CA Unpub Decisions

As the result of a gang-related shooting, Jonathan Gamez was charged by information with five counts of attempted willful, deliberate and premeditated murder (Pen. Code, 187, 664)[1]and five counts of shooting at an occupied motor vehicle ( 246).As to all counts, the information specially alleged firearm-use enhancements ( 12022.53, subds. (b), (c), (d) & (e)), and a criminal street gang enhancement ( 186.22, subd. (b)(1)(C)). According to the testimony at the preliminary hearing, Antonio Martinez IV, Angelo Martinez, Leonard Caudillo, Steven Martinez and Gerardo Zaragoza[2]were riding together in a car in Lennox. While stopped at the intersection of 111th Street and Inglewood Avenue, they were confronted by a group of men who appeared to be gang members. The men demanded to know where the occupants of the car were from (a frequent gang challenge), displayed gang hand signs and shouted they were from the Lennox 13 gang. One man in the group pulled out a gun, pointed it in the direction of the car and began shooting at the cars occupants from about 12 feet away. Two of the occupants were injured by the gun shots; one of them lost the sight in one of his eyes. Three of the car occupants, as well as other witnesses, identified Gamez as the shooter.

Tyrone F. (the father) and Mabel V. (the mother) appeal from an August 21, 2007 reinstated parental rights termination order (Welf. & Inst. Code,[1] 366.26) following the second of two limited remands for compliance with the notice requirements of the Indian Child Welfare Act. (25 U.S.C. 1901 et seq.) The juvenile court found there was adequate notice and the Indian Child Welfare Act did not apply. The parents contend there was, once again, noncompliance with the notice requirements. Court conclude substantial evidence supported the juvenile courts decision. Accordingly, Court affirm the parental rights termination order.

Mazjar Naemi appeals an order determining him to be a mentally disordered offender (MDO) pursuant to Penal Code section 2962 et seq., and recommitting him to the Department of Mental Health for treatment. On May 17, 2007, the Board of Prison Terms determined that Naemi was an MDO pursuant to the criteria of section 2962. As a condition of parole, it required him to accept treatment from the Department of Mental Health. Naemi filed a petition pursuant to section 2966, subdivision (b), to contest the decision. He waived his right to a jury trial, and a court trial followed. The order of commitment is affirmed.

Christina D., the mother, appeals from a July 19, 2007 reinstated parental rights termination order (Welf. & Inst. Code, 366.26) following a limited remand for compliance with the Indian Child Welfare Act. (25 U.S.C. 1901 et seq.) The mother contends there was, once again, noncompliance with the Indian Child Welfare Act notice requirements. Court affirm the parental rights termination order.

Petitioner, Jennifer S., seeks extraordinary writ review of a juvenile court order terminating reunification services and setting the matter for a permanency planning hearing. (Welf. & Inst. Code, 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) Court find sufficient evidence supports the juvenile courts finding that the Los Angeles Department of Children and Family Services (DCFS) made reasonable efforts to reunify petitioner with her daughter S.C. and therefore deny the petition.

A jury found Gary Gaston Spencer guilty of assault with a firearm (Penal Code, 245, subd. (a)(2); count 1) and discharge of a firearm in a grossly negligent manner ( 246.3; count 2). With respect to count 1, the jury found true that he personally used a deadly weapon ( 12022.5, subd. (a).) In bifurcated proceedings, the court found him guilty of being a felon in possession of a firearm ( 12021, subd. (c)(1); count 3.) The court sentenced him to seven years in prison as follows: the middle term of three years on count 1, plus the middle term of four years for the firearm enhancement; the sentence on counts 2 and 3 was imposed and stayed under section 654. Spencer contends the judgment should be reversed because the trial court erroneously: (1) denied his Batson/Wheeler motion[; (2) failed to instruct sua sponte regarding self defense; and (3) admitted into evidence, over his objection, testimony by Spencer's neighbor that she saw Spencer with a firearm approximately one month before he committed the charged crimes. Court affirm.

In April 2006, Leucadia Cares,[1]Andree Pyfer, and Ron Ranson (Leucadia Cares)[2]filed a petition for writ of mandate and complaint for declaratory and injunctive relief against respondent City of Encinitas (City) and real party in interest and respondent Barratt American, Inc. (Barratt). In its petition and complaint, Leucadia Cares claimed that the City violated its Municipal Code (Municipal Code) in granting a design review permit and a coastal development permit to Barratt for the development of nine single family residences. Leucadia Cares claimed that the City violated the Municipal Code by "allowing Barratt to measure the elevations of the residences from the finished grade rather than the original, natural grade."

A jury convicted Augustine Lopez of burglary (Pen. Code, 459)[1]and grand theft ( 487, subd. (a)). The court suspended imposition of sentence and placed Lopez on three-years formal probation with specific conditions. Lopez appeals the order granting probation, arguing the court abused its discretion and violated the separation of powers doctrine by delegating the decision of whether he needs to take antabuse and participate in anger management classes. Court affirm the order.

On November 28, 2006, Edgar Flores pleaded guilty under a plea agreement with the district attorney before Judge Timothy R. Walsh to one count of unlawfully taking a vehicle (Veh. Code, 10851, subd. (a)). In exchange for his guilty plea, the People agreed to dismiss a remaining charge of receiving a stolen vehicle (Pen. Code, 496d),[1]and agreed not to object to a sentence of local time, and to the grant of three years' summary probation subject to the condition of 180 days in local custody. Judge Walsh then suspended imposition of sentence and placed Flores on three years' summary probation. No probation report was requested. On February 27, 2007, the People alleged Flores violated his probation condition of breaking no laws, and petitioned for summary revocation of probation. The court summarily revoked probation[2]and set a formal probation revocation hearing for March 2, 2007. The hearing was continued to March 16, 2007, at which the People requested that the court determine the Vehicle Code section 10851, subdivision (a) offense to be a felony. At the May 11, 2007, hearing on the People's motion, Judge Kaneshiro stated the offense "was reduced by Judge Walsh to a misdemeanor at the time of sentencing . . . ." Judge Kaneshiro then continued the formal probation revocation hearing to allow the People to seek writ or appellate relief from her ruling.
The appeal is dismissed.

Daniel C. appeals the judgment terminating parental rights in the dependency case of Alyssa H. Daniel contends there is reversible error because the juvenile court and the San Diego County Health and Human Services Agency (the Agency) failed to inquire whether he had Indian heritage as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court dismiss the appeal.

Between 2005 and 2006, Patrice S. entered negotiated admissions to falsely identifying herself to a peace officer (Pen. Code, 148.9), resisting a public officer (Pen. Code, 148, subd. (a)(1)), both misdemeanors, and fleeing a peace officer while driving in willful and wanton disregard for the safety of persons and property (Veh. Code, 2800.2, subd. (a)), a felony. In 2007, the court committed Patrice to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). It set the maximum period of confinement at three years eight months and ordered AIDS testing. Patrice appeals, contending the maximum period of confinement is three years six months; the court erred by ordering AIDS testing; and her commitment to DJJ was unlawful. The People concede the first point and request that the case be remanded for the court to determine: (1) whether the facts of this case support AIDS testing pursuant to Health and Safety Code section 121060; and (2) whether to recall the commitment order. Appellant consents to a remand. Court accept the People's concession and remand the case.

Latanya Alexandria Meyers entered a negotiated guilty plea to one count of burglary (Pen. Code, 459), two counts of forgery (Pen. Code, 470, subd. (d)), and one count of unlawfully taking a vehicle (Veh. Code, 10851, subd. (a)). Under the terms of the plea agreement, Meyers received a stipulated two-year prison term. The plea agreement called for this two year prison term to run concurrent with the sentence Meyers was to receive for probation violations in two other cases.

Duke Boyett entered a negotiated guilty plea to burglary (Pen. Code, 459) and admitted he had a prior serious/violent felony or strike conviction (Pen. Code, 667, subds. (b)-(i)). The plea agreement called for a stipulated 32-month prison term and dismissal of superior court case number SCN188163. Boyett was sentenced to 32 months in prison as stipulated in the plea agreement.
The judgment is affirmed.

Christopher M. Skinner entered a negotiated guilty plea to receiving a stolen motor vehicle (Pen. Code, 496d) and admitted he had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The plea agreement called for a five-year stipulated prison term. Skinner was sentenced in accordance with the plea agreement as follows: the middle terms of two years plus one additional year for each prior prison term. The judgment is affirmed.