CA Unpub Decisions

A jury found defendant John David Terry guilty of assault with a firearm and carjacking, finding defendant personally used a firearm during the commission of both offenses and personally inflicted great bodily injury during the commission of the assault. The court sentenced him to an aggregate term of 23 years in state prison. Defendant appeals, contending the trial courts failure to instruct the jury sua sponte on the defense of accident and the related burdens of proof was reversible error as to the assault conviction. In the alternative, defendant contends his trial counsel was ineffective in failing to request the appropriate instructions pertaining to the accident defense. Court affirm the judgment.

Appellant, the mother of Jesse N. (the minor), appeals from juvenile court orders entered at a postpermanency planning review hearing, at which the court denied appellants request for reunification services and ordered the minor placed with his paternal aunt and uncle with a goal of legal guardianship. (Welf. & Inst. Code, 366.3, 395.) Appellant claims the court abused its discretion by declining to order reunification services for her. Disagreeing with this claim, Court affirm.

Agustin Hirugami appeals a judgment entered on his plea of guilt to selling methamphetamine and possession of methamphetamine for sale. He contends that the superior court erred in denying his pretrial motion to suppress the evidence of drugs found in his home because (1) the premises from which the methamphetamine was seized were not described with particularity in the warrant pursuant to which the search occurred and those premises were not included in the warrant's description of the property to be searched; and (2) once the agents discovered that the property had more than one living unit, they were required to seek court authorization before searching the portion of the premises where he lived. Court find his arguments unavailing and affirm the judgment.

A modification decision.

Robert Lipkowitz, acting in propria persona, appeals from a summary judgment in his fraud action against his former employer, Rite Aid Corporation (Rite Aid). He contends the trial court erroneously granted the motion because a triable issue of fact existed as to the falsity of certain statements. Court disagree and affirm the judgment.

Paul Flacco was convicted by a judge of assault by means likely to produce great bodily injury, and true findings were made that he personally inflicted great bodily injury and personally used a deadly weapon (Pen. Code,[1] 245, subd. (a)(1), 12022.7, subd. (a), 1192.7, subd. (c)(11)). He was also convicted of battery with serious bodily injury, and a true finding was made that he personally used a deadly weapon ( 243, subd. (d), 12022, subd. (b)(1)). The court suspended imposition of sentence and placed Flacco on probation. However, after Flacco's third probation violation, the court sentenced Flacco to prison for six years: three years for the aggravated assault and three years for the personal infliction of great bodily injury enhancement. All other counts and allegations were stayed pursuant to section 654.

A jury found appellant and defendant Craig Green guilty of deterring or preventing an officer from performing his duties (Pen. Code,[1] 69, count 1) and transportation of marijuana (Health & Saf. Code, 11360, subd. (a), count 2). The trial court found true the allegations defendant had one prior strike conviction ( 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and that he had served two prior prison terms ( 667.5, subd. (b)). The court sentenced defendant to a total term of four years eight months in state prison.
On appeal, defendant contends that the court 1) improperly instructed the jury regarding the offense of preventing an officer from performing his duties ( 69), and 2) erroneously imposed two prison prior enhancements, even though defendant only served one prior prison term. The People concede, and we agree, that defendants sentence should be adjusted to reflect that he served only one prior prison term. Otherwise, Court affirm.

A jury convicted defendant of lewd and lascivious behavior with a minor (count 1Pen. Code, 288, subd. (a))[1]and statutory rape (count 2 261.5, subd. (d)). The trial court sentenced defendant to six years imprisonment. On appeal, defendant contends the court abused its discretion in refusing to grant defendant probation. We find that the trial court mistakenly believed defendant was presumptively ineligible for probation when it sentenced him; therefore, the court was under a miscomprehension regarding its discretion to impose probation. Thus, the matter must be and is remanded so that the trial court may exercise its discretion in full cognizance of its sentencing power. The judgment is affirmed.

Pursuant to a plea agreement, defendant Ricardo Gerard Rivera pled guilty to petty theft with a prior conviction. (Pen. Code, 666.) Defendant admitted he had one prior strike conviction. ( 667, subds. (b)-(i), 1170.12.) The trial court sentenced him to a total term of four years in state prison. On appeal, defendant contends that his conviction should be reversed because the trial court failed to establish an adequate factual basis for the plea. Court affirm.

Defendant and appellant Eric David Pagdilao pled guilty to one count of corporal injury to a spouse (Pen. Code, 273.5, subd. (a))[1]pursuant to a plea agreement. In exchange, a trial court sentenced him to three years in state prison but suspended the sentence and placed him on probation for a period of 36 months. Subsequently, the court found defendant in violation of several of his probation conditions and imposed the previously suspended sentence. Defendant now claims the court abused its discretion in finding that he violated probation because its conclusions were based on unreliable and untrustworthy information. Court affirm.

Defendant Richard Enrique Soriano pled guilty to possession of marijuana for sale (Health & Saf. Code, 11359) pursuant to a plea agreement, and a trial court sentenced him to the midterm of two years in state prison. At the time of the plea and sentence, defense counsel informed the court that defendant intended to bring a motion for return of his property that the police seized (the motion), and that defendant would waive his appearance at that hearing. Defense counsel subsequently brought the motion, and the court denied it. On appeal, defendant argues that the court improperly denied the motion. The People correctly concede. Court reverse.

Amanda F. Benedict, under appointment by the Court of Appeal, for Minor. Appellant Sandra J. (mother) appeals from a Welfare and Institutions Code[1]section 366.26 order terminating parental rights to her son, M.J. (the child). On appeal, mother argues that the juvenile court erred in denying her an evidentiary hearing on a section 388 petition. We affirm.[2]
In addition to the appeal, mother filed a petition for writ of habeas corpus. In the petition, mother claims that her trial counsel was ineffective. We requested and received from the Riverside County Department of Public Social Services (the department) an informal letter response addressing whether an order to show cause should issue. Mother filed a reply to the informal response. Court conclude that mother has failed to state a prima facie case for relief and deny the petition.

Appellant Dallas P. (mother) is the mother of Markey and Michael (the children). Mothers parental rights as to the children were terminated. On appeal, she claims that the beneficial relationship exception applied (former 366.26, subd. (c)(1)(A)[2]). Court affirm.

Regina B. (mother) appeals from the termination of her parental rights under Welfare and Institutions Code[1]section 366.26 as to her children Sonya M. (born in 2001), Maria N. (born in 2003), and Mario N., Jr. (born in October 2004). Mother contends substantial evidence supported finding an exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). Counsel for minors has joined the position of the San Bernardino County Department of Public Social Services (Department) urging us to affirm the orders of the juvenile court. Court find no error, and Court affirm.