CA Unpub Decisions

A jury found defendant guilty of possessing methamphetamine for sale (Health & Saf. Code, 11378) (count 1), transporting methamphetamine (Health & Saf. Code, 11379) (count 2), being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a)) (count 3), and driving without a license (Veh. Code, 12500, subd. (a)) (count 4). As to counts 1 and 2, the jury found true that defendant possessed more than one kilogram of methamphetamine (Health & Saf. Code, 11370.4, subd. (b)(1)) after having been previously convicted of possessing narcotics for sale (Health & Saf. Code, 11370.2, subd. (c)). Defendant was sentenced to a total term of six years in state prison. On appeal, defendant contends (1) the trial court prejudicially erred in admitting evidence of his prior conviction for possessing methamphetamine for sale without sanitizing the nature of the prior conviction by removing the sale reference, and (2) the abstract of judgment should be amended to reflect the proper sentence on the weight enhancement attached to count 2. Court agree with the parties that the abstract of judgment must be modified but reject defendants remaining contention.

A jury found defendant guilty of attempted carjacking (Pen. Code, 664/215), attempted robbery (Pen. Code, 664/211), and vandalism that caused more than $400 in damages (Pen. Code, 594, subd. (b)(1)).[1] Defendant admitted suffering three prior felony convictions that resulted in prison terms. ( 667.5, subd. (b).) The trial court sentenced defendant to state prison for a term of six years 10 months.[2] Defendant contends his sentence for vandalism must be stayed pursuant to section 654, because that conviction resulted from the same indivisible course of conduct as the carjacking conviction. Additionally, defendant comments upon errors contained in the abstracts of judgment for the instant case (case No. RIF130518) and associated probation violation cases (case Nos. RIF127978 & SWF005925). Court affirm the judgment with directions.

A jury found defendant guilty of corporal injury upon a former cohabitant (Pen. Code, 273.5, subd. (e)(2))[1](count 1) and kidnapping ( 207, subd. (a)) (count 2). In a bifurcated hearing, defendant admitted that he had sustained two prior prison terms. ( 667.5, subd. (b).) Defendant was sentenced to a total term of seven years in state prison. On appeal, defendant contends (1) the trial courts instruction to the jury removing the element of traumatic condition from the jurys consideration violated his constitutional rights; (2) his sentence on count 1 should have been stayed pursuant to section 654, as count 1 arose out of the same course of conduct as count 2; and (3) there was insufficient evidence to sustain his conviction for the corporal injury count under section 273.5, subdivision (e)(2), as there was no evidence that he violated that subdivision. Because there was no evidence of a qualifying prior conviction as required by subdivision (e)(2) of section 273.5, the judgment must be modified to reflect a finding of guilty under subdivision (a) of section 273.5. Court reject defendants remaining contentions.

On February 4, 2004, defendant and appellant Alan Vincent Betlach was charged in a felony complaint as follows: (1) violation of Penal Code[1]section 422, criminal threats (count 1); (2) violation of section 273.5, subdivision (a), corporal injury to spouse/cohabitant/childs parent with a prior conviction (count 2); (3) violation of section 273a, subdivision (a), child endangerment (count 3); and (4) violation of section 591, cutting a utility line (count 4). As to count 2, the complaint also alleged that defendant suffered a prior conviction of section 273.5, subdivision (a). The complaint further alleged that defendant suffered a prior conviction of section 422, criminal threats, a serious or violent felony.
The judgment is affirmed.

A jury found defendant guilty of assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1))[1](count 1) and battery causing serious bodily injury ( 243, subd. (d)) (count 2). Defendant thereafter admitted that he had sustained a prior strike conviction ( 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1)), a prior serious felony ( 667, subd. (a)), and a prior prison term ( 667.5, subd. (b)). Defendant was sentenced to a total term of 11 years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain the jurys finding that he inflicted serious bodily injury; (2) the jury instruction on the definition of serious bodily injury (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3160) does not accurately state the law relating to serious bodily injury; (3) his concurrent sentence on count 1 should have been stayed pursuant to section 654; (4) the trial court prejudicially erred when it reduced his presentence conduct credits by fifteen percent; and (5) the trial courts calculation of his presentence conduct credits is contrary to the plain language of the statue. Court agree with the parties that count 1 should have been stayed pursuant to section 654, but reject defendants remaining contentions.

A jury found defendant guilty of willful, deliberate, and premeditated attempted murder (Pen. Code, 664/187, subd. (a))[1](count 1); corporal injury to a spouse resulting in a traumatic condition ( 273.5, subd. (a)) (count 2); assault with a deadly weapon ( 245, subd. (a)(1)) (count 3); two counts of felony child abuse likely to produce great bodily injury or death ( 273a, subd. (a)) (counts 4 & 5); and maliciously tampering with a telephone line ( 591) (count 6). As to counts 1, 2, and 3, the jury found true that defendant had personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e). In addition, as to counts 1, 2, 4, and 5, the jury found true that defendant had used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1). Defendant was sentenced to a total term of 20 years 4 months to life with credit for time served. On appeal, defendant contends (1) there was insufficient evidence to support the jurys finding that the attempted murder was deliberate and premeditated; (2) there was insufficient evidence to sustain the jurys verdict on count 6; (3) the prosecutors argument and the jury instruction concerning count 6 misled the jury; (4) in the alternative, punishment on count 6 should have been stayed pursuant to section 654; and (5) his sentence on count 2, as well as the enhancement allegations attached to that count, should have been stayed pursuant to section 654, as the attempted murder and spousal injury were pursuant to a single objective. The People contend that the courts minute order and abstract of judgments must be corrected to reflect the oral pronouncement of judgment. Court agree with the parties that defendants sentence on count 2 should have been stayed pursuant to section 654; however, Court reject defendants remaining contentions.

Ricky M. (Father) appeals from a Welfare and Institutions Code section 366.26[1]hearing wherein his parental rights to R.M. (R.) and M.M. (M.) were terminated.[2] Fathers sole claim on appeal is that there was insufficient evidence that notice was given as required by the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA) and related federal and state law.
Court agree that that there was insufficient evidence of even substantial compliance with the ICWA notice requirements. Accordingly, the appropriate appellate remedy is a conditional reversal and limited remand. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704-710; In re Jonathon S. (2005) 129 Cal.App.4th 334, 342-343.)

Defendant and appellant Mary Lou F. (mother) is the natural mother of A.P., T.F. and S.F. The instant appeal concerns only the order terminating parental rights as to S.F. Mother contends that she did not receive proper notice of the selection and implementation hearing as to S.F., and that plaintiff and respondent Riverside County Department of Public Social Services (DPSS) had failed to comply with the provisions of the Indian Child Welfare Act (ICWA). Court affirm.

A Welfare and Institutions Code section 602, subdivision (a), petition charged minor Robert H. with three counts of possessing a weapon on school grounds, in violation of Penal Code section 626.10, subdivision (a) (counts 1-3). After the juvenile court denied minors motion to suppress evidence, the trial court granted the Peoples motion to reduce counts 1 and 2 to misdemeanors, and to dismiss count 3. Thereafter, minor admitted the allegations in counts 1 and 2. Minor was granted probation. On appeal, minor contends that the juvenile court erred in denying his motion to suppress. For the reasons set forth below, Court affirm the judgment.

Defendant Michael Rodney Valdez was convicted of various crimes arising out of three actions consolidated for trial. In Case No. 06CM0219, the jury found defendant guilty of one count of battery resulting in serious bodily injury (Pen. Code,[1] 243, subd. (d)), one count of resisting arrest resulting in serious bodily injury ( 148.10, subd. (a)), and two counts of resisting arrest ( 148, subd. (a)(1)). The jury deadlocked on one count each of attempted robbery, making criminal threats, and attempting to take a firearm from a peace officer. At sentencing, defendant pled no contest to the count of making criminal threats ( 422), and the other two counts were dismissed. In Case No. 06CM2907, the jury found defendant guilty of willfully failing to appear in court in connection with the felony charges in Case No. 06CM0219 ( 1320.5). The jury also found true the enhancement allegation that at the time of his failure to appear, defendant was released from custody on bail within the meaning of section 12022.1. Finally, in Case No. 05CM4418, the jury found defendant guilty of misdemeanor diversion of construction funds ( 484b). Defendant was sentenced to a total prison term of six years and four months.
The judgment is affirmed.

A jury convicted defendant Cedric Howard Jackson of 8 counts of conspiracy to commit robbery, 13 counts of second degree robbery, 1 count of aggravated assault, and 8 counts of street terrorism. It also found true defendant had committed 22 of the crimes for the benefit of a criminal street gang and that a principal used a firearm in 12 of the offenses. The court sentenced him to 30 years and 8 months in state prison. Defendant appeals, contending the evidence was insufficient to prove the gang allegations and five of the crimes. We agree with the latter and reverse his convictions on counts 1 through 5, which moots defendants contention the court erred in imposing the upper term on count 2. Court also agree the court erred in imposing enhancements both under Penal Code section 186.22, subdivision (b) (all further statutory references are to this code) and section 12022.53, and remand the case for resentencing. In all other respects, the judgment is affirmed.

Jaime S., the alleged father of Roberto S., age three, appeals from an order terminating his parental rights. Father contends the evidence supported application of the parent-child benefit exception. (Welf. & Inst. Code, 366.26, subd. (c)(1)(B)(i); all further statutory references are to this code.) Since substantial evidence supports the juvenile courts rejection of the exception, Court affirm the order.

At issue in this appeal is a post-judgment order for costs and attorney fees, made pursuant to a provision of the California Civil Discovery Act.[1] The order was imposed on defendant, California Micro Devices, Inc., as a consequence of its denial of certain requests for admissions propounded by the plaintiff, Charles F. Bellavia.
In support of its bid for reversal, defendant makes three arguments on appeal: (1) the statute does not apply in the procedural context of this case, a judicial arbitration at which the plaintiff did not prove the subject matter of the admissions; (2) the statute does not apply because defendant reasonably believed that it would prevail on the matters addressed in the requests for admissions; and (3) even assuming that the statue applies here, the amount awarded was excessive.
Based on the unambiguous record before us, Court agree in part with defendants first contention, that plaintiff did not prove the matters at issue in the requests for admissions, which is required to support an award under the statute. Court therefore reverse.

Defendant, Erik Santos appeals from a judgment entered after he pleaded no contest to five counts of lewd and lascivious acts on a child (Pen. Code, 288, subd. (b)(1).) On January 26, 2007, pursuant to a plea agreement, the trial court sentenced the defendant to a 40 year determinate term. On March 9, 2007, the defendant filed a notice of appeal challenging the validity of the plea and requesting a certificate of probable cause. However, trial counsel failed to state any legal grounds for seeking the certificate, so on March 19, the trial court denied the certificate of probable cause and deemed the appeal inopperative. Thereafter, on April 24, 2007, the defendant, on his own, attempted to file another notice of appeal and request for certificate of probable cause alleging that there was no admissible evidence against him and that his plea was not knowing or intelligent because the trial judge had threatened him with lethal injection if he did not plead guilty. The trial court rejected this notice of appeal and request for certificate of probable cause as untimely.
The judgment is affirmed.