CA Unpub Decisions

A jury convicted appellant Daniel Joseph Pinedo of assault with a deadly weapon, attempted murder, shooting from a vehicle, and other crimes. On appeal Pinedo argues that the trial courts use of his prior sustained juvenile petition to impose a sentence under the Three Strikes law violated his federal constitutional rights to a jury trial and due process. Pinedo also contends he is entitled to 10 more days of presentence credit. Court conclude the trial court properly used Pinedos prior juvenile adjudication as the basis for a strike finding. He is, however, entitled to additional presentence credit.

Plaintiff and appellant Beverly Belletich (plaintiff) filed a workers compensation claim and a civil complaint against her employer Carley, LLC (Carley). She settled her workers compensation case, releasing all claim [sic] whether civil, administrative, federal, or state against [Carley] . . . . In plaintiffs civil action, the trial court granted summary judgment in favor of Carley based on the release language of the settlement agreement in her workers compensation case. On appeal, plaintiff contends that her extrinsic evidence raised a triable issue of fact concerning the parties intent to release her civil claims as part of the workers compensation settlement. Court hold that the release language of the settlement agreement is not reasonably susceptible to the narrow interpretation urged by plaintiff. Court therefore affirm the judgment of the trial court.

Yvonne A. appeals from the orders of the juvenile court that terminated her parental rights to 12-year old Maurice A. (Welf. & Inst. Code, 366.26.). Court conclude that the record supports the courts conclusion that Maurice is adoptable and there is no evidence that Yvonnes and Maurices attorneys inadequately represented them. Accordingly, the order is affirmed.

Jason E. (father) appeals from the juvenile courts order terminating his parental rights to Jesse E. (minor). Father is a member of the Choctaw Nation of Oklahoma, and minor is eligible to be a member. According to father, the Choctaw Nation of Oklahoma participated in the dependency proceedings below and, until the very end, expressed a preference for legal guardianship or long term foster care as the minors permanent plan. However, at the end, the Choctaw Nation of Oklahoma consented to adoption as long as it was an open adoption. Father contends that this matter must be remanded for a new hearing under Welfare and Institutions Code section 366.26[1]because: (1) the Indian Child Welfare Act (ICWA) required that the Choctaw Nation of Oklahoma receive notice of a change in the law that was added by statute in 2006; i.e., the new Indian child exception to the termination of parental rights; and (2) the Choctaw Nation of Oklahoma consented to an open adoption even though there is no such thing, so its consent was void. Court find no error and affirm.

At issue in this case are two verified Probate Code sections 850 and 859 petitions brought by Keith Williams, as the administrator of the estates Willie Mae Williams (Willie Mae) and Ardis Williams, Los Angeles Superior Court, Case Nos. BP096765 and BP098203, respectively.[1] Appellants are David Behrend, Victor Roosen, and a trust, Trust Properties, LLC. Appellants were alleged in the petitions to have conspired with Sammy Ray Williams to deprive the estates of real properties. Appellants are alleged to have falsely claimed that Sammy was the child of Willie Mae and Ardis. Sammy is not related to decedents. Sammy was the son of a man named Ardis Lee Williams (Ardis Lee) who died in 1999. The appeal is from two orders denying two special motions to strike the petitions pursuant to Code of Civil Procedure[2]section 425.16. Court affirm the orders denying the special motions to strike the Probate Code sections 850 and 859 petitions.

Defendant Mark Suarez appeals from a judgment of conviction entered after a jury found him guilty of second degree burglary of a vehicle (Pen. Code, 459) and the trial court found true the allegation defendant suffered three prior convictions within the meaning of Penal Code section 1203, subdivision (e)(4), for one of which he served a prison term (id., 667.5, subd. (b)). The court sentenced defendant to state prison for the low term of 16 months, plus an additional year for the prior prison term. Court affirm.

Daniel R. (Daniel), who is the alleged father of Jacob R., appeals from the order terminating his parental rights[1]under Welfare and Institutions Code section 366.26.[2] Daniel contends notice of the proceedings was not given as required by the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. 1901-1963). Respondent Department of Children and Family Services (the Department) argues Daniel lacks standing to challenge notice under the ICWA. Court agree Daniel has no standing to assert the issue, because he is an alleged father who took no official action to acknowledge or establish his paternity. Accordingly, Court dismiss the appeal.

Anthony T. (Anthony) appeals from the orders denying his petition for reunification services under Welfare and Institutions Code section 388 and terminating parental rights to Kaliyah K. under section 366.26. Anthony contends the orders were an abuse of discretion because he was not given notice of the proceedings. As Anthony failed to show circumstances had changed such that Kaliyahs best interests would be promoted by the proposed reunification services, the orders were not an abuse of discretion. Accordingly, Court affirm.

A jury convicted defendant Mark Robert Curtwright and codefendant Raymundo Andres Fabila of second degree burglary (Pen. Code, 459), receiving stolen property (Pen. Code, 496, subd. (a)), and possession of burglary tools (Pen. Code, 466), and also convicted defendant Curtwright of possession of a dirk (Pen. Code, 12020, subd. (a)). The trial court sustained a strike allegation against defendant Curtwright and sentenced him to six years in prison. For codefendant Fabila, the court imposed a three-year term. On appeal, defendant Curtwright contends: (1) his upper term sentences violate the rule of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham); (2) the courts decision not to stay sentences pursuant to Penal Code section 654 is contrary to Blakely and Cunningham; (3) Californias determinate sentencing scheme cannot be reformed in light of Cunningham; (4) due process and double jeopardy prevents resentencing for Blakely and Cunningham error; (5) the court erred in not staying his sentences for possession of a dirk and possession of burglary tools; and (6) there are errors in the abstract and minute order. Codefendant Fabila contends on appeal that his upper term sentences violate Blakely and Cunningham and he must be resentenced to the middle term. We stay defendant Curtwrights sentence for possession of burglary tools, order the abstract modified, and otherwise affirm.

Defendant Jose Carlos Perez was convicted, after a jury trial, of murder of the first degree (Pen. Code, 187, subd. (a), 189).[1] The jury also found true enhancement allegations that (1) he personally used a firearm in committing the murder ( 12022.53, subds. (b), (c) & (d)); and (2) he was released on bail at the time of the murder ( 12022.1). Sentenced to state prison for life without possibility of parole and a consecutive term of 25 years to life, he appeals, contending that the trial court erred in denying his motion for a new trial on the ground of misconduct of a juror in concealing bias during jury selection. Court affirm the judgment.

Jonathan W., father of Shelby W. (the minor), appeals from the judgment of disposition adjudging the minor a dependent and placing her out of the home in relative care. (Welf. & Inst. Code, 358, 360, 395.) Appellant contends substantial evidence did not support the courts exercise of jurisdiction or the order removing the minor from the home. Court affirm.

Defendant Mario Humberto Angulo was convicted by a jury of first degree murder (Pen. Code, 187, subd. (a)), shooting from a motor vehicle (id., 12034, subd. (d)), active participation in a criminal street gang (id., 186.22, subd. (a)), and possession of a firearm by a prohibited person (id., 12021, subd. (e)). The jury also found that, in connection with the first two offenses, a principal discharged a firearm causing great bodily injury (id., 12022.53, subds. (d)&(e)) and the crimes were committed for the benefit of a criminal street gang (id., 186.22, subd. (b)(1)). Finally, on the murder offense, the jury found defendant personally discharged a firearm (id., 12022.53, subd. (c)).
Defendant was sentenced to 25 years to life for the murder plus a consecutive term of 25 years to life on the enhancement for discharge of a firearm causing great bodily injury. He also received concurrent middle terms of two years each for the other three offenses.
Defendant appeals, contending his Confrontation Clause rights were violated when the trial court admitted testimonial hearsay on the issue of whether the crimes were committed to benefit a criminal street gang. Court find no prejudicial error and affirm the judgment.

Having obtained a certificate of probable cause (Pen. Code, 1237.5[1]), defendant Cornelius Sladariu appeals his sentence following his no contest plea and conviction of transporting methamphetamine (Health & Saf. Code, 11379), receiving stolen property ( 496), and failing to appear in court ( 1320). Court reject defendants constitutional challenge to his upper term sentence. Court nevertheless remand for resentencing due to improper use of prior prison terms as both aggravating factors and enhancements. The People concede an error in presentence conduct credit.

Defendant Richard Mark Cordero had several drinks at a friends house and then drove a friend into town. On the way, defendant struck a pedestrian, who tumbled over the hood of the car and onto the ground where he lay bleeding heavily from the head. Although defendant did not stop, nor did he report the incident to the authorities, his passenger contacted police the next day to tell them what happened. Defendants car was located at a muffler and glass shop shortly thereafter. The windscreen was broken inward on the drivers side and scraps of cloth and human hair were found amongst the shards. Defendant called police two days after the incident and denied any involvement, but said he intended to surrender in a couple of days after spending time with his family. Defendant was arrested later that day.
Having undertaken an examination of the entire record, Court find no arguable error in favor of defendant.