CA Unpub Decisions

On February 24, 2005, an information was filed in the Superior Court of Stanislaus County charging appellant Jimmy Edward May with count I, receiving a stolen vehicle (Pen. Code,[1] 496d) with a prior conviction for auto theft (Veh. Code, 10851) within the meaning of section 666.5; count II, possession of methamphetamine (Health & Saf. Code, 11377); and count III, misdemeanor possession of a hypodermic needle (Bus. & Prof. Code, 4140).[2] As to counts I and II, it was further alleged appellant suffered one prior strike conviction ( 667, subds. (b)-(i)) and served five prior prison terms ( 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations. On May 2, 2005, appellant's jury trial began. On May 3, 2005, appellant was found guilty as charged. On May 4, 2005, appellant waived a jury trial on the special allegations, and the court found all special allegations true. On May 31, 2005, appellant filed a motion to dismiss the prior strike conviction. On June 7, 2005, the prosecutor filed a statement in aggravation. On June 10 and 30, 2005, the court conducted the sentencing hearing, denied appellant's motion to dismiss, denied probation, and sentenced appellant to an aggregate term of 12 years four months: as to count I, the court imposed the upper term of three years, and doubled that term to six years as the appropriate second strike sentence; as to count II, the court selected the midterm of two years, doubled it to four years as the second strike term, and imposed a consecutive term of one year four months (one third the doubled midterm); five consecutive one-year terms for the prior prison term enhancements; and a concurrent term of six months for the misdemeanor conviction in count III. On July 21, 2005, appellant filed a timely notice of appeal. The judgment is affirmed.

On September 16, 1995, appellant, Jesus Gonzalez Mosqueda, fired a rifle twice at his estranged wife and Ross Sessions outside the Westfair Lounge in Bakersfield, striking his wife in the abdomen. Mosqueda then struck Sessions in the head with the rifles wooden stock as Sessions attempted to take the rifle away from him. Mosqueda fled and was not apprehended until July 7, 2004. On appeal, Mosqueda contends that only a valid arrest warrant tolls the statute of limitations. He further contends that the 1995 warrant for his arrest was not valid because although it contained the date of its issuance, it did not contain the exact time of its issuance. Thus according to Mosqueda the court erred when it found that the warrant tolled the statute of limitations with respect to the assault charges. Court affirm.

Plaintiff appeals from a judgment entered against it in this action arising out of contractual dispute. Judgment was entered after defendants motion for summary judgment was granted. Plaintiff also appeals from a subsequent order awarding defendant, the Trustees of California State University, attorneys fees of $127,972 pursuant to statute. Court reverse the judgment in favor of the Foundation of the California State University and affirm the judgment in favor of the Trustees of California State University.

Defendant Elizabeth Fernandez Torres was convicted of second degree murder for the stabbing death of Francisco Garcia. On appeal, she contends the trial court erred by refusing to instruct on unreasonable (imperfect) self defense and precluding the defense from arguing the theory to the jury. Court conclude the evidence was insufficient to justify instruction or argument on unreasonable self defense. Accordingly, Court affirm.

Appellant Jonathan S. is the biological father of dependent child Holly M., whom the Kern County Superior Court freed for adoption (Welf. & Inst. Code, 366.26) in September 2007. He contends the court wrongfully denied him any opportunity to exercise his parental rights before those rights were terminated. On review, Court disagree and affirm.

Jesse Saucedo appeals from the judgment sending him to prison for 9 years, 4 months following his guilty plea to possession of methamphetamine for sale, possession of heroin and street terrorism.[1] (See Health & Saf. Code, 11378, 11350, subd. (a); Pen. Code, 186.22, subd. (a).) There was also a criminal street gang enhancement attached to the drug offenses. (See Pen. Code, 186.22, subd. (b).) The maximum penalty for these offenses was nine years, four months, which he acknowledged verbally in court at the time of his guilty plea and in writing on the Tahl form.[2] However, he was hoping to receive the indicated sentence of a new grant of formal probation with the condition of a one-year term in jail, a lenient sentence dependent on his compliance with one very detailed prerequisite laid out in the plea agreement. Saucedo failed to comply with that prerequisite, receiving the alternative sentence of the maximum penalty as set out in the plea agreement. Saucedo contends the trial court erred when it denied his motion to withdraw the guilty plea prior to judgment. The trial court instead enforced the plea agreement, imposing the full maximum penalty because Saucedo committed a new offense during the period in which he was released from custody prior to sentencing. The Attorney General emphasizes that this issue on appeal is an attack on the validity of the plea agreement, which requires the procurement of a certificate of probable cause before review on appeal. (See Pen. Code, 1237.5;[3] Cal. Rules of Court, rule 8.304 (b)(1) & (4).) Court agree.

In her appeal from a judgment on reserved issues in a marital dissolution proceeding, Jayne Mathisen (Jayne) claims the court erred with respect to its rulings on the date of separation and the characterization of a piece of real property acquired after separation. In addition, she makes a vague argument concerning the division of the marital residence. In his cross-appeal, Steven Mathisen (Steven) claims the court erred in failing to value the goodwill of a car rental agency.
Court do not reach the substance of the appeals, which are hereby dismissed for lack of jurisdiction. The judgment on reserved issues from which the parties appeal says that certain issues are unresolved and are bifurcated for later resolution. Consequently, the parties were required to obtain a certificate of probable cause, pursuant to Family Code section 2025 and California Rules of Court, rule 5.180, in order to permit appellate review at this time. Since they failed to do so, we cannot hear the appeal. The parties have only themselves to blame if the judgment they prepared did not say what they meant. Moreover, although both parties beg this court to hear the appeal, one party always has to lose. The loser will argue that this court had no jurisdiction to hear the appeal, inasmuch as argument concerning the courts jurisdiction is never waived. Most importantly, neither the parties nor this court can create jurisdiction where there is none. (In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1432.)

After the trial court denied defendant Jesus Menchacas motion to suppress evidence, he pleaded guilty to possessing cocaine and having a prior felony conviction. Defendant then moved to dismiss his prior conviction. (People v. Superior Court(Romero) (1996) 13 Cal.4th 497.) The court denied the motion and sentenced defendant to a total of 32 months in prison, consisting of double the low term of 16 months. Defendant appeals; his lawyer found no issues on which to base an appeal. Court reviewed the record, find no error, and affirm.

Angela O. appeals from the juvenile courts judgment made at the Welfare and Institutions Code section 366.26[1]hearing (permanency hearing). The juvenile court terminated her parental rights to her six-year-old daughter A.O. She argues the court should have applied the sibling exception to termination of parental rights ( 366.26, subd. (c)(1)(B)(v)). Alternatively, she argues the Orange County Social Services Agency (SSA) should be equitably estopped from arguing against the sibling exception because a social worker failed to facilitate visits between A.O. and her two older sisters. Court find no error and affirm the judgment.

In this dependency proceeding, the juvenile court entered jurisdictional and dispositional orders declaring three siblings to be dependent children and removing them from their parents home.[1] The court found that the oldest child, an eight-year-old girl, had been sexually abused, based in part on evidence that she was suffering from chlamydia, a sexually transmitted disease. The parents later petitioned for modification, based on newly discovered evidence of errors at the laboratory that performed their daughters chlamydia test. In this appeal, the parents challenge the juvenile courts refusal to modify its earlier orders, asserting two grounds: that they presented substantial evidence in support of the petition and that they were denied a fair hearing. For reasons explained below, Court reject the parents arguments. Court therefore affirm the juvenile courts order.

Plaintiff Alicia Lopez Laue appeals from an order denying her request for a restraining order against defendant Irma Lopez Zamudio. Plaintiff contends that the trial court erred because there was sufficient evidence to support the granting of the order. Court find no error and affirm.

A modification decision.

Antoinette M., mother of L., the child at issue here, appeals from a juvenile court order terminating her parental rights. Mother contends that termination of her parental rights without a finding by clear and convincing evidence that the child was adoptable was a violation of her due process rights. She argues that there is insufficient evidence that L. was likely to be adopted within a reasonable time. As we find that the record amply supports the juvenile courts findings and order, Court affirm the order terminating parental rights.

Rebecca B., the mother of the child in this juvenile dependency proceeding, challenges the order terminating her parental rights for the sole reason that notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) was not properly provided. Respondent Department of Family and Childrens Services (the Department) concedes the error, requests that the order terminating parental rights be reversed and that a limited remand be ordered to allow compliance with the ICWA in the juvenile court, and requests that the remittitur issue forthwith. Counsel for the child joins in the Departments request. Court agree that reversal and a limited remand is appropriate in this case.