CA Unpub Decisions

A jury convicted defendant Samuel Joseph Padgett of second degree burglary of a vehicle (Pen. Code, 459; unspecified section references that follow are to the Penal Code), and the trial court found charged prior convictions to be true. ( 667.5, subd. (b).) Sentenced to an aggregate prison term of eight years for this offense plus a consecutive term of 16 months in an unrelated case, defendant appeals. He contends that (1) the delay in arraignment violated his right to speedy trial, (2) the court erred in admitting hearsay evidence, and (3) insufficient evidence supports his conviction. None of these claims has merit and Court affirm the judgment.

Defendant Daniel Evan Nelson pleaded no contest to committing a lewd or lascivious act on a child (Pen. Code, 288, subd. (a)). On appeal, he contends the trial court imposed the upper term based on facts not submitted to a jury in violation of his Sixth and Fourteenth Amendment rights (Cunningham v. California (2007) 549 U.S.[166 L.Ed.2d 856] (Cunningham)). Court shall affirm the judgment.

As part of the environmental review for a redevelopment project in downtown Fresno, pursuant to the California Environmental Quality Act (Pub. Resources Code, 21000 et seq. (CEQA);[1]Cal. Code Regs., tit. 14, 15000 et seq. (CEQA Guidelines)), appellants Redevelopment Agency of the City of Fresno (RDA) and real party in interest City of Fresno (the City) conducted environmental review and adopted a mitigated negative declaration (MND) regarding site clearance, acquisition, and transfer of land, which included as a mitigation measure the relocation of five historic homes from their site in Old Armenian Town (OAT) to a specific site (the fire station site). The MND reflected that this mitigation measure would require the project developer (real party in interest Old Armenian Town, LLC) to modify its plan to build a parking garage on the fire station site. The developer did not modify its plan. The City later certified an environmental impact report (EIR) which treated the prior mitigation measure as a mere suggestion, determined the fire station site was not feasible due to the developers plan to build a parking garage there, and designated a different site as the final receiver site (FRS) for the historic homes. The judgment is affirmed.

The standard California residential purchase agreement bars attorney fees for a party who commences litigation without first attempting to mediate the dispute. Plaintiff Jay Lange filed his complaint before seeking mediation but, after plaintiff prevailed at trial, the trial court nonetheless awarded him attorney fees. We agree with other courts that the agreement means what it says: plaintiffs failure to seek mediation precludes an award of attorney fees. Court therefore reverse the order.

Marilyn T., mother of the minors, appeals from orders of the juvenile court issuing a restraining order against her and denying her Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)). Court affirm the orders.

Committed to the State Department of Mental Health (the department) for an indeterminate term as a sexually violent predator (SVP), defendant Benjamin Joseph Shepherd appeals. He contends the recent amendments to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, 6600 et seq.) that provide for indeterminate commitments violate constitutional principles of due process and equal protection. Court disagree and affirm the judgment.

In June 2006 in case No. 06F5110, a California Highway Patrol officer made a consensual contact with defendant Doyle Ray Woods and a female who were seated in a parked car. Defendant was wide-eyed and sweating profusely for no apparent reason. The officer noticed an open beer bottle in the center console and observed suspected methamphetamine on the seat next to defendant. As defendant stepped out of the car upon request, he threw a bundle of plastic-wrapped cash onto the dashboard. A search of the car revealed two grams of methamphetamine, a digital gram scale, a small notebook with pay/owe notations, and $1,100 in cash. The judgment is affirmed.

M.R. (appellant), the mother of A.R. (the minor), appeals from an order of the juvenile court terminating her parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant contends the juvenile court committed reversible error in terminating her parental rights without determining the identity of the father of the minor and providing him with notice of the dependency proceedings. Concluding appellant lacks standing to tender her claim, Court dismiss the appeal.

Appellant, Lindsay P., the mother of the minor (mother), appeals from the juvenile courts order terminating parental rights. (Welf. & Inst. Code, 366.26, 388, 395.) Mother claims the juvenile court erred by denying her additional reunification services at the 12-month review hearing and by denying her request for modification. She also maintains she received ineffective assistance of counsel at the hearing at which her parental rights were terminated. Court affirm.

At a May 2, 2007 disposition hearing in a wardship proceeding pursuant to Welfare and Institutions Code section 602,[1]the juvenile court placed Salvador D.C. (Salvador) on probation and detained him on 30 days of home supervision with his mother. Salvador filed a notice of appeal from the May 2 judgment. On appeal, he claims that the juvenile court erred in setting the maximum term of confinement at the May 2 hearing. A specification of the maximum term of confinement is required whenever "the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602." ( 726, subd. (c).) Salvador contends that Cunningham v. California (2007) 549 U.S. 270, and the constitutional right to equal protection require that a juvenile court use the middle term, rather than the upper term, in setting a maximum term of confinement. Maximum term of confinement from the May 2 judgment. As so modified, Court affirm the judgment.

In March 2006, appellant Alfonso Araiza, pursuant to a plea agreement, pled no contest to unlawful sexual intercourse with a person under the age of 18 (Pen. Code, 261.5, subd. (c)). In that same proceeding, the court placed appellant on three years probation, one of the terms of which was that he serve six months in county jail.
In September 2006, appellant moved to vacate the judgment on the grounds that he was not adequately advised of the immigration consequences of the judgment pursuant to section 1016.5. The court denied the motion, and the instant appeal followed. The court granted appellants request for a certificate of probable cause ( 1237.5). On appeal, appellant contends the court erred in denying appellants section 1016.5-based motion to vacate the judgment. Court will affirm.

Appellants James Lynn Bartlett, Jr., and Gregory Lee Norsworthy were jointly tried and convicted of several offenses arising out of the shooting of Kevin Bruce Qualls. Norsworthy contends (1) the evidence was insufficient to sustain the conviction for active participation in a criminal street gang; (2) the term of imprisonment imposed on the assault with a firearm conviction should have been stayed; and (3) one verdict form contains clerical errors. Bartlett contends the trial court abused its discretion by denying his motion for a mistrial. The People contend the abstract of judgment does not reflect an enhancement found true by the jury and imposed by the trial court. Court affirm the judgment, with directions that the verdict form and abstract of judgment be corrected.

Appellant, Thomas Vasquez, pled no contest to transportation of methamphetamine (count I/Health & Saf. Code, 11379, subd. (a)), possession for sale of methamphetamine (count II/Health & Saf. Code, 11378), and driving without a valid license (count IV/Veh. Code, 12500, subd. (a)). He also admitted a weight enhancement in counts I and II (Pen. Code, 1203.073, subd. (b)(2)). On January 29, 2007, the court sentenced Vasquez to a three-year term. On appeal, Vasquez contends the court erred when it denied his motion to suppress. Court affirm.

A jury convicted appellant Jose Manuel Duarte-Rodriguez of first degree murder (Pen. Code, 187) and found true an allegation that appellant knew that another principal in the commission of that offense was personally armed with a firearm ( 12022, subd. (d)). In a separate proceeding, the court found true allegations that appellant had suffered two strikes[2]and one prior serious felony conviction ( 667, subd. (a)). The court imposed a prison term of 81 years to life, with the determinate portion of the term consisting of 75 years for the substantive offense, five years for the prior serious felony conviction enhancement and one year for the firearm enhancement. On appeal, appellants sole contention is that the evidence was insufficient to support his conviction of murder. Court affirm.