CA Unpub Decisions

Al Tatro (plaintiff) filed a lawsuit against James P. Bradley, doing business as Vera Carson Estates Mobile Home (defendant). Defendant filed a demurrer to plaintiffs first amended complaint (FAC), which was sustained without leave to amend. Plaintiff appeals, contending the trial court ignored the gravamen of the FAC, defendants illegal conspiracy to conduct a commercially unreasonable sale of plaintiffs mobilehome. Court affirm the judgment (order of dismissal).

Appellant Derek Luers committed a sex offense involving a minor and was sentenced to state prison. After serving his sentence, the Board of Parole Hearings (BPH) determined that he met the criteria for treatment as a mentally disordered offender (MDO) and recommended that he be confined to the Department of Mental Health (DMH) as a condition of parole. (Pen. Code, 2962.)
Appellant filed a petition requesting that the trial court overturn the determination of the BPH. ( 2966, subd. (b).) The trial court found that he met the statutory criteria beyond a reasonable doubt, certified him as an MDO and ordered him committed to the DMH. Appellant challenges the sufficiency of the evidence supporting the trial court's finding that he represents a substantial danger of physical harm to others. Court affirm.

Minor Fernando C. was charged in two separate petitions with committing weapons and drug offenses that qualified him as a ward of the juvenile court. (Welf. & Inst. Code, 602.) The first petition, filed May 4, 2007, charged the minor with possession of a firearm by a minor (Pen. Code, 12101, subd. (a)(1)) and with possession of live ammunition by a minor. (Pen. Code, 12101, subd. (b)(1).) The juvenile court sustained the petition as to the weapons possession charge, but did not find true the ammunition possession count. The second petition, filed May 15, 2007, charged him with possession of methamphetamine. (Health & Saf. Code, 11377, subd. (a).) That petition was sustained. Minor was declared a ward of the court and given a three-month camp placement as to both petitions.
Court have examined the entire record and are satisfied that appellants attorney has fully complied with her responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d 436.)

Frankie L. (father) and Kristen L. (mother) appeal from the order terminating their parental rights to their daughter, M.L. (Welf. & Inst. Code, 366.26.)[1] Mother contends that the parental beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) and the sibling relationship exception of section 366.26, subdivision (c)(1)(B)(v) bar a termination of rights in this case. Father argues that the parental beneficial relationship exception bars a termination of rights. Respondent Ventura County Human Services Agency (HSA) agrees with parents that the order terminating parental rights must be reversed because it did not comply with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C.A 1901 et seq.) Court reverse and remand to permit compliance with the ICWA, but reject the remaining arguments.

Mihran Bederian appeals from the trial courts denial of his petition for writ of error coram nobis and nonstatutory motion to vacate the judgment. Because the petition/motion fails to state a prima facie case for relief, Court dismiss the appeal.

On March 17, 2008, this court issued a Writ of Review to consider a Decision of respondent California Public Utilities Commission (CPUC) approving a proposal by real parties in interest Southern California Gas Company (SoCalGas) and San Diego Gas & Electric Company (SDG&E) to establish a system of firm access rights (FAR) to allocate transmission capacity of natural gas from upstream pipelines through receipts points into the SoCalGas and SDG&E integrated natural gas transmission system. Court affirm D.06-12-031 and D.07-09-046 and dismiss the writ petition. The CPUC supported the conclusion that the time was ripe for adoption of the FAR system in Southern California with separately stated findings of fact on a number of material issues, and those findings of fact were supported by substantial evidence. In addition, the set-asides granted to some, but not all, of the customers of SoCalGas and SDG&E were reasonable under the circumstances.

Ruben R. appeals form the juvenile court's order terminating his parental rights to his child, Jesse R., born June 7, 2007, and establishing adoption as the permanent plan. (Welf. & Inst. Code, 366.26.) We appointed counsel to represent Ruben R. on appeal. After examining the record, counsel advised this court in writing that there are no arguable issues. We notified appellant on April 17, 2008 that he had 30 days within which to personally submit any contentions he wished us to consider and that failure to do so would result in dismissal of this appeal as abandoned. We received a letter from appellant, dated May 3, 2008, in which he requests that he be provided with reunification services after his parole, which is expected to occur in 18 months. Under the circumstances, Court dismiss the appeal as abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994.) This appeal is dismissed.

Defendant Clifford King, Jr., was convicted of receiving stolen property. He was placed on probation, on terms including that he serve 120 days in county jail, and was ordered to pay various fines and fees. On appeal, defendant (1) challenges the orders that he pay up to $175 in public defender costs (Pen. Code, 987.8) and pay an undisclosed amount for preparation of a presentence investigation report and for probation supervision (Pen. Code, 1203.1b), and (2) contends the court erred in failing to specify the statutory bases for the components of the penalty assessments. Only the last contention has merit.

Defendant Damon Wayne Wise was found guilty by a jury of attempted first degree robbery (Pen. Code, 211, 664; further statutory references are to this code), first degree burglary ( 459), assault with a deadly weapon ( 245, subd. (a)(1)) and elder abuse. ( 368, subd. (b)(1).) The jury also found allegations true that defendant knew or should have known the victim was age 65 or older ( 667.9, subd. (a)) and that he inflicted great bodily injury on a person age 70 or older. ( 368, subd. (b)(2), 12022.7, subd. (c).) Probation was denied and defendant was sentenced to a term of nine years in state prison, consisting of an upper term of four years for assault with a deadly weapon plus a five-year enhancement for inflicting great bodily injury. Pursuant to section 654, the court imposed but stayed sentences on the remaining counts.
Defendant appeals, claiming the trial court violated the prohibition against dual use of facts at sentencing and that his upper term sentence violated the holding in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). Court affirm the judgment.

A jury convicted defendant Eddie Morris Jackson of corporal injury to a co-habitant (Pen. Code, 273.5, subd. (a)) and misdemeanor child endangerment. ( 273a, subd. (b).)[1] In a subsequent bench trial, the trial court found true the allegation in the complaint that defendant had served one prior prison term.[2] The trial court denied probation and sentenced defendant to the upper term of four years for the corporal injury conviction, and a consecutive one-year term for the prior prison term enhancement. The court further ordered defendant to pay a $400 domestic violence fine pursuant to section 1203.097, subd. (a), and a $650 fine.
Defendant argues the trial courts imposition of the upper term violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). He also claims the $400 probation fine was improperly imposed because he was not granted probation, and the $650 fine requires correction of the abstract of judgment to set forth what portion of that amount is either fine or penalty assessment. We shall order the $400 fine stricken and as to the $650 fine, Court remand for correction of the abstract to specifically identify what portion of that sanction is fine, fee, or penalty assessment. Court otherwise affirm the judgment of conviction and sentence.

On February 27, 2007, defendant was seen driving a stolen car with license plates belonging to a different car. Defendant had been previously convicted of a felony and knew the car was stolen. When police officers stopped and tried to detain him, he dropped a handgun and a plastic container containing methamphetamine. After his motion to suppress evidence was denied, defendant entered a negotiated plea of no contest to unlawfully driving of anothers vehicle (count one), receiving stolen property (count two), being a convicted felon in possession of a firearm (count three), and possessing methamphetamine. He also admitted that he was armed with a firearm in connection with counts one, two, and four; that he had a prior serious felony conviction; and that he had served a prior prison term. In exchange for his pleas, it was agreed he would receive a prison term of five years. In accordance with the plea agreement, the trial court sentenced defendant to four years on each count (the middle term of two years, doubled due to his prior serious felony conviction) plus one year for the firearm enhancements. Execution of sentence on counts two and three was stayed (Pen. Code, 654), and count four was ordered to run concurrently. In the interest of justice, the trial court struck the one-year prior prison term enhancement. (Pen. Code, 1385.) Defendant was awarded 179 days of actual custody credit and 88 days of conduct credit, and was ordered to pay a restitution fine of $600 (Pen. Code, 1202.4), another restitution fine of $600 suspended unless parole is revoked (Pen. Code, 1202.45), $1,370 in victim restitution, a $50 laboratory analysis fee (Health & Saf. Code, 11372.5, subd. (a)) plus $100 in penalty assessments, and a $150 drug program fee (Health & Saf. Code, 11372.7) plus $300 in penalty assessments.

This is the second appeal from the conviction of defendant Tracy Anthony Johnson. The case returns to us following a remand to the trial court for the limited purpose of conducting a hearing regarding the prosecutors peremptory challenge to a prospective juror. (People v. Johnson (Dec. 14, 2006, C042274) [nonpub. opn.] (hereafter Johnson I).)[1]The trial court conducted the hearing as directed, concluded that the prospective juror was excused for race-neutral reasons, and reinstated the judgment. In so doing, it rejected defendants claims that the hearing process violated his right to due process of law and he was prejudiced by the passage of time between the 2002 voir dire and the 2007 hearing. In this appeal, defendant renews his claim that he is entitled to a new trial because of Wheeler/Batson error (People v. Wheeler (1978) 22 Cal.3d 258 (hereafter Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (hereafter Batson)). Court affirm the judgment.

A jury convicted Ana M. Garibay of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)) and one count of hit and run with injury (Veh. Code, 20001, subd. (a)). The jury also found true allegations that Garibay fled the scene of the crime (Veh. Code, 20001, subd. (c)) and inflicted serious bodily injury in the course of committing a felony (Pen. Code, 12022.7, subd. (a), 1192.7, subd. (c)(8)). The trial court sentenced Garibay to 18 years eight months in state prison. On appeal, Garibay challenges her convictions and sentence. She contends that her convictions are invalid because the trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2006), CALCRIM No. 224, which references the defendant's "innocence," as opposed to the "constitutionally correct terminology" of the government's failure to prove guilt beyond a reasonable doubt. Garibay contends that her sentence is invalid because the trial court: (i) relied on an inapplicable rule of court[2]in denying her request for probation; (ii) failed to strike the great bodily injury enhancement findings; and (iii) violated her Sixth Amendment right to a jury trial by relying on aggravating factors, including her "unsatisfactory" performance on probation, to impose an upper term. For the reasons discussed below, Court conclude that Garibay's challenge to her convictions is without merit, but she is correct that resentencing is required.

A jury convicted Carlos Figueroa of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), possession of heroin (id., 11350, subd. (a)) and possession of cocaine (ibid.). The jury acquitted Figueroa on the charge of possession of methamphetamine for sale. The trial court sentenced Figueroa to three years in prison.
Figueroa appeals, contending that his convictions and sentence are invalid. He argues that his convictions must be reversed because the trial court erroneously instructed the jurors that they could consider a defendant's prior felony conviction in evaluating witness credibility despite the fact that Figueroa did not testify and no evidence was presented of his criminal record. Figueroa also contends that his sentence is invalid because the trial court imposed an upper term sentence based on facts found by the trial court and not the jury, violating his constitutional rights under the Sixth Amendment. court conclude that Figueroa's contentions are without merit and affirm.