CA Unpub Decisions

Defendant and appellant David Scott Tompkins, Jr., seeks reversal of a jury conviction, because he claims the trial court erroneously denied his pretrial motion to exclude statements obtained by police interrogation in violation of his constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also claims ineffective assistance of counsel because his trial attorney did not renew the motion to exclude his incriminating statements during trial when there was testimony suggesting he was handcuffed when questioned.

Defendants Pashtoon Subat and Nahid Subat (defendants) appeal from an award of summary judgment founded on deemed admissions. Defendants also appeal an order denying defendants motion to withdraw deemed admissions and motions for reconsideration. Court reverse, concluding the trial court abused its discretion in denying defendants relief from deemed admissions. In turn, summary judgment must be reversed because it is founded on the deemed admissions which should have been withdrawn.

Sandra A. (mother) appeals from a judgment terminating her parental rights to two of four children, removed from her custody by the Department of Public Social Services (DPSS) within one week of their entry into California from Arizona. Mother claims the judgment is void because the juvenile court lacked jurisdiction over the family, because Arizona is their home state within the meaning of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Court agree.

Mother and father appeal separately from dependency orders entered at the jurisdictional and dispositional hearings. Both parents argue there was not substantial evidence of risk or serious physical harm establishing jurisdiction and justifying removal of the minor child, Jacob A. They also contend reasonable efforts were not made to prevent Jacobs removal at the dispositional hearing. Court acknowledge a close question is presented, particularly on the issue of removal at the dispositional hearing, but we conclude that the whole record supports the dependency courts determinations.

An information charged Alejandro Cesar Mendoza with one count of murder under Penal Code[1]section 187, one count of attempted murder under sections 664 and 187, and three counts of making a criminal threat under section 422. Pursuant to a negotiated plea agreement, defendant pled guilty to one count of voluntary manslaughter under section 192, subdivision (a), and admitted that he personally used a firearm under section 12022.5, subdivision (a).[2] Defendant was sentenced to the midterm of six years for voluntary manslaughter, plus the midterm of four years on the section 12022.5, subdivision (a) enhancement, for a total sentence of 10 years. In addition, a restitution fine under section 1202.4 and a parole revocation fine under section 1202.45 were imposed in the sum of $800 each.
At the time of the sentencing, defendant objected to the imposition of the victim restitution fine on the ground that it had not been part of the plea agreement. It was agreed that the award of victim restitution would be deferred to a later hearing. At the victim restitution hearing, the trial court ordered restitution in the requested amount of $50,746.11. Defendant filed a timely notice of appeal.

Father appeals from a juvenile court order terminating parental rights pursuant to Welfare and Institutions Code section 366.26.[1] Father contends the juvenile courts denial of reunification services was not supported by substantial evidence and denial of a continuance of the section 366.26 hearing (.26 hearing) was an abuse of discretion. Court conclude there was sufficient evidence supporting termination of fathers reunification services and no abuse of discretion in denying his request for a continuance of the .26 hearing. Court also reject D.E.s contentions and affirm the judgment.

A complaint filed on January 23, 2007, charged defendant and appellant Sandra Gail Alford with first degree burglary under Penal Code section 459. On April 6, 2007, the trial court suspended proceedings and ordered a competency examination under sections 1368 and 1369. On May 23, 2007, the trial court found defendant incompetent to proceed. On July 11, 2007, the trial court ordered defendant placed in Patton State Hospital until competency was restored. The judgment is affirmed.

Petitioner M.A., mother of K.A. and L.A. (three year old twins), petitions to vacate an order setting a hearing for the selection and implementation of a permanent plan for the children at a 12-month review hearing. (Welf. & Inst. Code, 366.21, subd. (f).[1]) Mother contends the juvenile court abused its discretion in refusing to extend reunification services for an additional six months and that there was insufficient evidence to support the trial courts finding that there was not a substantial probability the children could be returned to her custody within the next six months. Court deny the petition.

This matter comes before this court on remand from the California Supreme Court after reversal of our previous decision. (EbbettsPassForest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936, 958 (EbbettsPass).) Respondents opposition notwithstanding, we conclude that this court is responsible for addressing the issues that were raised in appellants 2003 opening briefing with this court but were not resolved in our 2006 decision or in the California Supreme Courts decision. After considering those issues, we conclude that appellants have not demonstrated reversible error. Accordingly, Court affirm the judgment of the superior court.

On July 21, 2006, Horatio, Vidal and Abraham Guzman were driving home from work. While their vehicle was stopped at a red light, a white Ford Explorer pulled up next to it. The Explorer contained two people who were subsequently identified as appellant Jose Gregorio Castaneda and codefendant Guadalupe Sanchez, Jr. One of the Explorers occupants pointed a shotgun out of a window and fired a blast into the Guzmans vehicle, injuring Horatio and Vidal. Appellant argues that the trial court infringed his federal constitutional compulsory process right by excluding Sanchez as a defense witness. Also, he argues that the trial court abused its discretion and constitutionally erred by permitting a gang expert to testify about hearsay statements Sanchez made to the expert as one of the bases for the experts opinion that the drive-by shooting was gang-related. Furthermore, appellant argues that the section 12022.53, subdivision (d) enhancement attached to count 3 is not supported by substantial evidence and that the section 12022.7, subdivision (a) enhancements attached to counts 1 and 2 should have been stricken. None of appellants arguments are convincing. Respondent correctly points out two clerical errors in the abstract of judgment. Court affirm and order preparation of a corrected abstract of judgment.

Appellant Daniel Eivaz and his brother were detained in a Costco store as employees watched them slash open packages, remove the contents, and discard the empty packages throughout the store. Appellant was convicted of count I, second degree burglary (Pen. Code,[1] 459), count II, conspiracy to commit theft with seven overt acts ( 182, subd. (a)(1), 484) and count III, petty theft with a prior theft-related conviction ( 666, 484), and he pleaded no contest to count V, misdemeanor possession of a tear gas weapon ( 12403.7, subd. (a)), and received the second strike term of four years. On appeal, he contends there is insufficient evidence of the specific intent required for counts I, II and III, that the prosecution improperly admitted evidence of his silence after he was detained by store employees, and the court should have granted his request for instructions on attempted theft as lesser included offenses of counts I, II and III. Court affirm.

Appellant Phillip Morreo was convicted, following a jury trial, of two counts of possessing a device, contrivance, instrument, or paraphernalia intended to be used for the unlawful injection and consumption of controlled substances while in prison (Pen. Code,[1] 4573.6; counts 1 & 2). The jury also found true an allegation that appellant had suffered a prior conviction of a serious or violent felony ( 667, subds. (b)-(j); 1170.12, subds. (a)-(d)). The trial court sentenced appellant to six years on count 1, plus two years on count 2, for an aggregate prison term of eight years, to be served consecutively to the term he was already serving. On appeal, appellant contends one of his convictions cannot stand because the two counts constitute a single offense. Court agree with appellant and will reverse his conviction on count 2.

The defendant negligently serviced the plaintiffs cherry orchard, causing the plaintiffs to tear out 29 acres of trees. The plaintiffs sued, alleging their damages included lost profits and the costs of removing and replacing the trees.
Accordingly, the judgment will be affirmed.

Appellant Lisa Jane Ramey was convicted of count I, gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)); count II, vehicular manslaughter with gross negligence (Pen. Code, 192, subd. (c)(1)); and count III, leaving the scene of an accident (Veh. Code, 20001, subd. (a)), with enhancements as to counts I and II for leaving the scene of the accident (Veh. Code, 20001, subd. (c)), and was sentenced to nine years in state prison. She has filed a timely notice of appeal. Appellant contends the court should have admitted her hearsay statements and improperly modified the causation instruction. The parties agree count II must be reversed as a lesser included offense of count I and that a restitution order must be stricken. Court will modify the abstract pursuant to the parties agreement and otherwise affirm.