CA Unpub Decisions

Based upon K. M.s admissions to an investigating officer of participating with others in the robberies of David and Tali Elfersi, and the burglary of an apartment occupied by Chris Kirk and Jessica Yersac, the juvenile court sustained two counts of second degree robbery and one count of burglary against him. The minor was continued a ward of the juvenile court and ordered placed at Rite of Passage. The juvenile court is directed to amend its minute order of October 17, 2007, to show the robberies sustained were of the second degree. The orders continuing the minor as a ward of the juvenile court and committing him to Rite of Passage are affirmed.

In exchange for a stipulated sentence of 10 years, defendant Shante Galdon pleaded guilty to charges of carjacking, robbery, driving a vehicle without consent, and receiving stolen property, and admitted multiple sentencing enhancements and violating the terms of her probation. Defendant now appeals, challenging the sentence imposed as unauthorized. Court affirm the judgment.

Tina G. and D.A. appeal the judgment terminating their parental rights over Antonio A. Tina contends the juvenile court abused its discretion by failing to continue the Welfare and Institutions Code section 366.26[1]and section 388 hearings and erred by finding Antonio adoptable. She also contends the San Diego County Health and Human Services Agency (the Agency) failed to send notice as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). D.A. contends the court erred by failing to find he was Antonio's presumed father. Tina and D.A. join in each others' contentions. Court reverse and remand on the ICWA issue.

Claudia M. appeals the judgment terminating her parental rights to Erika S. Claudia contends the juvenile court erred by declining to apply the beneficial relationship and sibling relationship exceptions to termination of parental rights (Welf. & Inst. Code, 366.26, subds. (c)(1)(B)(i), (v)). Court determine the contentions to be without merit and affirm.

A jury convicted defendant of possession of a destructive device (Pen. Code, 12303.3) and attempted arson ( 455). He was sentenced to prison for five years and appeals, contending that standard Judicial Council of California Criminal Jury Instructions, CALCRIM Nos. 223 and 302, are defective and require reversal of his conviction for attempted arson. Court reject his contentions and affirm.

A jury found defendant guilty of first degree murder (Pen. Code, 187, subd. (a))[1](count 1) and discharge of a firearm at an occupied motor vehicle ( 246) (count 2). The jury also found true the special circumstance allegations that defendant intentionally discharged a firearm from a motor vehicle ( 190.2, subd. (a)(21)) in the commission of count 1 and that defendant discharged a firearm causing great bodily injury or death ( 12022.53, subd. (d)) in the commission of counts 1 and 2. As to count 1, defendant was sentenced to life without the possibility of parole plus 25 years to life for the great bodily injury enhancement; as to count 2, defendant was sentenced to five years plus 25 years to life, to run concurrently with count 1. On appeal, defendant contends the trial court prejudicially erred in admitting evidence of his gang moniker, gang membership, and uncharged bad acts. Court reject this contention and affirm the judgment.

Petitioner and appellant Ruby Don (the administrator) is the mother of decedent Bruce Schaad. She was appointed administrator of decedents estate. This dispute is over the distribution of the death benefits of decedents 401(k) retirement plan. Decedent had named Sonia Schaad (ex-wife) as primary beneficiary and ex-wifes adult daughter, Kristina Loriaux (stepdaughter) as alternate beneficiary of the 401(k) benefits. Decedent and his ex-wife were still married when decedent made these beneficiary designations. They were divorced before decedents death, however. Ex-wife disclaimed any interest in the 401(k) benefits after decedents death. The probate court awarded the benefits to stepdaughter as the alternate beneficiary. The administrator appeals this determination. Court affirm.

Pursuant to a plea agreement, defendant pled guilty to possession of a tear gas device in violation of Penal Code section 12403.7, subdivision (a)[1](count 5), and misdemeanor resisting or obstructing a peace officer in violation of section 148, subdivision (a)(1) (count 9). Defendant also admitted that he had sustained two prior prison term convictions ( 667.5, subd. (b)). In exchange, defendant received a mitigated sentence of three years four months as follows: the low term of 16 months on count 5, plus two consecutive one-year terms for the two prior prison term convictions.[2] On appeal, defendant asserts several claims relating to his plea agreement being unauthorized and also argues the trial court failed to establish an adequate factual basis for his guilty plea. Court agree with the parties that the plea was unauthorized; hence, Court reverse the judgment.

A jury found defendant guilty of transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a)) (count 1) and possession for sale of a controlled substance (Health & Saf. Code, 11378) (count 2). The trial court thereafter found true that defendant had previously been convicted of two drug-related offenses within the meaning of Health and Safety Code section 11370.2, subdivision (c). Defendant was sentenced to a total term of six years in state prison. On appeal, defendant contends (1) the new jury instructions, Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 223 and 302, violate the due process clause of the Fourteenth Amendment by shifting the burden of proof to the defendant; (2) the trial court erred in sentencing her to six years in state prison; and (3) the matter must be remanded for the court to pronounce judgment on count 2. Because the trial court failed to impose sentence on count 2, the matter must be remanded for resentencing. Court reject defendants remaining contentions.

Defendant pled guilty to committing an attempted battery by gassing on a police officer (Pen. Code, 664/ 4501.1, subd. (a))[1](count 1) and two counts of committing a battery on a noninmate ( 4501.5) (counts 2 and 3). Defendant also admitted that he had sustained three prior strike convictions ( 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)) and two prior prison terms ( 667.5, subd. (b)). Following a denial of his motion to dismiss one or more of his prior strike convictions, defendant was sentenced to a total term of 27 years to life in state prison. On appeal, defendant contends (1) the abstract of judgment should be modified to reflect the proper sentence imposed on the prior prison term enhancements; and (2) the trial court erred in denying his motion to dismiss two of his prior strike convictions. Court agree with the parties that the abstract of judgment must be amended but reject defendants remaining contention.

M. A. (mother) challenges the decision of the juvenile court to terminate reunification services and set a hearing under Welfare and Institutions Code section 366.26[1]to consider a permanent plan for the minor. Mother argues that the juvenile court abused its discretion when it found that the reunification services offered to her were reasonable and, also, that return of the minor would create a substantial risk of detriment to them. For the reasons explained below, Court disagree with these contentions and, therefore, deny the petition.

In this matter, we have reviewed the petition, the oppositions filed by real parties in interest, and the replies. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order sustaining defendants demurrer to the second cause of action and to enter a new order overruling the demurrer to that count. Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

In this matter, we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

Appellant, Brian Lee Brummett, was charged in an information with attempted murder (Pen. Code, 664 & 187, subd. (a), count one),[1]shooting at an occupied vehicle ( 246, count two), assault with a semiautomatic firearm ( 245, subd. (b), count three), brandishing a weapon ( 417, subd. (a)(2), count four), and participation in a criminal street gang ( 186.22, subd. (a), count five). The information included firearm use allegations ( 12022.5, subd. (a), counts one and three) and an additional firearm use allegation ( 12022.53, subd. (b), count one). There were also gang allegations ( 186.22, subd. (b)(1), counts one, two & three; 186.22, subd. (d), count four). Appellant contends the trial court erred under section 654 in failing to stay his conviction on count five for being a member of a criminal street gang because his conviction on count four for brandishing a weapon shared the same criminal intent. Appellant contends that his right to a jury trial was violated because the trial court imposed consecutive sentences. Appellant finally contends, and responded concedes, that there is an error in the abstract of judgment.