CA Unpub Decisions
California Unpublished Decisions
Melissa S. (mother), mother of now 16-year-old R.E., 13-year-old R.S., seven-year-old C.J., and six-year-old A.J. appeals from the juvenile courts order terminating her parental rights as to C.J. and A.J. under Welfare and Institutions Code section 366.26. Mother contends that the trial court erred in failing to find the sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v) (section 366.26(c)(1)(B)(v) to the termination of parental rights. Mark J. (father), presumed father of C.J. and alleged father of A.J., is not a party to this appeal. Court affirm.
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Plaintiff Jose Sanchez appeals from dismissal of his breach of contract and defamation action against his former employer Alivio Medical Group, Inc., and Mark Diaz after defendants motion for judgment on the pleadings was granted. Sanchez contends a prior action involving severance pay has no collateral estoppel effect on the current action and he properly pleaded defamation. Court affirm. The prior action has collateral estoppel effect on the issue of whether Sanchez was terminated for cause, and the defamation claim is barred by the privilege of Civil Code section 47, subdivision (c) for communications concerning job performance.
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This case stems from a gang-related drive-by shooting. A jury convicted defendants Andy Otis Trotter and Roger Rernard Adams of two counts of attempted murder (Pen. Code 664/187; unspecified section references that follow are to the Penal Code), discharging a firearm from a vehicle ( 12034, subd. (c)), and shooting at an occupied vehicle ( 246). The jury found charged gang and firearm enhancements to be true ( 186.22, subd. (b)(1); 12022.53, subd. (c)), and the court also found true a charged prior conviction allegation against defendant Adams. The court sentenced defendant Trotter to an aggregate prison term of 30 years to life plus 40 years, and sentenced defendant Adams to an aggregate term of 60 years to life plus 50 years.
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After her motion to suppress was denied, defendant pled no contest to possession of methylene dioxymethamphetamine or ecstasy for sale (Health & Saf. Code, 11378). She was placed on formal probation for five years. On appeal, defendant contends it was error to deny her motion to suppress because there was no reasonable suspicion of her involvement in criminal activity to support her detention. Court disagree. Defendant was accompanying a suspect to a drug transaction set up by a confidential informant. Knowing that drug dealers often worked in tandem, the police had a reasonable suspicion to detain her. Court affirm.
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A jury found defendant Michael Lewis Green guilty of two counts of forcible rape, two counts of a lewd act with a child under 14 years of age, and one count of a lewd act with a child under the age of 14 with defendant being 10 years older than the child. The jury also found defendant had a prior strike conviction. The trial court sentenced defendant to a total of 54 years 4 months in prison.
On appeal, defendant contends the presence of a support person sitting beside two witnesses while they testified violated his confrontation right under the Sixth Amendment to the United States Constitution. Defendant also contends the trial court erred in denying his motion to introduce evidence of prior sexual conduct of a complaining witness, which violated his right to a fair trial under the United States Constitution. Finding no error, prejudice, or constitutional violation, Court will affirm the judgment. |
Defendant pled no contest to one count of lewd and lascivious conduct with his stepdaughter. (Pen. Code, 288, subd. (a).) The original sentencing court found him statutorily ineligible for probation and sentenced him to the midterm of six years. On appeal, this court remanded because the trial court erred in finding defendant ineligible for probation. (People v. Holbea (June 13, 2007, C051370) [nonpub. opn.].) At resentencing, the court denied probation and again sentenced defendant to the midterm. Defendant appeals, contending the trial court erred (1) in failing to obtain a supplemental probation report; (2) in finding defendant posed a danger and rejecting the sex offender evaluation on the basis that defendant was Romanian; and (3) in increasing the fines under Penal Code sections 1202.4, subdivision (b) and 1202.45 from $600 to $1,200. The Attorney General concedes the court erred in failing to obtain a new probation report and in increasing the fines. The Attorney General argues, however, that the first error was harmless and the courts sentencing decision was not an abuse of discretion. Court agree. Court modify the judgment as to the fines and otherwise affirm.
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A. E., the mother of 10-year-old A. S., appeals from a juvenile courts order terminating her parental rights. (Welf. Inst. Code,[1] 366.26, 395.) She contends: (1) she was wrongly denied visitation before the termination of her parental rights; (2) the denial of visitation prevented her from asserting the beneficial relationship exception to termination of rights; and (3) the juvenile court failed to ensure compliance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901 et seq.), in that the notices sent to the Cherokee tribes were insufficient. Court shall remand for further ICWA proceedings.
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In 2002 Antonyio Shawn Melvin pleaded guilty in case No. SCD164913 to escaping without force or violence from a work furlough program. (Pen. Code,[1] 4532, subd. (a)(1).) Melvin also pleaded guilty in case No. SCE218568 to possessing an explosive (Health & Saf. Code, 12305) and fleeing from a police officer (Veh. Code, 2800.2.) Under the plea agreement, the court (Judge Exarhos) sentenced Melvin to the middle term of three years for possessing an explosive and a consecutive eight months for fleeing from a police officer. Judge Exarhos also imposed a concurrent one year one day term for the nonviolent escape. The court suspended execution of sentences and placed Melvin on probation for three years, conditioned on serving 365 days in jail. Court agree and accordingly reverse the judgment.
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On appeal, Gechter contends the court erred in granting summary judgment because there are triable issues of fact as to whether (1) he voluntarily resigned or was fired from his position; and (2) he was fired in violation of public policy (a) because he complained about the City's violation of the Professional Land Surveyors' Act, Business and Professions Code section 8700 (the PLS Act); (b) of his disability; (c) because of his age; (d) because of associational discrimination; and (e) because he exercised his rights under the California Family Rights Act, Government Code section 12945.2 (the CFRA). Court affirm.
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James E. Straus appeals from the trial court's order imposing sanctions under Family Code section 271 (section 271) in a proceeding brought by his former spouse, Candyce M. Straus,[1]to obtain division of a retirement account, obtain a judgment for arrearages with respect to that account, and obtain a vocational examination. As Court explain, Court conclude that the trial court did not abuse its discretion in imposing sanctions. Accordingly Court affirm the trial court's order.
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On March 29, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on the infant minor's behalf, alleging Richard and Adriana (together the parents) suffered from developmental disabilities that prevented them from providing adequate care for him. Both parents needed assistance in caring for themselves. Additionally, Adriana suffered from cerebral palsy and used a walker, Richard had difficulty managing his anger, and they had problems with hygiene. The court ordered the minor detained. Subsequently, it found the allegations of the petition true, declared the minor a dependent child of the juvenile court, placed him in foster care and ordered the parents to comply with services.
The court opined this case differed from most juvenile dependency cases because of the parents' disabilities. The court noted the challenges the parents faced and found they had made substantive progress. It stated: "And I do think that there is a substantial probability of return provided that extraordinary efforts are undertaken." The court ordered continuing services and set the matter for an 18 month hearing. |
Defendants Porfilia Renee Mendiola and Mario Barreras appeal from judgments entered against them following jury convictions for possessing heroin (Health & Saf. Code, 11350, subd. (a); count 1), possessing heroin while armed with a loaded firearm (Health & Saf. Code, 11370.1; count 2), being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1);[1]count 3), making or possessing fictitious bills or notes with intent to defraud ( 476; count 4), possessing a counterfeiting apparatus ( 480, subd. (a); count 5), and possessing drug paraphernalia (Health & Saf. Code, 11364; count 6). Court reject Mendiolas Miranda and sufficiency of evidence contentions. Court also reject defendants contentions that sentencing on count 3 must be stayed. Defendants sentences on count 4, however, must be stayed under section 654, as agreed by the People. Accordingly, defendants sentences are reversed as to count 4, with defendants judgments affirmed in all other respects.
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The Shurtzes sued the Gorskis, seeking an easement for structures on their property which encroached on a portion of the Gorskis adjoining property. They also sought a declaration that the Gorskis were not entitled to travel over the portion of a private road which is part of their property. (They also sought damages for trespass and conversion, but raise no issue on appeal concerning those causes of action.) The Gorskis cross-complained for quiet title to their property and to an easement over the roadway, arguing that there was no other reasonable means of access to a portion of their property. After a jury trial, judgment was entered granting the Shurtzes two easements for the encroaching structures and granting the Gorskis an implied easement for use of the road. Both parties appealed.
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A jury convicted defendant of the lesser, necessarily included offense of attempted voluntary manslaughter on count 1 (count 1Pen. Code, 664, 192, subd. (a)),[1]assault with a semiautomatic handgun (count 2 245, subd. (b)), and being a convicted felon in proscribed possession of a firearm (count 3 12021, subd. (a)(1)). The jury additionally found true allegations that defendant had personally used a firearm ( 12022.5, subd. (a), 1192.7, subd. (c)(8)) in his commission of the count 1 offense and had personally inflicted great bodily injury resulting in the infliction of paralysis of a permanent nature upon the victim in his commission of the counts 1 and 2 offenses ( 12022.7, subd. (b)). The trial court sentenced defendant to an aggregate term of 15 years 8 months imprisonment, consisting of the following: the midterm of six years on count 2 as the principal term; a consecutive four years on the personal use enhancement; a consecutive five years on the great bodily injury enhancement; one-third the midterm of three years on count 1, stayed pursuant to section 654; the midterm of four years for the personal use enhancement as to count 1, stayed pursuant to section 654; five years for the great bodily injury enhancement as to count 1, stayed pursuant to section 654; and one-third the midterm of 24 months, consecutive, on the count 3 offense.
On appeal, defendant contends that there is insufficient evidence to support the jurys finding that the victim sustained paralysis of a permanent nature; that the courts pronouncement of sentence upon the count 1 offense and enhancements attached thereto was proscribed by section 654s bar against multiple punishment; that the matter must be remanded for resentencing for the courts failure to state its reasons for imposing a consecutive sentence on the count 3 offense; and that defendant was deprived of his constitutional right to a jury finding on the factors used to support imposition of a consecutive term of imprisonment on the count 3 offense. Court find defendants arguments unavailing and, therefore, affirm the judgment in full. |
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