CA Unpub Decisions

A jury convicted appellant Kyle Ryan Cogburn of one count of committing a lewd or lascivious act upon a child under the age of 14 years (Pen. Code, 288, subd. (a)), with the special allegation that he committed substantial sexual conduct with a victim under the age of 14 years ( 1203.066, subd. (a)(8)). He was sentenced to the lower term of three years in prison.
Cogburn contends the trial court improperly denied his motion to determine whether the six-year-old victim was competent to testify; the trial court should have granted his motion for acquittal because the victims trial testimony was inherently contradictory; and the prosecutor committed misconduct by coaching the victim during a break in her testimony. He also asserts prosecutorial misconduct occurred during closing argument and raises two claims of instructional error. Court affirm the judgment.

A jury found appellant Johnny Gabriel Gutierrez guilty of two counts of assault by means of force likely to cause great bodily injury (Pen. Code,[1] 245, subd. (a)(1)). As to the first count, the jury found true that the assault resulted in great bodily injury to the victim ( 12022.7), and as to both counts the jury found true that the assault was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A) & (C)). In a bifurcated proceeding, appellant waived a jury trial on allegations of prior serious felony convictions for purposes of section 667, subdivision (a) and the three strikes law ( 1170.12). The trial court found the prior conviction allegations to be true. Appellant was sentenced to a total of 27 years in prison, and now appeals, claiming that the gang enhancements were not supported by substantial evidence. For the reasons that follow, Court affirm the judgment and order correction of a clerical error in the abstract of judgment.

Appellant James Martin Sanchez was convicted after jury trial of the following offenses: oral copulation of a child under the age of 14, digital penetration of a child under the age of 14, sexual penetration of a child under the age of 14, assault with intent to commit oral copulation, assault with intent to commit a lewd or lascivious act, assault with intent to commit rape, forcible lewd act upon a child under the age of 14, and false imprisonment. Appellant admitted a prison prior. (Pen. Code, 269, subd. (a)(4); 269, subd. (a)(5); 220; 288, subd. (b)(1); 236; 667.5, subd. (b).) Appellant was sentenced to an aggregate term of 31 years to life imprisonment. Appellant argues that his confrontation and fair trial rights were infringed during trial and that the court erred by imposing a full term consecutive sentence for count 2. None of these arguments are persuasive. Court affirm.

Defendant Joseph Michael Avery was convicted of first degree murder. On appeal, he contends (1) insufficient evidence supported the conviction, (2) the trial court erred by instructing the jury on premeditated and deliberate first degree murder, and (3) the trial court failed to adequately instruct the jury on aiding and abetting principles as they relate to premeditated and deliberate first degree murder and second degree murder. Court affirm.

Defendant Nancy Yang entered a no contest plea to corporal injury to a child and inflicting great bodily injury on a child under the age of five. On appeal, she contends (1) there was an inadequate factual basis to support the great bodily injury enhancement and (2) the enhancement violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) because it was based on facts not admitted by defendant. Court affirm.

A modification decision.

On April 25, 2007, an information was filed charging appellant, Dennis Ybarra, with two counts of first degree burglary (Pen. Code, 459). At the conclusion of a jury trial on August 13, 2007, Ybarra was found guilty of both counts. On September 10, 2007, Ybarra was sentenced to prison for the midterm of four years on count one and to a concurrent term of four years on count two. The court imposed various fines and awarded Ybarra custody credits of 258 days.
Ybarras appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Ybarra was advised he could file his own brief with this court. By letter on March 3, 2008, Court invited Ybarra to submit additional briefing. To date, he has not done so.

Carrie M. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her two young daughters. She contends the court erred by not finding it would be detrimental to the children to terminate parental rights. On review, Court affirm.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court issued at a contested 18-month review hearing at which the juvenile court terminated her reunification services and set a Welfare and Institutions Code section 366.26 hearing as to her sons M. and E. Court deny the petition.

A modification decision.

Taylor Y. was made a dependent of the juvenile court. Her mother, Sheri T., failed to reunify with her, and the juvenile court selected long-term foster care as her permanent plan. At a subsequent six-month status review hearing, the Orange County Social Services Agency recommended a new permanent plan selection hearing to consider adoption as Taylors permanent plan. The mother objected and requested a hearing so she could show a new permanent plan selection hearing was not in Taylors best interests. The juvenile court denied a hearing on Taylors best interests and set a new permanent plan selection hearing. The mother seeks extraordinary relief from these orders. Court deny relief.

This case returns to us following a grant of review and transfer by the California Supreme Court. The high court has directed us to vacate our prior opinion and to reconsider the cause in light of People v. Crandell (2007) 40 Cal.4th 1301 (Crandell). Having done so, Court once again affirm the judgment.

A modification decision.

In this writ proceeding, the mother of a dependent child seeks review of the juvenile courts findings and orders terminating reunification services and setting a permanency planning hearing. Because substantial evidence supports the juvenile courts determinations, Court deny the mothers petition for an extraordinary writ.