CA Unpub Decisions

Appellant Ricardo V. appeals from orders denying his petition for custody or additional reunification services pursuant to Welfare and Institutions Code section 388[1]and terminating his parental rights to his daughter, Alyssa V. (born in 1999), pursuant to section 366.26. Ricardo contends the dependency court abused its discretion by failing to properly consider evidence of changed circumstances and Alyssas best interest when it denied his section 388 petition. He further contends the evidence was insufficient to support the dependency courts finding that the exception to termination of parental rights under former section 366.26, subdivision (c)(1)(A), does not apply. Court disagree and affirm.

Mary K. (Mother) appeals from an October 16, 2007 order denying her a hearing on her petition for modification (Welf. & Inst. Code, 388) and terminating her parental rights to her son, D.G. (Alex), born in August 2004. Court affirm because the juvenile court did not abuse its discretion in denying her petition without a hearing and substantial evidence supports the courts rejection of the beneficial relationship exception to termination of parental rights (Welf. & Inst. Code, former 366.26, subd. (c)(1)(A), now subd. (c)(1)(B)).

Kazue C. (mother), mother of three-year-old Giannina P. and 14-year-old Jeremy N. (children), appeals from the juvenile courts order denying her petition under Welfare and Institutions Code section 388[1]as to both children and the juvenile courts order terminating her parental rights only as to Giannina under section 366.26. Court affirm.

By a petition for extraordinary writ, Michael V. (Father), the paternal grandparents, and the paternal aunt challenge a February 13, 2008 order of the juvenile court denying adoptive placement of Seth C. (born in July 2007) with the paternal grandparents. The court maintained adoptive placement of Seth with his nonrelative foster parents under Welfare and Institutions Code section 366.26, subdivision (k). Because Court conclude that the juvenile court did not abuse its discretion, this petition will be denied.[

Based on the out-of-court statements of T. S. (the victim), the trial court sustained allegations that defendant Alberto Vital violated probation. The court revoked defendants probation and sentenced him to two years in state prison.
On appeal, defendant contends he was denied his right of confrontation under the state and federal Constitutions when the trial court admitted hearsay statements of the victim identifying defendant as one of several persons responsible for attacking and beating him while in custody. Defendant also contends the courts finding that he violated probation was error. Court shall affirm the judgment.

Marc A. (appellant), the alleged father of Branden C., appeals from the juvenile courts order terminating parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant contends the court erroneously denied him presumed father status. Court affirm.

In August 2006, defendant Stephen Brian Jones argued with his mother, grabbed her by the shoulder, threatened to cut her throat with a knife, retrieved a knife from the kitchen, and threatened to cut his own wrist, and then locked himself in his bedroom.[1]

In September 2006, in case No. 06F6243, defendant pled guilty to elder abuse. (Pen. Code, 368, subd. (b)(1).)[2] In exchange, a count of criminal threats ( 422) was dismissed. Imposition of sentence was suspended and defendant was placed on probation for three years, ordered to serve 73 days of incarceration with credit for time served, and ordered to pay a $200 restitution fine ( 1202.4) plus a 10 percent administrative fee, a $200 restitution fine suspended pending successful completion of probation ( 1202.44), and a $20 court security fee ( 1465.8). The judgment is modified to impose a $20 court security fee in case No. 07F3268. As so modified, the judgment is affirmed.

A jury convicted Tony Dicicco of possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, 11378), and found true allegations that he was presumptively ineligible for probation based on the quantity of methamphetamine (Pen. Code, 1203.073, subd. (b)(2)). Dicicco admitted allegations he suffered a prior drug-related conviction and a strike prior conviction (Health & Saf. Code, 11370.2; Pen. Code, 667, subds. (b)-(i)), served three prior prison terms (Pen. Code, 667.5. subd. (b)), and committed the present criminal offense while on bail (Pen. Code, 12022.1, subd. (b)). Striking his prior prison convictions, the trial court sentenced Dicicco to a 10-year state prison term. On appeal, Dicicco contends the evidence is insufficient to support his conviction for possession of methamphetamine for sale. He also contends the court prejudicially erred by instructing the jury with CALCRIM Nos. 2302 and 375. Court reject these contentions and affirm the judgment.

Appellant Meadows Del Mar Homeowners Association (Association) appeals from an order denying its special motion to strike the cross-complaint of respondent Darnell & Scrivner Architecture, Inc. brought under Code of Civil Procedure section 425.16, the "anti-SLAPP statute."[1] Respondent, an architectural firm, was sued by its client for breach of contract and negligence in part for allegedly failing to adhere to Association covenants, conditions and restrictions (CC&Rs) and architectural design guidelines. It thereafter cross-complained against Association, alleging it suffered damages in the form of additional re-design costs, potential business and lost profits due to Association's negligence in revoking approval of respondent's architectural plans, issuing a stop work order, and asking the City of San Diego to reexamine the plans. Court conclude Association has not shown the acts underlying respondent's cross-complaint involve protected petitioning activity within the meaning of section 425.16. Accordingly, Court affirm the order.

L.C., the alleged father of Byron C., appeals the juvenile court order denying him presumed father status in Byron's child dependency proceeding. L.C. challenges the sufficiency of the evidence to support the court's finding that he did not meet the criteria of a presumed father under Family Code section 7611, subdivision (d). L.C. also contends the court erred by admitting into evidence the attachments to the social worker's reports, and he was denied due process because the paternity form used did not adequately inform him of his rights and responsibilities as a father. The order is affirmed.

Defendant John Howard III appeals from his conviction of two counts of assault with a deadly weapon (Pen. Code, [1] 245, subd. (a)(1) counts 11 and 16); three counts of making criminal threats ( 422 counts 7, 8, and 15); corporal injury to a spouse ( 273.5 (a) count 12); false imprisonment ( 236 count 13); two counts of brandishing a weapon ( 417, subd. (a)(2) counts 9 and 10); assault with a firearm ( 245, subd. (a)(2) count 14); being a convicted felon in possession of a firearm ( 12021.6, subd. (a)(1) count 17); possessing a firearm while on probation ( 12021, subd. (d) count 18); and illegal possession of ammunition ( 12316, subd. (b)(1) count 19); along with true findings on associated enhancements.Defendant contends (1) the evidence was insufficient to support five of the counts; (2) the trial court erred in failing to instruct the jury on lesser offenses; (3) the jury instruction on reasonable doubt was constitutionally deficient; (4) the trial court presented the appearance of bias; (5) defendants sentence for count 14 should be stayed under Penal Code section 654; and (6) he should be resentenced to concurrent terms because the trial court imposed consecutive terms based on facts not found by the jury. Court find no error, and Court affirm.

A jury convicted Jesse Lawrence Gonzales of first degree murder in the stabbing death of Larry L. Trevino. (Pen. Code, 187, subd. (a), 189.) Gonzales admitted he killed Trevino, but claimed he acted in a fit of rage after Trevino made an unwanted sexual advance. Gonzales argues there was not substantial evidence that the murder was the result of deliberation, premeditation, and malice aforethought. He also argues his trial counsel was ineffective because counsels attempts to introduce psychological testimony were unsuccessful. Court reject Gonzaless assertion that trial counsel was ineffective since he cannot demonstrate any prejudice as a result of the exclusion of his proposed experts testimony. We agree with Gonzales, however, that there was not substantial evidence to support the jurys conclusion that the murder was the result of deliberation and premeditation. Court will reverse the first degree murder conviction and remand the matter to the trial court with directions to enter a conviction of second degree murder and resentence Gonzales accordingly.

On December 18, 2006, M. L. was in her house when she heard someone banging at her front door. M. L. looked out the window and saw a car in her driveway and a woman later identified as appellant, Mary Rios Segovia, at her front door. M. L. went to the rear of the house. She heard glass breaking and ran to a neighbors house. The neighbor called the sheriffs department and followed Segovias car in her personal car. M. L. returned home and found several items missing. When deputies arrived, M. L. told them she recognized the woman who earlier was banging on her door. The neighbor provided the deputies with a description of the car. The judgment is affirmed.

Respondent Betty Marie Glover (Betty) filed a petition in the probate court to be appointed executor of the will of decedent, Zelma Christene Hunt. Objection to the petition was made by her sister, appellant Barbara Ann Hunt (Barbara).[1] Barbara appeared at the scheduled hearings, made oral argument and filed volumes of papers in support of her objection. The probate court ultimately granted the petition and appointed Betty as executor of decedents will. Barbara appeals, contending she was denied due process. Court affirm the order.