CA Unpub Decisions

A jury found defendant Gilberto Bautista guilty of murder, and found it to be true that in committing the murder he discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (d),[1] and personally used a firearm within the meaning of section 12022.5, subdivision (a). The jury also found defendant guilty of possession of a firearm by a felon and street terrorism. But the jury did not find it to be true the special circumstance that the murder was committed for a criminal street gang purpose within the meaning of section 190.2, subdivision (a)(22), or that either the murder or the possession of a firearm by a felon crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The court sentenced defendant to 50 years to life in prison. Defendant testified in his trial. He said he had a gun with him all day on August 17. He admitted he shot and killed Caballo.

After the start of an evidentiary hearing to address issues of child custody and visitation, Lirra Marino-Bishop (Bishop) requested the family court order her ex husband, Mark Marino (Marino), to pay her attorney fees and costs, pursuant to Family Code section 2030, and to continue the hearing. The court denied her request as untimely, and Bishop appealed.
More than 18 months had passed between the filing of Marinos order to show cause (OSC) regarding child custody and visitation, and the date Bishop filed her motion for attorney fees and costs. Bishops motion was filed after the hearing had begun, and just three court days before the continued hearing date. Given these circumstances, we conclude the family court did not abuse its discretion by determining Bishops motion was untimely, and Court therefore affirm.

While driving under the influence of alcohol and drugs, appellant Michael Vaughn Nickerson caused a fatal traffic accident near Barstow. Following his conviction for manslaughter and other crimes, the court sentenced him to 25 years to life, plus 5 years based on his prior record. On appeal, he contends his convictions should be reversed because the police did not respect his Miranda rights (see Mirandav. Arizona (1966) 384 U.S. 436 (Miranda)) and the court committed evidentiary and instructional error. He also contends the court erred in failing to dismiss one of his prior strike convictions and by denying him conduct credits toward the indeterminate portion of his sentence. Court agree with appellants last contention, and therefore Court modify the judgment with respect to his conduct credits. Other than that, however, Court affirm the judgment in its entirety.

Elmer Murry, Jr., appeals from a postjudgment order that fixed the amount of attorney fees and costs awarded to Pacific Ranch Homeowners Association (Association), after the latter prevailed in this action to compel Murry to remove a hot tub from his condominium unit. Murry argues the award was unreasonable. Court disagree and affirm.

Christy L. and David R. (parents) each appeal from the juvenile courts order terminating their parental rights to their three daughters, 9 year old M.R., 6 year old C.R., and 5 year old L.R., and their one son, 8 year old J.R. (Welf. & Inst. Code, 366.26; all statutory references are to this code.) They contend this was error because there was insufficient evidence of adoptability. Court find no error and affirm the order.

Defendant Jay Dee Freeman appeals a judgment entered after he pleaded guilty to one count of receiving stolen property (Pen. Code, 496, subd. (a)),[1] and admitted a prior prison term allegation ( 667.5, subd. (c)). The trial court suspended imposition of sentence, and placed defendant on four years probation with various terms and conditions, including that he complete the residential treatment program at City Team Program. Defendant filed a timely notice of appeal and the trial court granted defendants request for a certificate of probable cause.
After independently reviewing the entire record and the supplemental brief filed by defendant, we asked counsel for further briefing on the following issues: (1) Was defendant entitled to the benefit of the plea bargain, including three years probation, despite not being accepted in Delancey Street? Or, was acceptance into the Delancey Street program a condition precedent to the plea bargain? (2) If, not, did the court err in not providing the defendant an opportunity to withdraw his plea to imposing a probation order which did not comport with the plea bargain? (3) Was defendants proposal to complete City Team as a condition of probation an implied waiver of his right to withdraw his plea?

Norberto John Vargas appeals a judgment ordering his involuntary commitment as a Sexually Violent Predator under Welfare and Institutions Code, sections 6600 et seq. On appeal, Vargas asserts the trial court erred in retroactively changing his initial commitment order to an indeterminate term, the amendments to the Sexually Violent Predator Act allowing indeterminate terms are unconstitutional, the petition for recommitment should be dismissed due to the governments failure to bring Vargas to trial, and that his trial counsel provided ineffective assistance for failing to address the retroactivity argument with the court.

A. M. (father) seeks writ relief (Welf. & Inst. Code, 366.26, subd. (l); Cal. Rules of Court, rule 8.452)[1] from the juvenile courts order terminating family reunification services and setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for his son A. M. (child) (born 2006). He challenges the juvenile courts conclusion to terminate the services and finding that he was provided reasonable services. Court reject the challenges and deny the petition.

Pelisi Fonua (appellant) was convicted of attempted second degree murder (Pen. Code, 187 & 664), two counts of inflicting corporal injury on a spouse ( 273.5, subd. (a)), felony child endangerment ( 273a, subd. (a)), and assault with force likely to produce great bodily injury ( 245, subd. (a)(1)). He was sentenced to a combined unstayed prison term of 16 years and 4 months. On appeal, Fonua contends the trial court made numerous trial and sentencing errors. In a petition for writ of habeas corpus, which we consider along with the appeal, Fonua claims he was denied his right to the effective assistance of counsel. Court affirm the judgment and sentence and deny the writ petition.

A jury convicted appellant Andre Lavont McDaniel of violating Vehicle Code[1]section 4463, subdivision (a) (section 4463(a)). He pleaded no contest to a charge of driving with a suspended or revoked license in violation of section 14601.2, subdivision (a). The trial court sentenced appellant to eight months in jail for the section 4463 violation and 180 days for violating section 14601.2. The court considered these convictions in conjunction with judgments from a previous case, and imposed an aggregate sentence of five years and eight months. On appeal, appellant challenges his section 4463 conviction, arguing that (1) section 4462, subdivision (b) (section 4462(b)) is a lesser included offense of section 4463(a) and thus the trial court should have instructed the jury on the lesser included offense; and (2) there is insufficient evidence to support the finding that appellant had the requisite knowledge and intent to violate section 4463. Court affirm the judgment.

Appellant Gregory S. Cocotis pleaded no contest to assaulting his wife. (Pen. Code, 242.) Persons convicted of misdemeanor assault are prohibited from possessing firearms within 10 years of the conviction. (Pen. Code, 12021, subd. (c)(1).) Appellant Cocotis, in propria persona, contends that his attorneys, defendants Patrick Clancy and Bruce Laning, failed to advise him of this firearm restriction and is suing them for legal malpractice. The trial court entered judgment for defendants following a demurrer and motion for judgment on the pleadings. We affirm the judgment. A convicted criminal cannot sue his attorneys for malpractice where, as here, he has not shown he was innocent of the criminal offense.

Defendant Rolf Gregory Kissmann appeals from a judgment convicting him of gross vehicular manslaughter and driving under the influence and sentencing him to seven years eight months in prison. The convictions arose out of a collision in which two persons were killed and a third was injured. Counsel has advised that examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Counsel has informed defendant that he may personally file a supplemental opening brief, but despite requesting and being granted two extensions of time in which to do so, the second extension having expired on November 21, 2008, defendant has not filed a supplemental brief or requested an additional extension. Having reviewed the entire record, Court conclude there are no arguable issues and affirm.

Sufficient evidence supported an order of the juvenile court finding a minor was guilty of robbery as an aider and abettor.

Petitioner Vernon Madden, the defendant in a pending Sexually Violent Predator (SVP) commitment proceeding under the Sexually Violent Predators Act (SVPA), Welfare and Institutions Code section 6600 et seq.,[1]seeks a peremptory writ of mandate or prohibition compelling the superior court to (1) set aside its order denying his motion for appointment of a DNA testing laboratory, and (2) enter a new order compelling appointment of such a laboratory. The SVPA petition alleged Madden had suffered two prior convictions for sexually violent offenses. After probable cause was found to hold Madden in custody for trial on the commitment petition, Madden sought appointment of a laboratory to conduct DNA testing of the rape kits collected from the victims in those two cases. Madden argued that DNA testing would lead to admissible evidence proving he either had not committed the crimes, or that he had not committed them in the fashion described by the victims. After a lengthy series of motions and hearings below, the superior court denied the motion. Court conclude the superior court properly denied the motion for DNA testing as to one of the rape kits, but should have granted the motion in regard to the other. Accordingly, Court grant the requested relief in part.