CA Unpub Decisions

Defendant Timothy Allen Moelk appeals a judgment entered upon a jury verdict finding him guilty of receiving stolen property. He contends the trial court erred in denying his motion to sever his trial from that of his co defendant, and that it committed instructional error. Court affirm.

K.B. (Mother), mother of Tatiana R. (born October 1999), Alexis R. (born November 2000), Jasmine R. (born December 2002), T.R. (born November 2003) and Marquise B. (born January 2005), appeals orders dated July 10, 2007, entered pursuant to Welfare and Institutions Code section 387, denying appellants request that the minors be placed with her. Mother contends the orders continuing the minors in out-of-home placement were not supported by substantial evidence, and there was insufficient compliance with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901 et seq., Cal. Rules of Court, former rules 1439 and 5.664). The order is affirmed.

Hank Jackson Kennedy (appellant) appeals from a judgment entered after he pleaded no contest to one count of transporting marijuana. (Health & Saf. Code, 11360, subd. (a).) His counsel on appeal has filed an opening brief that asks this court to conduct an independent review of the record as is required by People v. Wende (1979) 25 Cal.3d 436. Counsel also informed appellant that he had the right to file a supplemental brief on his own behalf. Appellant declined to file such a brief. Court conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436. (See also People v. Kelly (2006) 40 Cal.4th 106.)

A pipe fell from overhead shelving and struck plaintiff and appellant David Jackson (plaintiff), an employee of Washington Inventory (Washington), while he was performing inventory services for defendant and respondent The Home Depot U.S.A., Inc. (Home Depot). He sued Home Depot for negligence and obtained a $937,000 jury verdict. Home Depot moved for a new trial under Code of Civil Procedure section 657 (section 657), contending that the trial court erred when it granted a directed verdict on the issue of plaintiffs comparative negligence. The trial court agreed with Home Depot and issued an order granting a new trial.
On appeal, plaintiff contends that the trial court erroneously granted the new trial motion because, given the total lack of evidence showing that plaintiff acted unreasonably, the directed verdict on the issue of plaintiffs comparative negligence was correct as a matter of law. Based on our independent review of the evidence, we hold that there was sufficient evidence from which a reasonable juror could have inferred that plaintiff acted unreasonably in light of a known risk. The directed verdict on the issue of plaintiffs comparative negligence was therefore erroneous and that legal error warranted a new trial. Accordingly, Court affirm the trial courts order granting a new trial.

Jonathan R. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he committed a criminal threat (Pen. Code, 422), a felony. He was placed home on probation and contends the record does not support the courts finding that he committed a violation of Penal Code section 422. He also claims the court abused its discretion by excluding evidence of a prior domestic violence misdemeanor conviction of a prosecution witness. For reasons stated in the opinion, Court affirm the order.

From August 2000 to February 2001, a group of young men picked up prostitutes on Stockton Boulevard in Sacramento, kidnapped and sexually assaulted them. Their crime spree ended after they picked up a teenager who was not a prostitute. She escaped after the sexual assault and called the police. One of her attackers was arrested at the scene and the others shortly thereafter. In a 68-count information, the People charged six defendants with various crimes arising from serial gang rapes against eight victims. The court severed the trial of one defendant, and the case proceeded to trial against the remaining five defendants with two juries. Seven counts involving one victim were dismissed after she failed to appear at trial. The two juries convicted defendants of most, but not all, of the charged offenses. Each defendant was sentenced to a lengthy prison term, including a life sentence.

After the death of Christopher McCauliffe, defendants Timothy Thomas Stayer and Robert Lee Stayer[1]and several codefendants were charged with murder (count 1; Pen. Code, 187, subd. (a)),[2]conspiracy to commit torture (count 2; 186, subd. (a)(1), 206), torture (count 3; 206), kidnapping (count 4; 207, subd. (a)), and destruction of evidence (count 6; 135). As to count 1, it was alleged as a special circumstance that defendants committed murder while in the commission of kidnapping ( 190.2, subd. (a)(17)(B)). As to count 3, it was alleged as an enhancement that defendants inflicted great bodily injury ( 12022.7). As to counts 1 through 4, Timothy was alleged to have served a prior prison term ( 667.5, subd. (b)). A jury convicted defendants on all counts and found the special circumstance and enhancement true. In a bifurcated proceeding, the trial court found that Timothy had served a prior prison term. court remand to strike the restitution fines under section 1202.45. In all other respects, Court affirm.

In an information filed on January 22, 2007, defendant Joshua James Selfridge was charged with unlawful driving or taking of a vehicle [count I] (Veh. Code, 10851, subd. (a)) and with receiving stolen property in the form of a motor vehicle [count II] (Pen. Code, 496d, subd. (a).) As to both counts, the information alleged that defendant inflicted great bodily injury (Pen. Code, 12022.7, subd. (a).) Furthermore, as to both counts, the information alleged that defendant previously suffered a conviction for auto theft as well as a conviction within the meaning of the Three Strikes Law. (Pen. Code, 666.5; 667, subd. (d); 1170.12, subd. (b).)
Defendant filed a timely notice of appeal on March 27, 2007. The enhancement for infliction of great bodily injury appended to count II (receiving stolen property) is hereby stricken. In all other respects, the judgment is affirmed.

Following a contested jurisdictional hearing, Terry W., a minor, was found to have committed attempted burglary and vandalism and was placed on informal probation. One condition of probation, No. 9(l), was that minor [n]ot associate with persons who you know or whom the Probation Officer informs you are users or sellers of illegal drugs, including marijuana, or be in places where such substances are present.
The minor contends this condition is unconstitutionally overbroad because it fails to limit his exclusion to places where he knows that illegal substances are present. He requests that we so modify the condition to include this knowledge requirement. The People argue the knowledge requirement is implied in the condition and, therefore, no modification is necessary. Court agree with the minor and shall modify the condition accordingly.

A jury found defendant Timothy Kevin Shea guilty of seven counts of committing lewd acts on a child under age 14. Finding that defendant had two prior serious felony convictions within the meaning of the three strikes law, the trial court sentenced him to an aggregate indeterminate state prison term of 525 years to life, plus a determinate term of 70 years. On appeal, defendant contends the court erroneously included the word victim in two of the jury instructions. Court affirm the judgment.

In case No. CM025513 (the drug case), defendant Kevin Paul Warnock pled no contest to possession of heroin and admitted a strike prior in exchange for dismissal of the remaining counts (possession of methamphetamine, possession of a smoking device, and possession of a hypodermic needle or syringe) and allegations of four prior prison terms. On October 5, 2006, the court suspended imposition of sentence and granted Proposition 36 probation for a term of three years. A petition for revocation of probation filed a month later alleged that defendant violated probation in that his whereabouts was unknown. The judgment is affirmed.

T.B. (mother), the mother of N.C. and C.B., Jr., and Anthony P. (father), the father of N.C., appeal from an order of the juvenile court terminating their parental rights. (Welf. & Inst. Code, 366.26, 395.)[1] Mother contends the juvenile court committed reversible error in terminating her parental rights because substantial evidence supported application of a statutory exception to adoption. ( 366.26, former subd. (c)(1)(A).) Mother and father also claim the San Joaquin County Human Services Agency (HSA) and the juvenile court violated the Indian Child Welfare Act of 1978 (the ICWA). (25 U.S.C. 1901 et seq.) Agreeing with the ICWA claim only, Court conditionally vacate the order terminating parental rights and remand for proper notice.

Eliseo G. (appellant), the father of L.G. (the minor), appeals from the juvenile courts order terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant makes three contentions of alleged prejudicial error, including a claim that Butte County Department of Employment and Social Services (DESS) and the juvenile court violated the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. 1901 et seq.). Agreeing with the ICWA claim only, Court conditionally vacate the order terminating parental rights and remand for proper notice to the tribes.

A jury convicted Archie Lee Thomas of residential burglary (Pen. Code,[1] 459, 460), count 1; assault with intent to commit rape ( 220), count 2; attempted forcible rape ( 664, 261, subd. (a)(2)), count 3; five counts of forcible rape ( 261, subd. (a)(2)), counts 4, 6-7, 9-10; rape with a foreign object with use of force ( 289, subd. (a)(1)), count 5; and forcible oral copulation ( 288a, subd. (c)(2)), count 8. The jury also found the forcible sex offenses were committed during the commission of a burglary within the meaning of the "one strike" law. ( 667.61, subds. (a), (c), (d).) The court sentenced Thomas to a determinate term of 55 years, followed by an indeterminate term of 25 years to life in prison.
Thomas appeals his conviction, contending (1) the court improperly denied his pre-trial motion for self-representation, (2) the court erroneously admitted irrelevant and prejudicial evidence from the victim, (3) the court's imposition of upper term sentences in counts 1 and 5 through 10 violated his Sixth and Fourteenth Amendment rights and (4) the court incorrectly imposed on him a "direct victim" restitution fine payable to the El Cajon Police Department.