdemeanor battery ( 242). On appeal, he contends the testimony of the prosecutions gang expert lacked sufficient foundation because it was based on speculation and unreliable hearsay. He further asserts the gang enhancement is not supported by substantial evidence because the prosecution failed to prove appellants membership in a specific gang, and that the primary activities of such a gang were the criminal offenses enumerated by statute. Finally, he contends the gang enhancement must be stricken because of a pleading error in the juvenile petition. Court affirm.

Appellant Melvin Estiwar Jacome led three Sanger police officers on a high speed chase, which culminated when he opened fire on them with a semi automatic weapon and they returned fire and wounded him. He was convicted of premeditated attempted murder of a police officer and sentenced to life with the possibility of parole plus 20 years for a firearm enhancement.
The instant appeal marks appellants third appearance before this court. He contends the trial court should have provided discovery of the personnel records of the three officers involved in the pursuit and shooting--Sanger Police Officers Sanders, Johnson and Theile--for prior complaints of excessive force, fabrication and destruction of evidence, and theft. He also contends the court should have reviewed the personnel records of a fourth officer Fresno County Sheriffs Deputy Epperly who arrived at the scene after the shooting and was present when appellant was taken into custody, for conspiracy to fabricate and destroy evidence. Court review the factual and procedural history of this case and affirm.

Appellant, K.D., appeals from the juvenile courts order pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights. Appellant contends that the department of human services (department) failed to notify all Indian tribes pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C. 1901, et seq.). Court affirm the judgment.