CA Unpub Decisions

A jury found appellant guilty of second degree murder and found true an enhancement for shooting a firearm from a motor vehicle. (Pen. Code, 187, 190, subd. (d).) The jury did not make findings as to the truth of two personal gun use enhancements. (Pen. Code, 12022.5, 12022.53.) The trial court sentenced appellant to a state prison term of 20 years to life. Appellant contends that the trial court erred in instructing the jury on second degree felony-murder, in instructing on aiding and abetting, and in refusing a defense request concerning instructions. Appellant further contends that the trial court erred in excluding certain gang evidence. Court affirm.

A jury convicted defendant of selling cocaine. (Health & Saf. Code 11352, subd. (a).) Prior to trial, defendant admitted the enhancement allegation that he had previously suffered a conviction for possession of cocaine base for sale. (Health & Saf. Code 11370.2/11351.5.)[1] The court struck the prior conviction and sentenced defendant to prison for four years, the midterm. On appeal, defendant contends that the trial court committed prejudicial error by (1) allowing evidence that defendant had participated in drug sales at the same location six years earlier; (2) failing to instruct the jury sua sponte that defendants out-of-court statements were admissions that should be viewed with caution; and (3) refusing to admit portions of the San Jose Police Departments Duty Manual. He argues that the cumulative effect of these errors requires reversal. He also challenges the correctness of the trial courts decision to uphold Officer Guerras claim of privilege as to the location of his surveillance post, and asks this court to review the sealed reporters transcript of the in camera hearing. Court affirm.

Defendant pleaded no contest to petty theft with a prior petty theft, a felony. (Pen. Code 484/666.)[1] As part of the negotiated disposition, a second count charging violation of Health and Safety Code section 11550 (being under the influence of a narcotic drug) and a prior strike allegation were dismissed, and defendant was promised a probationary sentence involving no more or less than nine months in the county jail. At sentencing, imposition of sentence was suspended, and defendant was granted three years formal probation on certain terms and conditions, including a nine-month county jail sentence with eight days credit for time served, and the payment of $300 in attorney fees. Defendants sole contention on appeal is that the record is devoid of substantial evidence to support the attorney fee order. Court agree.

Defendant Joseph Johnson pleaded no contest to inflicting corporal injury on a spouse (Pen. Code, 273.5, subd. (a))[1] and to injuring or obstructing telephone or cable lines ( 591). The trial court suspended imposition of sentence and placed defendant on probation, with various terms and conditions, including paying a probation supervision fee of $10 per month. On appeal, defendant contends the trial court erred in ordering him to pay the probation supervision fee as a condition of probation. Court agree and Court order the judgment modified accordingly.

Appellant, North Sea Foods, Inc. (NSF), leased a portion of a warehouse from respondent, CFM Partnership (CFM), for the purpose of operating a food processing business. Appellant, Peter Parineh aka Pooroushasb Parineh, signed the lease as the owner of NSF and as the guarantor. Although NSF took the building as is, CFM agreed to maintain the roof, exterior walls, and sprinkler system. However, the roof leaked and the fire safety systems were inadequate. As a result, NSF could not obtain proper permits for the building. CFM eventually went into receivership and sold the property to respondent, Real Equity Investment Group IV, LLC (REI).
As discussed below, the trial court correctly sustained demurrers without leave to amend to certain causes of action but erred in sustaining the demurrers without leave to amend to others. Accordingly, the judgment of dismissal will be reversed in part and affirmed in part.

In a second amended original Welfare and Institutions Code section 602, subdivision (a) petition, the minor, Marcos E., was charged with one count of corporal injury to a cohabitant (Pen. Code, 273.5, subd. (a)) and one count of felonious assault. (Pen. Code, 245, subd. (a).) In addition, it was alleged appellant inflicted great bodily injury during an act of domestic violence. (Pen. Code, 12022.7, subds. (a) & (e), 1192.7, subd. (c)(8).) A jurisdictional hearing was held with the juvenile court sustaining the petition as to felonious assault but finding the charge of cohabitant abuse to be not true. The special allegation of great bodily injury was also found to be true. The court declared the minor a ward of the court and released him to the custody of his parents. The maximum period of confinement was set at four years.

Cindy A. appeals from an order terminating her parental rights to her daughter, Autumn, and freeing the child for adoption. (Welf. & Inst. Code, 366.26.) She contends that the court abused its discretion in denying her petition for modification pursuant to section 388 and in failing to apply the beneficial parental relationship exception pursuant to section 366.26, subdivision (c)(1)(A). Finding no abuse of discretion, Court affirm the order.

Petitioner Yoselin C. (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, Barbara J. (the child) and setting a Welfare and Institutions Code[1]section 366.26 hearing. Mother argues that the juvenile court erred in denying her reunification services under section 361.5, and in finding that the Department of Childrens Services (the department) had provided her with reasonable reunification services, pursuant to the courts order at the detention hearing. Court deny the writ petition.

Appellant Michael Foster is an inmate at Corcoran State Prison (Corcoran). He was tried twice on a charge of battery by a confined inmate on a nonconfined person, correctional officer Matthew McVay. (Pen. Code, 4501.5.)[1] At both trials, McVay testified that while he was counseling appellant on Thanksgiving Day in 2004 for being in the yard at an improper time appellant struck him on the side of the head. Appellant denied striking McVay, testifying that it was McVay who hit and kicked him. Judge Lynn Atkinson presided over the first trial. A mistrial was declared after the jurors deadlocked seven-to-five in favor of a guilty verdict. Judge James LaPorte presided over the second trial. Appellant was found guilty by the jury in the second trial; also, the jury found true two prior strike allegations. ( 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant was sentenced to 25 years to life, to be served consecutive to a previously imposed term in an unrelated case.
These issues are properly resolved on habeas corpus.

On October 16, 2003, the Kern County District Attorney filed a complaint charging appellant with one count of arson (Pen. Code, 451, subd. (b)), a serious felony ( 1192.7, subd. (c)(14)).
On the same date, appellant was arraigned and pleaded not guilty. On October 28, 2003, the court granted appellants motion to suspend criminal proceedings for a determination of her mental competency (Pen. Code, 1368). On November 25, 2003, the court granted a defense motion for appointment of a second doctor to evaluate appellant. The judgment is affirmed.

Defendant Eric Michael Coleman was convicted of robbery and attempted voluntary manslaughter for shooting a resident while committing a home-invasion robbery. We reversed the trial courts denial of defendants post-conviction motion for substitution of counsel. On remand, defendants substituted counsel filed a motion for a new trial based on alleged ineffective assistance of trial counsel. The motion was denied and defendant now appeals again. Court affirm.

A modification decision.

A complaint filed May 11, 2007, charged appellant Martin Morales Cruz, Jr., with assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1); count 1)[1]and fighting in public with the specific intent to promote a criminal street gang of which Cruz was a member ( 186.22, subd. (d); count 2). The complaint further alleged as to count 1 that the assault was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), and as to both counts that Cruz had served a prior prison term ( 667.5, subd. (b)), and had a prior conviction for a serious felony constituting a strike ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

On May 23, 2007, Cruz withdrew his previous not guilty plea and pled no contest to count 2 pursuant to People v. West (1970) 3 Cal.3d 595, and the remaining count and allegations were dismissed. As part of the plea, the parties stipulated to a three year prison sentence. Cruz waived preparation of a pre-sentence report and requested the court impose an immediate sentence with a section 1203, subdivision (c) report to follow. The court committed Cruz to prison for a three year term and awarded him 21 days credit for time served. The court ordered Cruz to pay a $20 court security fee and imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b) and imposed but stayed a $200 restitution fine pursuant to section 1202.45.
On July 16, 2007, Cruz filed a notice of appeal in which he stated he was challenging the validity of the plea or admission and requested the court issue a certificate of probable cause (Pen. Code, 1237.5). The court denied that request. On September 26, 2007, this Court granted Cruzs application to construe the notice of appeal to include the language This appeal is based on the sentence or other matters occurring after the plea. Cruzs appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Cruz has not responded to this courts invitation to submit additional briefing.

Petitioner, in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1]as to her daughter H. Court deny the petition.