CA Unpub Decisions

A jury acquitted defendant Alejandro Quinones Barragan of two counts of attempted murder and one count of arson but found him guilty of arson of an inhabited structure, possession of methamphetamine, and possession of controlled substance paraphernalia. Defendant was sentenced to five years eight months in state prison. Defendant appeals, claiming the trial court erroneously denied his motion pursuant to Miranda and erred in imposing restitution and court security fees. The judgment is otherwise affirmed.

The prosecution tried defendant Terry Mitchell on a theory of first degree murder for the stabbing of his girlfriend of five years, but a jury convicted him of voluntary manslaughter. He contends the trial court committed reversible error by admitting evidence he physically abused a former girlfriend and his daughter. Finding no abuse of discretion, Court affirm.

D.S., the mother of J.T. and M.S. (mother), and J.T. the father of J.T. (father), appeal from juvenile court orders adjudging the minors dependent children and removing the minors from parental custody. (Welf. & Inst. Code, 360, subd. (d)), 395.) Mother and father make several contentions of alleged prejudicial error. Court affirm the orders.

On August 3, 2004, defendant Roger Dale Mitchell went to his monthly meeting with his probation officer. He appeared agitated, with shaking hands, rapid speech, and unusual sweating, so the probation officer asked if he had recently used methamphetamine. Defendant said no, and agreed to a drug test.

In October 2006, defendant Harry Albert Sebree was arrested on suspicion of domestic violence. While in custody, defendant admitted to putting his hands down the pants of his girlfriends eight-year-old daughter on more than one occasion. Defendant attempted to defend his conduct by explaining that he had been using drugs, and had a substance abuse problem. He was nevertheless arrested and charged with four counts of committing a forcible lewd act upon a child under the age of 14 (Pen. Code, 288, subd. (b)(1)).
The judgment is modified.

On appeal, without a certificate of probable cause, defendant contends that the trial courts dismissal of the strike allegation was ineffective, and resulted in an unauthorized sentence because the court did not state its reasons for the dismissal on the record. Because the striking of the strike was a material component of the plea bargain, defendant requests that we remand the case to allow the trial court to either state sufficient reasons for striking the strike or allow him to withdraw his plea. As will be explained more fully below, defendants appellate challenge is, in substance, an attack on the validity of his plea. Accordingly, his appeal must be dismissed for lack of a certificate of probable cause.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Having reviewed the record as required by Wende, Court affirm the judgment.

Shortly before midnight on January 28, 2008, defendant Christopher John Day drove a car with no rear license plate through a construction zone at approximately 80 miles per hour. Using emergency lights and siren, Deputy Sheriff Michael Putnam began a pursuit. The car slid into a driveway where it hit a parked pickup truck, then accelerated to about 40 miles per hour in a residential area. After driving through a red traffic light, defendant stopped the car and fled on foot. Putnam caught defendant when he attempted to climb a fence. They struggled and defendant did not comply with Putnams orders to lie down on his stomach and place his hands behind his back. Putnam and his partner handcuffed defendant and walked him toward the patrol car; but defendant broke free and ran down the street before he was recaptured. The judgment is affirmed.

Reginald Butler appeals a judgment entered following his guilty plea to one count of possession of cocaine base, a controlled substance (Health & Saf. Code, 11350, subd. (a)). On appeal, he contends: (1) he was denied his statutory right to have the same judge hear his second motion to suppress evidence under Penal Code section 1538.5; (2) the doctrine of collateral estoppel barred the trial court from admitting evidence suppressed in response to his first motion to suppress; and (3) he was denied his constitutional right to due process of law.

Following a bench trial, Rex Franco Fabros (Fabros) was convicted of committing lewd acts upon a child. (Pen. Code, 288, subd. (a), counts 1-8);[1]lewd acts upon a child 14 or 15 years old ( 288, subd. (c)(1), counts 9-17); unlawful sexual intercourse with a minor more than 3 years younger than the perpetrator ( 261.5, subd. (c), counts 18-22); forcible rape ( 261, subd. (a)(2), count 23) and false imprisonment by violence, menace, fraud and deceit ( 236, 237, subd. (a), count 24). As to counts 1 through 8, allegations were found true that he had sexual contact with the victim, who was under 14 years old. ( 1203.066, subd. (a)(8).) The court sentenced Fabros to prison for a term of 31 years four months. Fabros contends insufficient evidence supported the convictions on counts 1 through 11, and the trial court erred by restricting the psychologist's testimony under the psychotherapist-patient privilege. Court affirm.

Fatema Qassimyar appeals from a judgment in favor of Nicholas Saenz, M.D., Henry Krous, M.D., Denise Malicki, M.D., Deborah Schiff, M.D., and William Roberts, M.D. on her lawsuit seeking damages assertedly sustained after she underwent surgery to remove an abdominal mass, resulting in the removal of four of her surrounding organs. The trial court had granted defendants' summary judgment motions, ruling in part that plaintiff did not present admissible evidence rebutting expert declarations stating that defendants' medical care and treatment complied with the applicable standard of care, or showing that her parents' surgical consents were not based on full disclosure. Plaintiff appeals, challenging the grant of summary judgment on grounds she raised conflicting evidence on her causes of action for negligence, breach of fiduciary duty and breach of contract. She further contends the court erred by sustaining demurrers to her causes of action for battery and fraud. Court affirm the judgment.

Defendant and appellant Paul Blazevich (Paul), representing himself on appeal, contends a $50,000 note he drafted in 1993 in favor of his aunt and uncle, Carollyn Blazevich (Carollyn) and Edward Blazevich (Edward), was usurious because he only received $48,000 of the $50,000 they transferred to him, and the $2,000 difference, when combined with the interest at the "maximum rate allowed by law" provided under the note, exceeded the statutory maximum. Paul thus seeks reversal of the portion of the judgment denying his usury claim and requests the matter be remanded for a new trial on that issue.
We conclude Paul's usury claim is barred by res judicata, and that, in any event, the note was not usurious. Court thus affirm the judgment.

A jury found John Cameron (Cameron) guilty of making a criminal threat (Pen. Code, 422).[1] In a bifurcated hearing, Cameron waived his right to a trial on a strike allegation and admitted the strike. The court dismissed the strike and placed him on three years' probation. Cameron appeals, contending there was insufficient evidence that his statements "convey[ed] . . . a gravity of purpose and an immediate prospect of execution of the threat" and caused the victim "reasonably to be in sustained fear for his . . . own safety." ( 422.) Court affirm.

Edgar J. appeals the judgment terminating his parental rights over his son Christian A. Edgar contends the juvenile court violated his due process rights by failing to provide him notice as required by Welfare and Institutions Code[1]section 316.2, subdivision (b) and California Rules of Court, rule 5.635(g);[2]abused its discretion by denying his section 388 petitions; erred by declining to apply the beneficial relationship exception to termination ( 366.26, subd. (c)(1)(B)(i)); and failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court affirm.