CA Unpub Decisions

Riki and Dwayna Olivier[1]were married on December 11, 1998. Riki filed a petition for dissolution of the marriage on March 21, 2006. After a trial on contested property division issues, the trial court issued a tentative decision, followed by a statement of decision and judgment. Riki appeals, contending the trial court erred in deciding seven different issues. Court will consider the facts relating to each issue separately. Court conclude that various ambiguities and errors in the judgment require reversal and remand for reconsideration of the issues.

Defendant Alberto Ramirez was charged with attempted willful, deliberate and premeditated murder (Pen. Code, 187, subd. (a), 664; count 1), and assault with a firearm ( 245, subd. (a)(2); count 2). The attempted murder count also alleged that defendant personally used a firearm within the meaning of sections 12022.53, subdivision (b), and 12022.53, subdivision (c). In his petition for a writ of habeas corpus, defendant argues that he was denied his right to testify, and that his counsel was ineffective for failing to advise him of his right to testify.
The judgment in case No. E043539 is affirmed. The trial court is directed to correct the abstract of judgment in accordance with this opinion, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

Defendant Charles William Braden and Pamela Bledsoe (Pamela) met in the summer of 2000 and began dating. When defendant started to act strangely by showing up at her house unannounced, Pamela decided to end their relationship. On February 23, 2002, Pamela and her daughter, Tiffany Bledsoe (Tiffany), went to defendants house to retrieve Pamelas belongings. Pamela and defendant got into an argument, and she told him that she did not want to see him again. Defendant went to another room, where Tiffany was packing Pamelas belongings, and shot Tiffany in the hand. Tiffany yelled to Pamela to call the police. Defendant then proceeded to shoot Tiffany at least five times. When Pamela rushed into the room where Tiffany had been shot, defendant told Pamela, Now Ive taken from you what you love the most. Tiffany died as a result of the gunshot wounds. The judgment is affirmed.

A jury found defendant guilty of transporting a controlled substance (Health & Saf. Code, 11352, subd. (a)) and possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)).[1] Defendant admitted that he suffered a prior conviction for violating section 11378 of the Health and Safety Code. (Health & Saf. Code, 11370.2, subd. (a).) The trial court withheld pronouncement of judgment and granted defendant drug court probation, i.e., Proposition 36 probation. At a probation review hearing, defendant admitted that he violated the terms of his Proposition 36 probation. The trial court then sentenced defendant to state prison for a term of seven years. The superior court is directed to modify defendants sentence on count 1 to reflect that the sentence is stayed pursuant to Penal Code section 654. The superior court clerk is directed to correct the abstract of judgment and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

Defendant Juan Francisco Martinez appeals following a jury trial. He argues there is insufficient evidence to prove his guilt of kidnapping in violation of Penal Code section 207. He also contends the trial court failed to instruct the jury on the lesser included offense of attempted kidnapping, thereby prejudicing his defense. The Superior Court of Riverside County is directed to amend the minute order dated February 22, 2007, to indicate that defendant was found not guilty in count 2, violation of section 245, subdivision (a). In all other respects, the judgment is affirmed.

Defendant Jaime Hernandez Torres was found guilty of a forcible lewd and lascivious act on a child under 14 (Pen. Code, 288, subd. (b)(1)) and sentenced to six years in prison.
1. There was insufficient evidence of force to support the conviction.
2. Even assuming there was sufficient evidence of force, there was sufficient evidence of lack of force so as to require the trial court to instruct on the lesser included offense of a nonforcible lewd and lascivious act on a child under 14.
3. The trial court erred by admitting evidence that defendant had committed a prior sexual offense. Court find no prejudicial error. Hence, Court will affirm.

R.C. (the father) appeals from an order terminating his parental rights to his two children. All of his appellate contentions arise out of the denial of a continuance, which the fathers counsel requested on the ground that a social worker he had purportedly subpoenaed had not appeared. That social worker, however, was not the one who had written the report for the hearing; the fathers counsels offer of proof did not indicate that she could give any relevant testimony. In any event, it does not appear that the subpoena was properly served. Accordingly, Court find no error.

This petition involves the trial courts refusal to grant a continuance to B.P. (father) before holding the jurisdictional/dispositional hearing for the minor, J.L., and then ordering that reunification services be denied to father pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10). Court find that father should have been given a short continuance and that, in any event, the evidence does not support the order denying services.

Petitioner S.G. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court rule 8.452 challenging the juvenile courts order terminating reunification services as to her child, J.R. (the child) and setting a Welfare and Institutions Code section 366.26 hearing. Mother argues that 1) she was not provided with reasonable reunification services, and 2) the court erred in finding that there was not a substantial probability the child would be returned to her care within the statutory timeframe. Court deny the writ petition.

Appellant Thomas J. Richardson is an attorney who was ordered by a panel of three arbitrators to refund $40,000 to respondent Enedina Ceja in a dispute over attorney fees. The Mandatory Fee Arbitration Act (MFAA, Bus. & Prof. Code, 6200 et seq.)[1]allows the parties to a fee dispute to agree in writing to be bound by the award of the arbitrators. ( 6204, subd. (a).) If they do not so agree, then either party shall be entitled to a trial after arbitration . (Ibid.) If no action is pending, the trial after arbitration shall be initiated by the commencement of an action in the court having jurisdiction over the amount of money in controversy within 30 days after mailing of notice of the award. ( 6204, subd. (c).) In this case, a proof of service attached to the arbitration award declared that the award was mailed on December 19, 2006 to appellant at his correct address. The address on the actual envelope containing the award, however, omitted the suite number from appellants address and misspelled his last name as Ricardson. Appellant nevertheless received the mailed award, according to his own declaration, not later than on or about Saturday, December 23, 2006. Appellant commenced this action by filing his complaint on January 19, 2007, the 31st day after December 19, 2006. The superior court ruled that appellants complaint was not timely, and granted respondents petition to confirm the arbitration award. The court entered a judgment confirming the award of the arbitrator, and Richardson appeals from that judgment.

A jury convicted defendant Jerry Huy Huynh of being a felon in possession of a firearm and street terrorism. It also found true the allegation he committed the crime for the benefit of or in association with a criminal street gang. The court found he had a prior serious felony conviction. Defendant was sentenced to 12 years in state prison. He appeals, contending the evidence was insufficient to support the true finding on the gang enhancement under Penal Code section 186.22, subdivision (b)(1) (all further statutory references are to this code) and his conviction for street terrorism under section 186.22, subdivision (a). He also asserts the prosecutions gang expert was impermissibly allowed to testify defendant was actively participating in a gang while possessing the firearm and that the instructions on this issue were ambiguous. Court find no error and affirm.

A modification decision.

Plaintiff Patricia Bynum filed a lawsuit against defendant Sylvia Woods, a lawyer who represented plaintiffs daughters husband in a divorce and child custody proceeding. The complaint alleged that defendant assaulted plaintiffs daughter, Monica Meadors-Washington (Meadors), slandered and libeled Meadors, and otherwise acted improperly toward Meadors during the proceeding. The trial court dismissed the lawsuit under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute, concluding that the challenged activities were protected because they occurred in connection with judicial proceedings. Court affirm.

Sean Tramutolo (appellant) appeals from a judgment after he pled no contest to possession for sale of methamphetamine (Health & Saf. Code, 11378) (count 1) and possession of an assault rifle (Pen. Code, 12280, subd. (b)) (count 2), and admitted as to count 1 that he was personally armed with a firearm (Pen. Code, 12022, subd. (c)). He contends the court erred in denying his motion to suppress evidence, because the prosecution failed to meet its burden of proving that the warrantless search of his residence was a valid probation search. Court disagree and affirm.