CA Unpub Decisions

At about 1:00 a.m. on September 2, 2006, San Diego police officers responded to appellant's home to investigate a domestic violence report. The officers found appellant's wife crying. Her right eye was bruised and swollen shut. Her nose was cut in several places. Her left cheek was swollen and her right forearm was bruised. She received treatment at a hospital, where it was determined she suffered a fractured orbital pivot of her right eye. Her nose required several stitches. The injuries were caused by appellant, who punched her in the face several times. Judgment affirmed.

A.L. appeals the findings and orders entered at the permanency planning hearing held pursuant to Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error. A.L.'s counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied.

A jury found defendant guilty of four counts of robbery (Pen. Code, 211)[1](counts 1, 2, 5, and 6) and one count of attempted robbery ( 664/211) (count 3).[2] In addition, the jury found true that defendant had used a deadly and dangerous weapon in the commission of three of the counts, rendering the crimes serious felonies ( 12022, subd. (b)(1), 1192.7, subd. (c)(23)). In a bifurcated proceeding, the trial court found true that defendant had sustained six prior serious and violent felony convictions ( 1192.7, subd. (c), 667.5, subd. (c)) and that defendant was released from custody on bail at the time he committed two of the current offenses ( 12022.1).[3] Defendant was sentenced to consecutive terms of 25 years to life on each count, for a total of 125 years to life.[4] Defendants sole contention on appeal is that the jury instruction given to the jury on the definition of reasonable doubt found in Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 220 violates due process. Court reject this contention and affirm the judgment.

Appellant Ray Adamyk (father) appeals an order of the San Bernardino County Superior Court ordering him to pay child support and spousal support to his former wife, respondent Denise Adamyk (mother). Father contends that, as the court had previously ruled it had no jurisdiction over the issue, it erred in reconsidering and reversing that order, and thus in imposing the child support and spousal support order. Court affirm.

This petition is brought on behalf of the minor, James C. (the minor), and challenges the trial courts decision to grant de facto parent status to the minors paternal grandmother, Vickie C. (grandmother). Responsive briefs on the side of petitioner have also been filed by the Riverside County Department of Public Social Services (department), Melissa W. (mother), and Derrell N. (father). After considering all the briefs, Court deny the petition.

Petitioner Terri M. (mother) filed a petition for extraordinary writ pursuant to California Rules of Court rule 8.452 (formerly rule 38.1( a)), challenging the juvenile courts order terminating reunification services as to her child, Melanie (the child) and setting a Welfare and Institutions Code section 366.26 hearing. On March 19, 2008, this court stayed the section 366.26 hearing, pending further order. Court lift the stay.

Melissa Carbajal and Demarea Gossett had a child together. On February 13, 2007, a little after 11:00 a.m., Carbajals father, Ramon Sandoval, went to her second story apartment. When Sandoval arrived, Carbajal and Gossett were arguing in the living room. Sandoval received a cell phone call and went out to the apartments balcony to answer it. After returning inside, he saw that Carbajal was full of blood. Sandoval began struggling with Gossett and said he was going to call the police. He did not call because Carbajal and Gossett both told him not to. However, a worker at the apartment complex made the call. Gossett rode off on a bicycle prior to the police arriving.
Following independent review of the record Court find that no reasonably arguable factual or legal issues exist.

Police Officer Tracy Holz was dispatched at five a.m. to a Shell gas station/convenience store on Valley View Street, just off the 22 Freeway. The dispatch reported a man loitering around the station. He had parked his car in the back of the station, largely out of view of the street traffic. Then, for the next hour, was seen pacing back and forth, looking in the windows of the station. Holz arrested him for prowling and took him to the police station. During a booking search, a dollar bill was found in his left sock. When Holz unfolded the bill, she discovered a substance that tested positive for methamphetamine. The trial court denied appellants motion to suppress the substance, and at trial appellant claimed the substance was penicillin, not meth. However, the jury rejected this assertion and convicted him of possessing a controlled substance. The court placed him on probation pursuant to Proposition 36. The judgment is affirmed.

Court appointed counsel to represent defendant John Wesley Milligan on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against his client, but advised the court he found no issues to argue on his behalf. Court provided defendant 30 days to file written argument in his own behalf.
Court have found no other arguable issues. The judgment is affirmed.

Defendant Juan Vazquez appeals from a judgment of conviction, arguing the trial court erred in denying his motion to suppress evidence obtained through a consensual search of his vehicle. Court affirm. The initial traffic stop was legal, based on the arresting officers reasonable belief that defendants car had an illegal tinted window covering. Further, the length of the traffic stop was not unduly prolonged.

Defendant Richard Rodriguez Magana stabbed and killed Alfred Garcia during an altercation that involved his father, defendant Luis Magana Magana.[1] After a jury failed to reach verdicts, the trial court declared a mistrial. A second jury acquitted defendants of murder but convicted Richard of voluntary manslaughter and Luis of aggravated assault (deadly weapon or force likely to produce great bodily injury) and aggravated battery (infliction of serious bodily injury). The trial court sentenced Richard to the mid-term of six years in prison. As to Luis, it suspended imposition of sentence and placed him on probation for three years conditioned on serving 364 days in jail (less credit for 290 days).
On appeal, defendants contend that the trial court erred by misinstructing the jury as to self-defense and defense of another; Richard additionally contends that the trial court erred by denying his motions for a new trial grounded on two incidents of jury misconduct and for dismissal grounded on the prosecutors failure to redact gang-affiliation references from an evidentiary videotape; Luis additionally contends that the trial court erred by (1) misinstructing the jury as to the effect of voluntary intoxication on mental state, and (2) refusing his request to instruct the jury as to simple assault and simple battery. We agree that the trial court erroneously instructed the jury as to defense of another and that the error was prejudicial. Court therefore find it unnecessary to address the parties remaining contentions. Court reverse the judgment.

Frederick William Everts appeals from a judgment of conviction of 15 counts of committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code, 288, subd. (a)),[1] two counts of employing a child for noncommercial pornography ( 311.4, subd. (c)), and one misdemeanor count of possessing child pornography ( 311.11, subd. (a)) following the submission of the case for decision based upon the preliminary hearing transcript and other exhibits. He was sentenced pursuant to Three Strikes law ( 667, subds. (b)-(i); 1170.12) to a total term of 800 years to life, which sentence was calculated with reference to One Strike law ( 667.61). On appeal, defendant asserts that that the judgment must be reversed because he did not personally waive his constitutional right against self incrimination before the submission of case to the court for decision, which submission was a "slow plea" tantamount to a plea of guilty. Court conclude the "slow plea" was voluntary and intelligent under the totality of the circumstances and affirm.

Defendant Adelberto Fausto appeals an order extending his state hospital commitment for an additional year pursuant to Penal Code section 2970. Defendant's counsel advises this court that her examination of the record reveals no arguable issues. (Anders v. California (1967) 386 U.S. 738 (Anders); People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised her client in writing that a Wende brief was filed and that he had the right to personally file a supplemental brief in this case within 30 days. Defendant sent two letters addressed to his appellate counsel. Counsel then filed defendant's letters with this court. We conclude, consistent with Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) recommitment proceedings pursuant to section 2970 are not subject to Wende review. However, because in his letters defendant indirectly attacks his commitment, Court have reviewed the record and find that substantial evidence supports the court's order extending defendant's hospital commitment for another term.
The commitment order is affirmed.

These consolidated appeals involve efforts by the California Correctional Peace Officers Association (CCPOA) to arbitrate the question whether its labor agreement permits arbitration of pattern-and-practice grievances. In A113595, CCPOA appeals from an order denying its petition to compel arbitration, contending the trial court erred in failing to order that its grievances be arbitrated in a single proceeding or that an arbitrator determine whether its labor agreement permitted a pattern and practice grievance. In A118069, the State of California, Department of Personnel Administration (DPA) and California Department of Corrections and Rehabilitation (CDCR) (collectively State) appeal from an order confirming an arbitrators decision that the labor agreement does permit this type of grievance. The State contends this second case should not have been submitted to arbitration and the arbitrators decision should not have been affirmed. Court conclude the trial court erred in denying the petition to compel arbitration in A113595, and reverse the judgment in that case. Court conclude the trial court lacked jurisdiction to proceed in A118069, and consequently reverse the orders in that case compelling arbitration and confirming the arbitrators decision.