CA Unpub Decisions

Miguel Amador Huerta appeals from the trial courts denial of his petition for writ of error coram nobis,which was based on newly discovered evidence. Because the petition fails to state a prima facie case for relief, Court dismiss the appeal.

Appellant 4975 Sandyland Road Association, Inc. (the corporation), challenges a trial court order deeming respondents Eli and Karen Gichon (the Gichons) prevailing parties entitled to costs pursuant to Code of Civil Procedure section 1032, subdivision (a)(4). Court affirm.

Petitioner S.C. was the legal guardian of T.P., born October 1994. After a lengthy jurisdiction hearing with much conflicting evidence, the juvenile court found T.P. was a child described by section 300, subdivision (b), of the Welfare and Institutions Code and terminated the guardianship.[1] The courts ruling was based upon its finding that petitioner had (1) failed adequately to supervise T.P., and (2) allowed an unrelated foster child with an interest in pornography unlimited access to a home computer. Petitioner challenges the ruling under section 300, subdivision (b), claiming there is no substantial evidence to support it. Court disagree and deny the petition.

Petitioners Jose G. and Rocio E. seek extraordinary relief (Welf. & Inst. Code, 366.26, subd. (l);[1]Cal. Rules of Court, rule 8.452) from the juvenile courts order setting a hearing pursuant to section 366.26 to consider termination of parental rights and implementation of permanent plans for their nine year old son Jo. G. and their two daughters, four year old E. G. and three year old Ja. G. Court deny the petitions on the merits.

In case No. 05-7620, a jury convicted defendant Albert Felix Martinez of possession of marijuana for sale (Health & Saf. Code, 11359), but acquitted him of transportation of marijuana (Health & Saf. Code, 11360, subd. (a)).
Sentenced to state prison, defendant appeals, contending the trial court prejudicially erred (1) in admitting evidence of defendants 2002 statements obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) and (2) in instructing the jury in the language of CALCRIM No. 360. Court affirm the judgment.

Defendant Victor Manuel Perez appeals from the sentence imposed following his conviction for grand theft by embezzlement. (Pen. Code, 487, subd. (b)(3).) He contends the trial court failed to exercise its discretion in denying defendants request to reduce his offense to a misdemeanor under section 17, subdivision (b). Finding no error, Court affirm.

Defendant John Thomas Shone entered a negotiated plea of no contest to corporal injury to a spouse (Pen. Code, 273.5, subd. (a) count I), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1) count III), criminal threats ( 422 count V) and wiretapping ( 631, subd. (a) count XII) in exchange for a state prison sentencing lid of six years four months and dismissal of the remaining eight counts and a firearm use allegation.
Defendant appeals. The trial court granted defendants request for a certificate of probable cause. ( 1237.5.) Defendant contends (1) the trial court abused its discretion in denying his motion to withdraw his plea or counsel rendered ineffective assistance; (2) the trial courts determination that section 654 did not bar separate punishment contravened Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]; and (3) the trial court erroneously imposed a criminal protective order. Court strike the no contact order but otherwise affirm the judgment.

When plaintiffs Jere Costello, John Costello, and Mike Costello learned that they would not be receiving an inheritance they had expected from their deceased father, they filed suit against their stepmother Mary Costello, The Preferred Land Company, and James Little, a real estate broker. They asserted that their father and stepmother had agreed that certain property would be left to plaintiffs, and their second amended complaint set forth eight causes of action centering on the alleged violation of this agreement. The trial court sustained defendants demurrer without leave to amend, dismissed the complaint, and entered judgment in favor of defendants.
On appeal, plaintiffs challenge the courts ruling on only three of their causes of action. They contend that their complaint stated actionable claims for (1) breach of contract under a third party beneficiary theory, (2) false promise, and (3) concealment. Alternatively, they argue that the trial court erred in refusing to permit them to amend their complaint a fourth time. None of these claims has merit, and Court therefore affirm the judgment.

Tiffany C., a minor, appeals from an order of the juvenile court declaring her a ward of the court and committing her to juvenile hall for 45 days, requiring 300 hours of community service, and payment of restitution following a finding that she committed the offenses of vehicular homicide with gross negligence (Pen. Code, 192, subd. (c)(1)) and misdemeanor reckless driving with injury (Veh. Code, 23104, subd. (a)). On appeal, the minor contends the evidence is insufficient to support the finding of either offense. Court disagree and shall affirm the orders of the juvenile court.

Defendant Brian Douglas Reed entered a negotiated plea of guilty to identity theft (Pen. Code, 530.5, subd. (a) count 1) and possession of a completed check with intent to defraud ( 475, subd. (a) count 3) in exchange for the dismissal of the remaining counts and a stipulated state prison sentence of three years.
Defendant contends the trial court imposed punishment greater than that agreed upon in that the court imposed fees and fines. He argues he is entitled to withdraw his plea. He claims the issue is not forfeited by his failure to object in that the trial court did not orally admonish him pursuant to section 1192.5. In the alternative, he claims counsel rendered ineffective assistance by failing to object to the fees and fines. In his reply brief, responding to the Attorney Generals argument that the appeal should be dismissed because defendant is challenging the validity of the plea and he failed to obtain a certificate of probable cause, defendant denies that he is attacking the validity of the plea since he never agreed to the fees and fines. The Attorney General argues in the alternative that defendants complaints are wholly without merit because the fines are mandatory.

Andre Moore challenges the sentence imposed on him following his convictions for transportation, sale and possession of cocaine base (Health & Saf. Code, 11352, subd. (a), 11351.5) arising out of three separate transactions, his possession of a firearm during one of the transactions (Pen. Code, 12022, subd. (c)),[1]and his admission of (a) four prior prison terms ( 667.5, subd. (b), 668), (b) two prior strikes ( 667, subds. (b)-(i), 1170.12), and (c) the fact that he was on bail at the time of the offenses ( 12022.1, subd. (b)). After striking one of Moore's prior strikes, the trial court initially sentenced Moore to prison for 41 years four months, imposing the middle term on all of the counts. Approximately two weeks later, an error in the calculation of the sentence came to the attention of the trial court. The trial court recalled the sentence and resentenced Moore to prison for 30 years four months. Upon resentencing, the trial court imposed an upper term sentence with respect to the principal term (i.e., count 2, for violation of Health & Saf. Code, 11352, subd. (a)) and the accompanying firearm enhancement. As Court explain, Court conclude that Moore's final point has merit. Moore's Sixth Amendment right to a jury trial was violated when the trial court sentenced him to the upper term on the firearm enhancement based on facts not found by a jury beyond a reasonable doubt. Accordingly, Court vacate Moore's sentence and remand for resentencing.

Ann V. appeals the denial of her post-dispositional Welfare and Institutions Code section 388 petition. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny her requests to review the record for error and to address her Anders issue. (Anders v. California (1967) 386 U.S. 738.)

Following a court trial, defendant was found guilty of petty theft with a prior (Pen. Code, 666)[1]and not guilty of burglary ( 459). Prior to trial, defendant admitted that he had previously been convicted of four petty theft crimes. Defendant was sentenced to a total term of two years in state prison. Defendants sole contention on appeal is that the trial court committed reversible error in denying his motion to represent himself. Court reject this contention and affirm the judgment.

Jose Antonio Mendoza appeals from a judgment imposing a middle term of two years in state prison. He contends that the trial court abused its discretion in imposing the middle term because the probation report erred in concluding that the mitigating and aggravating factors are in rough balance. For the following reasons, Court affirm.