CA Unpub Decisions

Defendant Duke Steven Haltom appeals from judgment entered following jury convictions for possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)[1]; count 1); possession, transportation, and possession for sale of methamphetamine (Health & Saf. Code, 11377, subd. (a), 11379, subd. (a), 11378; counts 2, 4, 6); possession, transportation, and possession for sale of heroin (Health & Saf. Code, 11350, subd. (a), 11352, subd. (a), 11351; counts 3, 5, 7); under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a); count 8); and driving under the influence (Veh. Code, 23152, subd. (a); count 9). The jury also found true two prior strike convictions ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and one prior prison term conviction ( 667.5, subd. (b)).
As conceded by the People, defendant is correct that the trial court miscalculated his conduct credits. Defendant is entitled to 406 days of conduct credit, rather than 404 days. ( 4019; In re Marquez (2003) 30 Cal.4th 14, 25-26.) The judgment must thus be amended to state defendant is entitled to 406 days conduct credit, with his total presentence credit amounting to 1,218 days.

R.S. (mother) has appealed from an order of the juvenile court establishing legal guardianship as to her son, S.D. (born in 1997) (the child). Mother contends (1) the Riverside County Department of Public Social Services (the Department) violated her rights by failing to evaluate a maternal aunts request for placement, and the juvenile court erred in failing to consider the relative placement preference under Welfare and Institutions Code section 361.3; (2) the juvenile courts finding that the child had waived his right to be present at the section 366.26 hearing was not supported by substantial evidence; and (3) the juvenile court violated the Indian Child Welfare Act (ICWA) (25 U.S.C., 1900 et seq.) by failing to inquire of mother whether she had any Indian ancestry. The child has joined the position of the Department urging us to affirm the order of the juvenile court. Court find no prejudicial error, and Court affirm.

Colleen F., mother, appeals from an order summarily denying her petition to modify a prior court order (Welf. & Inst. Code,[1] 388), and from the subsequent judgment terminating her parental rights to three children. ( 366.26.) Regarding the modification petition, mother claims she met her burden of demonstrating changed circumstances by providing a recent psychological evaluation showing she had improved, as well as proof she was continuing with substance abuse after care and counseling. Regarding the termination of parental rights, mother argues she visited regularly and the children would have benefitted from continuing their relationship with her. Court disagree.

Defendant pled guilty to being a convicted felon in possession of ammunition. (Pen. Code, 12316, subd. (1).) In return, the court suspended imposition of sentence and placed defendant on probation on various terms and conditions. On appeal, defendant contends his gang-related probation conditions must be stricken as irrelevant or unconstitutionally vague, overbroad, or in violation of his freedom of travel. Court agree that the court erred in imposing the gang registration requirement, and that condition must be stricken.

In this petition for writ relief, Ricardo C. (father) asks us to vacate the juvenile courts orders finding the allegations of the petition true, denying him reunification services, and setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26[1]for his son. He asserts that there was insufficient evidence to support the courts finding that: (1) he was unable to care for the minor because of his past substance abuse; (2) he could not arrange for the minors care in light of the fact that he had several relatives who could provide care during his incarceration; and (3) it would be detrimental to the minor to offer him reunification services. Court disagree with all of these assertions and, accordingly, deny the petition.

In this matter we have reviewed the petition and considered the record. Real party in interest has declined our invitation to file an informal response. 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.

In dividing the family residence, the court applied the Moore/Marsden rule. (In re Marriage of Moore (1980) 28 Cal.3d 366, 371-372; In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 436-440.) Under this rule, the community acquires a pro tanto interest in one spouses separate property when community property is used to reduce the principal balance of the mortgage on that property. (Bono v. Clark(2002) 103 Cal.App.4th 1409, 1421-1422.) Wife argues the trial court erred in applying this rule because Husband transmuted his separate property residence to community property when he executed and recorded a deed from Husband to Husband and Wife as joint tenants. Wife further argues that the court erred in charging her rent for her exclusive use of the residence following separation, terminating spousal support, and failing to order Husband to continue to provide Wifes medical insurance.

A jury convicted appellant, Timothy Floyd Smith, of petty theft (Pen. Code, 484) and assault with a deadly weapon ( 245, subd. (a)(1)). In a separate proceeding, the court found true a serious felony enhancement ( 667, subd. (a)) and allegations that Smith had a prior conviction within the meaning of the three strikes law ( 667, subd. (b)-(i)). On appeal, Smith contends: 1) the court abused its discretion when it denied his Romero motion; and 2) his abstract of judgment contains an error. Court find merit to this latter contention. In all other respects, Court will affirm.

On October 25, 2007, the prosecutor filed a first amended subsequent petition pursuant to Welfare and Institutions Code section 602 alleging appellant, Y.S., feloniously possessed methamphetamine (Health & Saf. Code, 11377, subd. (a), count one), committed misdemeanor battery (Pen. Code, 242, count two),[1]disturbed the peace on a school campus ( 415.5, subd. (a), count three), disturbed the peace using offensive language in public ( 415, subd. (3), count four), and refused to disperse ( 416, count five).[2]
After independent review of the record, Court have concluded no reasonably arguable legal or factual argument exists. The judgment is affirmed.

Appellant Steven Louis Richards stands convicted of multiple felonies, for which he was sentenced initially to 95 years to life in prison. He appealed, in case No. F049341; on appeal, this court reversed the judgment and remanded for further proceedings; and on remand, the trial court reinstated the judgment and imposed a sentence of 85 years to life. The instant appeal followed. Court modify the judgment to correct an error in the award of presentence credits, and affirm the judgment as modified.

Appellant Kenneth Jones, Jr. was charged by a second amended information filed September 6, 2007, with shooting at an occupied motor vehicle (Pen. Code, 246; count 1),[1]assault with a firearm ( 245, subd. (a)(2); count 2), first degree burglary ( 459, 460, subd. (a); count 3), possession of a firearm by a convicted felon ( 12021, subd. (a)(1); count 4), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 5), shooting from a motor vehicle at a person not an occupant of a motor vehicle ( 12034, subd. (c); count 8) and shooting from a vehicle ( 12034, subd. (d); count 9). The second amended information also contained allegations that appellant personally used a firearm ( 12022.5, subd. (a)(1)) in committing the count 2 assault; caused great bodily injury by discharging a firearm ( 12022.53, subd. (d)) in committing each of the count 1, 8 and 9 offenses; and served three separate prison terms for prior felony convictions ( 667.5, subd. (b)).
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d. 436.) Appellant has not responded to this courts invitation to submit additional briefing. Court affirm.

Defendant Rogelio Luna appeals from a judgment entered after a jury found him guilty of two counts of attempted second degree robbery, two counts of assault with a firearm, and one count of conspiracy to commit robbery. The jury also found defendant personally used a firearm in the commission of those offenses. Court affirm. First, defendant failed to make an adequate record that enables us to review whether the trial courts ruling with regard to the admissibility of defendants gang associations to impeach his character witnesses testimony constituted an abuse of discretion.

Plaintiff, attorney Gail Harper, sued defendants, attorneys Jamie Harmon and Meredith Fahn, for malicious prosecution. In the underlying action, defendants had successfully petitioned for a writ of habeas corpus on behalf of Vu Dai Nguyen by arguing that plaintiff had ineffectively represented Nguyen on appeal from a criminal conviction In this action, defendants filed special motions to strike under Code of Civil Procedure section 425.16,[2] commonly known as the anti SLAPP statute. The trial court granted the motions and dismissed the action. Plaintiff appeals. Court affirm the judgment.

Darrell Johnson appeals following his conviction by a jury of one count of forcible rape (Pen. Code, 261, subd. (a)(2))[1], and four counts of forcible oral copulation (288a, subd. (c)(2)) against victim R. Doe.[2] He contends the trial court erred: (1) in admitting evidence of appellants prior sexual offense pursuant to Evidence Code sections 1108 and 1101; (2) in admitting the tape of R. Does 911 call to police as a spontaneous statement; (3) in permitting the use of a victim support person during R. Does testimony; (4) in admitting evidence of rape trauma syndrome. He further claims that cumulative error requires reversal. Court shall affirm the judgment.