CA Unpub Decisions

Appellants G.W. (father) and C.W. (mother) (collectively, parents) challenge the juvenile courts ruling summarily denying their petition to modify a court order, filed under Welfare and Institutions Code section 388.[1] The parents argue[2]the court abused its discretion when it summarily denied the petition without a hearing because the petition established a prima facie case that new evidence required a modification of the jurisdiction and disposition orders and that the modification would be in the best interest of their daughter, A.W.(child). As discussed below, Court conclude that the juvenile court did not abuse its discretion when it summarily denied the petition.

A jury found defendant guilty of first degree murder (Pen. Code, 187, subd. (a))[1](count 1) and assault with a deadly weapon by means of force likely to produce great bodily injury ( 245, subd. (a)(1)) (count 2). The jury also found true that defendant committed both offenses for the benefit of, at the direction of, and in association with a criminal street gang ( 186.22, subd. (b)) and that a principal personally and intentionally discharged a firearm proximately causing death in the commission of count 1 ( 12022.53, subds. (d) & (e)(1)). Defendant was sentenced to a total term of 66 years to life in state prison. On appeal, defendant contends the 10-year gang enhancement attached to the murder conviction must be stricken; the People argue that the trial court erred in imposing one year on count 2. Court agree with the parties and will modify the judgment accordingly.

Defendant and appellant Lester McGary appeals after he pleaded guilty to one count of receiving stolen property. His appointed appellate counsel has filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], and People v. Wende (1979) 25 Cal.3d 436, raising no issues. Defendant has been afforded the opportunity to file a supplemental brief raising any additional issues he wished to have discussed, and he has failed to file such a brief. Court have conducted a review of the entire record and have discovered no issues requiring reversal. The judgment is affirmed.

R.B. (R.B. or father) challenges the sufficiency of the evidence to support the juvenile courts order removing his children and granting him reunification services. Court affirm.

A jury found that appellant Miguel Garcia Nunez stole a Fresno womans purse at gunpoint. The victim, Maria Pacheco, was able to positively identify appellant as the man who robbed her. The jury also heard evidence of uncharged misconduct, which the trial court admitted on the ground that it tended to show a common plan or design because of the type of property involved in each case (i.e., credit cards and checkbooks). On appeal, appellant contends, among other things, that the trial court erred by admitting the evidence of uncharged offenses and failing to properly instruct the jury regarding such evidence. Court disagree and accordingly affirm the judgment.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested 12-month review hearing, terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her son M.K. Court deny the petition.

Cody Ashlin Aylsworth pleaded guilty to possession of a controlled substance, methadone, in violation of Health and Safety Code section 11350 following the denial of both a Penal Code section 995 motion and a renewed suppression motion under section 1538.5, which challenged evidence obtained as a result of an investigatory vehicle stop. The court placed defendant on 36 months formal probation and ordered him to enter and complete a Proposition 36 program. On appeal, defendant challenges the constitutionality of the stop and the denial of the suppression motion. (See 1538.5, subd. (m); Cal. Rules of Court, rule 8.304(b)(4).) Court conclude that reasonable suspicion of criminal activity justified the stop and affirm.

J.O. (father) appeals an order denying family reunification services with respect to his infant son, C.O. Court reject fathers claims of error and affirm the order.

Darwin Hernandez appeals from a judgment following his conviction, after a jury trial, of three counts of committing a forcible lewd act upon a child under the age of 14 and one count of aggravated sexual assault of a child. (Pen. Code, 288, subd. (b), 269.) The jury also found four great bodily injury enhancement allegations to be true. ( 12022.8, 12022.7.) The court sentenced appellant to 53 years to life in state prison. Appellant challenges the sufficiency of the evidence to support three of the five year great bodily injury enhancements, raises instructional error, and argues that the prosecutor committed misconduct. Court affirm.

Kelley Omar Robinson appeals from the judgment entered following his guilty plea to a charge of possessing marijuana for sale (Health & Saf. Code, 11359). Robinson challenges the police officers warrantless entry into his home and the sufficiency of the subsequent search warrant affidavit, which was based in part on the marijuana odor the officers detected during the warrantless entry. Court affirm.

The jury found defendants Victor Ledesma and Ramon Pereyda guilty in count one of attempted, willful, deliberate, premeditated murder (Pen. Code, 664 & 187, subd. (a))[1]and in count five of assault with a firearm on a peace officer ( 245, subd. (d)(1)), both offenses committed upon Officer Michael Fernandez. The jury also found Pereyda guilty in count three of evading an officer (Veh. Code, 2800.2, subd. (a)(5)). As to counts one and five, the jury found true the allegation that Ledesma and Pereyda personally discharged a firearm within the meaning of section 12022.53, subdivision (c). As to all counts, the jury found true the allegation that the offenses were committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, pursuant to section 186.22, subdivision (b)(1)(C). The trial court found that Pereyda had suffered one prior felony strike conviction within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d).
In this timely appeal, Ledesma contends his Sixth Amendment right to confrontation and cross-examination was violated by the admission of David Mojicas preliminary hearing testimony and the trial court prejudicially erred in admitting Mojicas statements to the police in violation of the hearsay rule. Pereyda contends his consecutive sentences were an abuse of discretion and counsel provided ineffective representation for failing to object to consecutive sentences. Pereyda joins all arguments raised by Ledesma that are applicable to him. Court conclude Ledesma forfeited his Sixth Amendment contention regarding admission of Mojicas preliminary hearing testimony by failure to object on that ground in the trial court, and any error in admitting Mojicas statements to the police was not prejudicial. Pereydas consecutive sentences were not an abuse of discretion and counsel did not provide ineffective representation. Court affirm the judgments.

May the governing board of a school district convene in a closed session to initiate the process to dismiss a permanent certificated teacher without complying with the Ralph M. Brown Act (Gov. Code, 54950 et seq. (the Brown Act)), which requires 24 hour written notice to the employee of the right to have the matter heard in an open session? Yes. Judgment affirmed.

Spicy, an adult entertainment business featuring nude female live performances, appeals from a judgment granting the City of Santa Fe Springs a permanent injunction that enjoined Spicy from continuing to operate its adult entertainment business in an area not zoned for adult entertainment. Spicy contends the applicable zoning ordinance was unconstitutional because it (1) did not provide for adequate alternative sites for adult businesses, (2) was not adopted in reliance on studies showing its purpose was to combat adverse secondary effects associated with adult entertainment, and (3) was arbitrary and irrational by not zoning for adult entertainment in a heavy manufacturing zone where Spicy conducted its business, which zone allegedly involved fewer sensitive uses than the area actually zoned for such businesses. Court affirm.

T.M. (Mother), mother of N.M. and A.M., T.G., father of N.M., and M.M., father of A.M., appeal from the juvenile courts order terminating their parental rights after they consented to a guardianship for the children under Welfare and Institutions Code section 360. The Department of Children and Family Services (DCFS) concedes that because the juvenile court never declared N.M. and A.M. dependents of the court, it did not have the authority to terminate the appellants parental rights. Court reverse.