CA Unpub Decisions

This is an appeal from a judgment dismissing a petition requesting correction of an arbitration award. The question presented is whether the arbitrator exceeded [his] powers within the meaning of Code of Civil Procedure section 1286.6, subdivision (b), when he found there was no prevailing party and that, therefore, no party was entitled to attorneys fees under Civil Code section 3250, and that no party was entitled to recover its costs of suit under Code of Civil Procedure section 1032. The answer is no since the arbitrator had the power to make this finding. Consequently, no grounds exist under Code of Civil Procedure section 1286.6 for correcting the award by including attorneys fees and costs of suit. Court affirm the judgment.

Appellant, Jefferson Velasquez, was charged in an information filed April 16, 2007, with assault by means likely to produce great bodily injury while confined in a state prison (Pen. Code, 4501). The information alleged a prior serious felony conviction within the meaning of the three strikes law. After a four-day jury trial, Velasquez was convicted on June 21, 2007, of the offense. In a bifurcated proceeding, Velasquez admitted the prior serious felony conviction.
Velasquezs 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. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Velasquez was advised he could file his own brief with this court. By letter dated February 4, 2008, we invited Velasquez to submit additional briefing. Velasquez replied with a letter asserting that he never had an opportunity to cross-examine the victim, testimony from prison guards was contradictory, the victim could not identify him, and the charges were [too] high.

On July 20, 2006, the Stanislaus County District Attorney filed an information in superior court charging appellant as follows: Count I carjacking (Pen. Code,[1] 215) with personal use of a deadly and dangerous weapon ( 12022, subd. (b); count IIrobbery ( 211); count IIIassault with a deadly weapon ( 245, subd. (a)(1)); and count IVsecond degree burglary ( 459). As to all counts, the district attorney specially alleged appellant sustained two prior felony convictions ( 667, subd. (d)) and served three prior prison terms ( 667.5, subd. (b)). As to counts I, II, and III, the district attorney specially alleged appellant sustained two prior serious felony convictions ( 667, subd. (a)). As to counts II, III, and IV, the district attorney specially alleged appellant served a prior prison term ( 667.5, subd. (b)).
On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations. The superior court granted appellants request for certificate of probable cause.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter J. Court deny the petition.

The Irvine Company (the Company) appeals from entry of judgment in its unlawful detainer action against KST Enterprises (KST). The Company argues the trial court, in a bench trial, erroneously ruled a recapture provision in the Companys amended lease agreements was unconscionable pursuant to Civil Code section 1670.5. Court disagree and affirm the judgment.

Cary Odell Singletary was convicted of three counts of failing to register as a sex offender. (Pen. Code, 290.)[1] Two of the counts were based on his failure to register within five days of changing his residence ( 290, subd. (a)(1)(A)), and the other count was based on his failure to register within five days of his birthday ( 290, subd. (a)(1)(D)). Arguing his failure to register constituted a single continuing offense, he contends he should only have been convicted of and punished for one of the counts, not three. He also contends the courts definition of reasonable doubt was flawed, and its failure to define the term reside mandates reversal. Court reject his arguments and affirm the judgment in its entirety.

Hedayet Khogyani appeals from a judgment after a jury convicted him of attempted murder and mayhem and found true he personally used a deadly weapon and caused his victim brain injury and paralysis. He argues insufficient evidence supports his attempted murder conviction, the trial court erroneously admitted expert testimony, and there were instructional errors. None of his contentions have merit, and Court affirm the judgment.

Jacqueline and Kenneth E. appeal from a judgment terminating their parental rights over six-year-old K.E. Kenneth argues the court erred in denying his request for a continuance and failing to comply with the Indian Child Welfare Act (ICWA). (See 25 U.S.C. 1901 et seq.) Jacqueline neither joins these arguments nor raises any of her own. Rather, she requests that her parental rights be restored if Kenneths arguments have merit. Court find the court justifiably denied Kenneths request for a continuance, but proper notice was not provided under the ICWA. Accordingly, Court reverse the judgment and remand the matter with directions for the trial court to ensure proper notice is given.

Petitioner Claudia S. (Mother) is the mother of J.O., born in October 2003, L.Q., born in July 2005, and G.Q., born in November 2006. Pursuant to California Rules of Court, rule 8.452, Mother challenges findings and orders the juvenile court made following a consolidated 12 month review hearing on an initial petition and a jurisdictional hearing on a subsequent petition brought under Welfare and Institutions Code section 342 (all further statutory references are to the Welfare and Institutions Code). The juvenile court found the children came within the courts jurisdiction under section 300, subdivision (e), ordered the children detained, denied further reunification services on the initial petition, denied reunification services on the section 342 petition, and set a hearing pursuant to section 366.26 to determine a permanent plan of placement. The section 366.26 hearing is scheduled for June 18, 2008.

In response to Mothers contentions, we conclude: (1) substantial evidence supported the jurisdictional findings on the section 342 petition; (2) the juvenile court did not err by denying Mother reunification services under section 361.5, subdivisions (b)(5) and (c); (3) the juvenile court did not err by not making certain findings necessary to continue the case under section 366.21, subdivision (g)(1); (4) the juvenile court did not err by denying Mother reunification services under section 361.5, subdivision (b)(6); and (5) the juvenile court did not err by not ordering reunification services for Mothers boyfriend. Court therefore deny Mothers petition.

Defendant William Harris was charged by information with three counts of lewd and lascivious acts on a child under 14 (Pen. Code, 288, subd. (a); counts 1-3), one count of sexual penetration of a child under the age of 14 and more than 10 years younger than the defendant (Pen. Code, 289, subd. (j); count 4) and one count of aggravated sexual assault of a child under the age of 14 and more than seven years younger than the defendant (id., 269; count 5). A jury found Harris guilty on all counts. The trial court sentenced Harris to a total term of 27 years to life, consisting of a term of 15 years to life on count 5, consecutive to an aggregate determinate term of 12 years on the remaining counts. Harris filed a timely notice of appeal. On appeal, Harris contends that the trial court erred by allowing certain evidence to be introduced, specifically evidence regarding Child Sexual Abuse Accommodation Syndrome (CSAAS) and evidence of certain uncharged offenses. Harris also argues that the trial court erred in instructing the jury. Court disagree and shall affirm.

A jury found appellant Eric Adams guilty of four counts of making a criminal threat, two counts of attempting to dissuade a witness from testifying by threat of force, one count of unlawfully causing a fire to an inhabited structure, two counts of conspiracy to dissuade a witness from testifying, one count of misdemeanor battery and one count of misdemeanor brandishing a weapon. (Pen. Code, 422, 136.1, 182, 452, 242, 417.) The same jury found appellant Jesse Adams guilty of one count of attempting to dissuade a witness from testifying by threat of force, one count of making a criminal threat, and one count of conspiracy to dissuade a witness from testifying. (Pen. Code, 136.1, 422, 182.) The trial court sentenced Eric Adams to 24 years in state prison. The trial court sentenced Jesse Adams to a state prison term of 75 years to life with a consecutive determinate term of 30 years.
The judgment is reversed.

Following the trial courts denial of her motion to exclude at trial evidence of her statements to the police, defendant Maria Ana Quinones pleaded no contest to second degree murder. (Pen. Code, 187.)[1] The trial court sentenced her to state prison for the indeterminate term of 15 years to life. On appeal, defendant contends that she should be allowed to withdraw her plea because it was induced by an unenforceable promise of a right to appeal the trial courts ruling on her in limine motion. We find that because defendant failed to timely obtain a certificate of probable cause, she may not contest the validity of her plea on appeal. Therefore, Court dismiss the appeal.

Defendant Anthony Untalan Taison was arrested in February 2007 after the police executed a search warrant at his residence and located methamphetamine, a firearm, drug paraphernalia, and other indicia of an illegal drug sales operation. He was charged with possession for sale of a controlled substance (Health & Saf. Code, 11378); being a felon in possession of a firearm (Pen. Code, 12021. subd. (a)(1));[1] possession of controlled substance paraphernalia (Health & Saf. Code, 11364); and being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)). The information also charged that at the time defendant committed the methamphetamine possession for sale offense, he was personally armed with a firearm ( 12022, subd. (c); hereafter 12022(c)), and that he possessed for sale 57 grams or more of a substance containing methamphetamine ( 1203.073, subd. (b)(2)). He was convicted by a jury of all counts; the jury also found both special allegations true. Defendant was sentenced to a total prison term of five years (two years for the Health & Saf. Code 11378 count and three years for the 12022(c) firearm enhancement).
Court affirm the judgment as modified.

Appellant Daisy C., mother of Kimbrelee C., appeals from an order terminating her parental rights, pursuant to Welfare and Institutions Code section 366.26. Kimberlee was taken into protective custody when appellant was arrested for a parole violation. When appellant was arrested, she was under the influence of a controlled substance. Further, she had secreted drug paraphernalia in Kimberlees diaper bag. Appellants parental rights have previously been terminated as to five out of eight children. The juvenile court denied reunification services and subsequently terminated appellants parental rights after appellants submission on the recommendations of the respondent, Santa Clara Department of Family and Childrens Services. This appeal ensued. Court appointed counsel to represent appellant in this court.