CA Unpub Decisions

Defendant Crispin Martinez appeals from a judgment of conviction entered after a jury found him guilty of the first degree murder of Rufina Platas (Pen. Code, 187, subd. (a), 189) by means of lying in wait (id., 190.2, subd. (a)(15)) and found true the allegation defendant personally used a deadly and dangerous weapon, a knife, in the commission of the crime (id., 12022, subd. (b)(1)). The trial court sentenced defendant to state prison for life without the possibility of parole plus one year for the use of a weapon.
On appeal, defendant claims evidentiary error, prosecutorial misconduct, insufficient evidence to support the lying-in-wait special circumstance, and sentencing error. The People concede sentencing error, and we modify the judgment accordingly. We reject defendants other claims of error and affirm the judgment as modified.

Ruben Velasquez appeals from the judgment entered following a jury trial in which he was convicted of gross vehicular manslaughter while intoxicated (Pen. Code, 191.5) and driving with a blood alcohol of 0.08 percent or more causing injury (Veh. Code, 23153, subd. (b)). In a bifurcated court trial, defendant was found to have suffered two prior felony convictions (one of which was ultimately dismissed in furtherance of justice). Defendant was sentenced to a total term of 17 years to life. He contends that the trial court erred in denying his request to instruct the jury on vehicular manslaughter without intoxication. Court affirm.

Homero Garcia Gomez appeals from a judgment following his conviction, after a jury trial, of second degree burglary, receiving stolen property, and resisting and obstructing a peace officer. (Pen. Code, 459, 496, subd. (a)); 148, subd. (a)(1).)[1] The court found that the prior serious felony conviction and four prior prison term allegations were true ( 667, subds. (d)(1) & (e)(1); 1170.12, subds. (b)(1) & (c)(1); 1192.7, subd. (c); 667.5, subd. (b)), denied appellant's motion to strike his prior serious felony conviction, and sentenced him to eight years in prison.[2] Appellant contends that the court erred in denying his motions to substitute appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and his motion to strike his prior serious felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Court affirm.

Eloy C. (father), father of 18-month-old N.C, appeals from an order of the juvenile court terminating his parental rights. Father argues that his statutory and constitutional due process rights were violated because he was not properly served with a notice of the hearing to terminate his parental rights. Court affirm.

Detra P. (mother) appeals from the orders denying her petition for reunification services under Welfare and Institutions Code section 388[1]and terminating parental rights to Jada H. under section 366.26. Mother contends the denial of the section 388 petition was an abuse of discretion because she established that circumstances had changed and Jada would benefit from mothers receipt of reunification services. As substantial evidence supports the dependency courts finding that circumstances had not changed and reunification services were not in Jadas best interest, the dependency court did not abuse its discretion. Accordingly, Court affirm.

A jury convicted defendant Robert Lee Crisler of first degree murder and found charged gang and weapon enhancements to be true. (Pen. Code, 187, subd. (a); 12022.53, subd. (d); 186.22, subd. (b)(1), (f); 190.2, subd. (a)(22); Welf & Inst. Code, 707, subd. (d); unspecified statutory references that follow are to the Penal Code.) Sentenced to a prison term of life without possibility of parole plus a consecutive sentence of 25 years to life, defendant raises various claims of instructional error. None of these contentions has merit, and Court therefore affirm the judgment.

A jury found defendant Blake Meline guilty of evading an officer and made a finding that the crime involved the threat of great bodily harm. The court placed him on probation. On appeal, defendant contends: (1) the trial court improperly delegated to a probation officer the authority to order him to enter a residential substance abuse program; and (2) the jury finding was unauthorized and must be stricken. Court agree that the trial court improperly delegated authority to a probation officer and will therefore strike special probation condition No. 20, but Court not strike the jury finding because defendant has suffered no prejudice as a result.

Defendant Lawrence Duane Huber pled no contest to a charge he fondled his 10-year-old daughters breasts. Initially granted probation and ordered to participate in sex offender therapy, defendant was ultimately sentenced to prison for the midterm of six years and ordered to pay various fines and fees. As the substantive facts of defendants offense are not relevant to the issues posed on appeal, Court recite only those facts relevant to defendants contentions under their respective Discussion headings, post.

Celeste W., mother of dependent minor Yvonne W., appeals a juvenile court order, made at an 18 month review hearing, continuing Yvonne's placement in foster care and ordering Yvonne's permanent plan to be another permanent planned living arrangement (APPLA). Celeste challenges the sufficiency of the evidence to support the court's finding that it would be detrimental to Yvonne to return her to Celeste's custody under Welfare and Institutions Code section 366.22, subdivision (a). Celeste also contends that she was not offered or provided reasonable services. Court conclude that the evidence was insufficient to support the court's finding that returning Yvonne to Celeste's custody would create a substantial risk of detriment to Yvonne. Accordingly, Court reverse the order.

In this family law case, the trial court awarded the family home to the wife at a value ascribed to it by the court nearly three years earlier. Asking us to vacate that order, the husband contends the trial court erred in refusing to revalue the property at the time of its award, in accordance with Family Code section 2552, particularly because the substantial increase in the value of the house was due to market conditions. Court agree with the husband and grant the relief requested.

Pursuant to a plea bargain, defendant pled guilty to one count of burglary. (Pen. Code, 459.)[1] Defendant admitted suffering a prior strike conviction. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The court sentenced defendant to state prison for a term of six years, but stayed execution of the sentence pursuant to a Vargas waiver,[2]which will be explained post. Defendant failed to appear for sentencing. On June 8, 2007, the court executed the six-year sentence. Defendant contends (1) the court erred by not granting him the custody credits negotiated as part of his plea bargain; and (2) the trial court violated defendants rights to due process by (a) not notifying defendant that he allegedly violated the terms of the Vargas waiver, and (b) not specifying a reason why defendant was found in violation of the Vargas waiver. Defendant did not obtain a certificate of probable cause. ( 1237.5; Cal. Rules of Court, rule 8.304(b).) As to defendants first contention, we affirm the judgment. As to defendants second contention, we dismiss for failure to obtain a certificate of probable cause. As to the portion of defendants appeal related to custody credits, the judgment is affirmed.

On May 15, 2007, a jury convicted defendant and appellant Scott Thomas King of 13 counts involving (1) commercial burglaries (Pen. Code, 459),[1](2) forgeries ( 470, subd. (d)), (3) invalid use of access cards ( 484g),[2](4) possession of forged documents ( 475, subd. (a)),[3](5) identity theft ( 530.5, subd. (a)), (6) possession of stolen property ( 496, subd. (a)), (7) possession of a gun ( 12020, subd. (a)(1)), and (8) possession of an illegal firearm ( 12021, subd. (a)(1)).
On appeal, defendant contends that his felony convictions in counts 7 and 11 under section 484g, invalid use of access cards, must be fixed as misdemeanors because the jury failed to specify that the value of the property obtained constituted grand theft. For the reasons set forth below, Court affirm the judgment.

A.A. (mother) appeals from a Welfare and Institutions[1]Code section 366.26 order terminating parental rights to her children Leanna L., L.L., and A.M.A. (the children). Mother claims that the San Bernardino Department of Childrens Services (the department) failed to properly give notice to Native American tribes in compliance with the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) Court agree with mothers claim that the department failed to give the tribes adequate information regarding the paternal grandmother. Therefore, Court conditionally vacate the judgment and remand the matter to the juvenile court with directions to order compliance with the ICWA notice provisions.[

Defendant, represented by counsel, pled guilty to burglary (Pen. Code, 459)[1]and admitted that he had sustained a prior strike conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); in return, the remaining allegations were dismissed, and defendant was promised a stipulated prison term of four years in state prison. Immediately thereafter, defendant was sentenced in accordance with the plea agreement. Defendant appeals from the judgment, challenging the validity of the plea agreement and the representation he received.