CA Unpub Decisions

Police officers stopped defendant Pedro Mercado, a member of the Townsend Street gang, and found him in possession of over 3 grams of marijuana, 900 milligrams of cocaine base, and 400 milligrams of methamphetamine. Defendant admitted to the officers that he sold the cocaine. He claimed the marijuana and methamphetamine were only for his personal use, but conceded that if someone asked to buy either substance he would sell it as well. On appeal, defendant contends the trial court erred by (1) denying his pretrial motion to suppress evidence ( 1538.5), (2) admitting testimony from a criminal street gang expert, (3) denying his request for probation, (4) imposing a felony sentence on count 4, and (5) failing to stay the sentences imposed on counts 2, 3, and 4. He also challenges the sufficiency of the evidence on the street terrorism charge and criminal street gang allegations. Since all of his claims lack merit, Court affirm.

Petitioner the City of San Jose (City) appeals from a judgment entered in favor of real parties in interest, Sutters Place Inc., dba Bay 101 (Bay 101) and Garden City, Inc. (Garden City) (hereafter collectively the cardrooms), after the trial court sustained the cardrooms demurrers to Citys second amended petitions for writs of administrative mandate without leave to amend. We conclude that the trial court properly sustained the demurrers as the City could not allege a beneficial interest in the petitions and shall affirm.

A jury found appellant to be a sexually violent predator (SVP) under Welfare and Institutions Code section 6600 et. seq. and the trial court committed him to the Department of Mental Health for an indeterminate term. On appeal, he challenges the constitutionality of the statutory commitment scheme on numerous grounds and the retroactive application of the scheme. He further contends that the trial court erred in instructing the jury. Court affirm.

Defendant Herberger was charged with unauthorized use of a vehicle, a felony, and driving with a suspended or revoked license, a misdemeanor. (Veh. Code, 10851, subd. (a), 14601.1, subd. (a).) The superior court granted defendants motion to suppress evidence and dismissed the case pursuant to Penal Code section 1385.[1] The District Attorney appeals the dismissal pursuant to Penal Code section 1238, subdivisions (a)(1) and (a)(8). The People argue that the superior court erred in finding the police officers detention of defendant unlawful, and in suppressing observations made by the police officer before the detention occurred. They also challenge defendants standing to bring a section 1538.5 motion. Court affirm.

Maria M., mother of the two children at issue, has filed a writ petition seeking review of a juvenile court order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26.[1] ( 366.26, subd. (l); Cal. Rules of Court, rules 8.450-8.452.) Mother contends that the court erred in terminating services because the evidence does not support the finding that the Department of Family and Childrens Services (the Department) provided reasonable services. She also contends that the court erred in denying her additional services because the Department failed to show by clear and convincing evidence that she failed to make substantial progress on her case plan. Court disagree with these contentions and, therefore, will deny mothers writ petition.

James George Fischer (Husband) appeals from the trial courts order enforcing a 1998 judgment and marital settlement agreement. He contends the court erred in finding that he was estopped from relying on language in the agreement specifying a date for the calculation of respondent Summer Linda M. Girons (Wife) financial interest in the marital home. Court conclude the court erred and remand for interpretation of the agreement and division of the value of the house.

Robert Berl Bates appeals an order committing him to the Department of Mental Health (DMH) as a sexually violent predator for an indeterminate term. He contends that amendments to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, 6600 et seq.) [1] that became effective in 2006, after the petition was filed, but before the trial, cannot be applied to him because they retroactively change the legal consequences of his predicate criminal acts and mental condition. He further contends that many of the changes to the SVPA made by the 2006 amendments violate his state and federal due process rights, the prohibition of ex post facto laws, equal protection, and the prohibition against cruel and unusual punishment. Defendant finally contends that new restrictions imposed on his right to petition for release violate the federal First Amendment right to petition. Court hold that application of the amended version of the SVPA to a commitment petition filed, but not tried, before the effective date of the amendments is not an impermissible retroactive application of the law, and that the amended version of the SVPA does not violate any of the aforementioned constitutional provisions. Court affirm the judgment.

Defendant Edjuan Chardon Scott appeals from the trial courts order denying his motion to suppress evidence, claiming the trial court erred in finding sufficient grounds for the stop and search of the vehicle he was driving, which led to his arrest, and in overruling defendants Harvey Madden objection. Court affirm the judgment.

Defendant Mario Ernesto Bolanos pleaded guilty to driving under the influence and hit-and-run driving resulting in injury. He was sentenced to five years, the maximum agreed sentence. His retained counsel has filed a declaration stating that he reviewed the record and was unable to identify any issues meriting appellate review. Defendant argues that the court should nonetheless conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 (Wende) for appealable issues. Finding Wende applicable only to defendants represented by court appointed counsel, Court affirm the judgment without conducting an independent review.

Defendant Edith Delgado appeals from a judgment convicting her of three misdemeanor counts of vehicular manslaughter (Pen. Code,[1] 192, subd. (c)(2)). Her appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potentially arguable issues, and requesting this court to undertake a review of the entire record. Defendant was advised that she could file a supplemental brief, which she has not done. Having conducted an independent review of the record, Court find no issue of colorable merit and shall affirm.

Karen F. (Mother) appeals from an order issued at the six-month review hearing of this dependency action, which continued David H.s removal from her home. We affirm the courts finding that returning David to Mothers care on September 24, 2007 was likely to cause David emotional or physical damage. We conclude the finding that the social services agency provided active efforts to prevent the breakup of the Indian family between the July 11 dispositional hearing and the September 24 six month review hearing is not supported by substantial evidence. The order is affirmed.

Shirley W. (Mother) and William C. (Father) appeal the juvenile courts order terminating their parental rights to their children Drake C. and W.C. and freeing the children for adoption pursuant to Welfare and Institutions Code section 366.26.[1] Mother and Father raise the following claims of error: (1) both parents contend that termination of parental rights would be detrimental to Drake and W.C. under former section 366.26, subdivision (c)(1)(E) because it would interfere with their relationships with their teenage half-siblings, Elizabeth G. and Benjamin G., (2) Father claims that the juvenile court erred in evaluating the sibling relationship issue because it erroneously believed it could order Drakes and W.C.s prospective adoptive parents to enter a binding contract requiring postadoption sibling contact, (3) Mother argues that termination of parental rights would be detrimental to Drake and W.C. under former section 366.26, subdivision (c)(1)(A) because Mother has maintained visitation and contact with Drake and W.C. and they would benefit from continuing their relationship with Mother, and (4) Mother contends that the juvenile court should have ordered guardianship instead of adoption as the permanent plan for Drake and W.C. Court affirm.

Appellant Tommy W. was committed to a ranch facility for a period of six months after being adjudged a ward of the court. On appeal, he contends the juvenile court erred by not counting the ranch placement against his maximum term of confinement. The Attorney General concedes the error. Accordingly, we modify the dispositional order to allow credit against the maximum term of confinement for the ranch commitment. In all other respects, the dispositional order is affirmed.

Defendant Fernando Chavez appeals from an order revoking his probation and sentencing him to three years in prison. He contends that the court erred in failing to conduct an inquiry pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) after he complained about his attorneys failure to interview two witnesses and obtain allegedly exculpatory videotapes. Court agree.