CA Unpub Decisions

On April 21, 2005, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, Oscar D., committed misdemeanor battery (Pen. Code, 242). On May 25, 2005, Oscar admitted the allegation and was placed on informal supervision pursuant to Welfare and Institutions Code section 654.2. On November 16, 2005, the juvenile court found that Oscar failed to complete program services. The court continued the case for completion of services. The judgment is affirmed.

Appellant H.P., a minor, admitted an allegation that he committed felony grand theft from a person (Pen. Code, 487, subd. (c)). At the subsequent disposition hearing, the juvenile court adjudged appellant a ward of the court; placed him on probation, with various terms and conditions, including that he [n]ot use or possess narcotics, other controlled substances, related paraphernalia, or poisons, and to stay away from places known by the minor to be frequented by drug users; and ordered him committed to the Elkhorn Correctional Facility boot camp program (boot camp) for a period not to exceed 365 days. On appeal, appellant contends (1) the court abused its discretion in ordering him committed to boot camp instead of a less restrictive alternative, and (2) the drug condition is unreasonable and unconstitutionally overbroad. Court affirm.

Defendant contends the trial court erred in not granting his request to relieve his retained attorney. He also claims there was insufficient evidence to support his conviction. We agree the court erred in ruling on defendants request to relieve his retained counsel from representing him. Court reverse and remand.

Defendant Ernest Alfonso Reed appeals following his convictions for kidnapping and making criminal threats. He challenges the trial courts instruction on the reasonable belief in consent defense to kidnapping and contends that the People failed to prove his 1991 conviction for aggravated assault was a serious felony for purposes of the three strikes law. Court affirm.

After a contested jurisdictional hearing, the juvenile court found that S.F. (appellant) committed a robbery (Pen. Code, 211)[1]and a misdemeanor battery ( 242). Based on this finding, appellant was adjudicated a ward of the juvenile court. (Welf. & Inst. Code, 602.) On appeal, appellant, who was nine years old at the time of the crime, claims the trial court erred in implicitly finding that he was capable of understanding the wrongfulness of his actions. Appellant next challenges the sufficiency of the evidence to support the robbery count, which was based on a theory of aiding and abetting. Lastly, appellant claims he received ineffective assistance of counsel because his attorney failed to move to suppress the victims in field identification as unduly suggestive. Court reject each of these contentions and affirm the juvenile courts findings.

Already burdened with two prior felony convictions that counted as strikes, in January and February 2005, defendant Kelvin Deshawn Ross went on a one-man crime spree in Contra Costa County, resulting in an information charging him with 31 offenses. He was subsequently convicted by a jury of 23 of those offenses: eight counts of second degree robbery (Pen. Code, 212, 212.5[1]), seven of which involved use of a firearm ( 12022.5, 12022.53); two counts of attempted robbery ( 211, 664); nine counts of second degree burglary ( 459-460); and four counts of being a past-convicted felon in possession of a firearm ( 12022.1, subd. (a)(1)). Thereafter, the trial court sustained six enhancement allegations: two serious felony convictions ( 667, subd. (a)(1)), two prior felony convictions for which defendant had served a prison term, ( 667.5, subd. (b)), and two prior felony convictions for kidnapping and robbery that qualified as strikes ( 667, subds. (b)-(i), 1170.12). Defendant presents a single claim of error: The trial court abused its discretion by denying in part defendants motion for leave to present evidence that some other person had in fact committed a limited number of the offenses charged. Court conclude that the trial courts ruling was not an abuse of discretion, and Court affirm.

In this fourth appeal in this dependency proceeding, Cynthia H., the grandmother of minors Athena H. and Israel P., contends the juvenile court violated her due process rights and abused its discretion when it temporarily suspended her visitation with the children. Court affirm.

Yasmin F., a minor, admitted violating her probation and was placed in residential treatment. She contends the court abused its discretion when it ordered her residential placement because the probation department failed to make reasonable efforts to eliminate the need to remove Yasmin from her home and the court failed to consider her particular circumstances. Court find her contentions to be meritless, and affirm.

Defendant and appellant Edward Noble appeals from a judgment entered following a trial on a petition for dissolution and consolidated civil action filed by plaintiff and respondent Darlene Noble.[1] Appellant contends the trial court abused its discretion in making the permanent spousal support award, erred in construing too broadly a stipulation submitted by appellant concerning Darlenes interest in a business and erred in trying the dissolution and civil actions together. The record reveals that the trial court carefully considered the factors outlined in Family Code section 4320 in making the support award, properly construed the unambiguous language of appellants stipulation and properly exercised its discretion in granting appellants request to consolidate the two actions. Accordingly, Court affirm the judgment.

Appellant Cindy Simonian sued her employer, respondent Federal Express Corporation, for discrimination based on sex and sexual orientation, retaliation and constructive discharge. The jury returned a verdict in favor of respondent. On appeal, appellant contends that the trial court erred by: (1) ruling that her sexual orientation claims based on incidents prior to 2001 were time-barred; (2) precluding admission of certain of her exhibits at trial; (3) failing to compel respondent to produce further responses and documents to her document demands; and (4) forcing her to allege a weak constructive discharge claim. Court affirm.

Appellant William Penrock, as administrator for the estate of Corby Michael Prevost, Jr., brought an action against respondent Lugo Land Corporation for the specific performance of a contract of sale of a residence on Crockett Street in Sun Valley, California (hereafter the property). After appellant had presented his case, the trial court granted respondents motion for judgment. Appellant appeals from the resulting judgment. Court affirm.

Appellant Kathleen Gilbert was charged with residential burglary and arson of an inhabited building. She was also charged with three prior criminal convictions for escape from prison (year 2004), petty theft with a prior (2003) and receiving stolen property (2000). She was found guilty by the jury of the charged offenses and the court found the allegations of prior convictions to be true. She was sentenced on the arson count to five years in prison and to an additional three years for the prior offenses; further punishment was stayed. She appeals from the conviction, which Court affirm.

A jury convicted Michael Jimenez (appellant) of first degree murder in violation of Penal Code section 187, subdivision (a).[1] The jury found true the allegations that appellant personally used and intentionally discharged a firearm causing death. ( 12022.53, subds. (b), (c) & (d).)
Appellant appeals on the grounds that: (1) the trial court committed reversible error by instructing the jury that first degree premeditated murder could be committed with implied malice, (2) the trial court prejudicially erred by allowing the prosecutor to argue that a conviction of first degree premeditated murder could be based on express or implied malice, thus presenting the jury with a legally correct and a legally incorrect theory of guilt where it is not possible to determine which theory the jury chose in convicting appellant, and (3) the trial court prejudicially erred by allowing the prosecutor to decline appellants offer to stipulate that the victim died from a gunshot wound to the head.

Kathryn Greenelsh (Greenelsh) appeals an order of the probate court that a demand for arbitration violated a trust's no contest clause.[1] She contends that her arbitration demand is not a contest because it does not pertain to an instrument, would not nullify or alter any provision of the trust, and is permitted by an express provision of the trust requiring arbitration of disputes. She also contends that the no contest clause does not apply to actions alleging trustee misconduct, and that her proceeding is statutorily exempt from the no contest clause because it alleges improper influence in preparing a trust instrument. (Prob. Code, 21307, subd. (b).) Court affirm.