CA Unpub Decisions

Appellant Jesus Torres was convicted after jury trial of assault with a firearm on a peace officer, resisting an executive officer, being a felon in possession of a firearm, possession of methamphetamine and cocaine for sale, giving false information to a police officer and driving without a valid license. A personal arming allegation was found true in connection with the drug possession offense. (Pen. Code, 245, subd. (d)(1); 69; 12021, subd. ( c)(1); 148.9, subd. (a); 12022, subd. (c); Health & Saf. Code, 11378; Veh. Code, 12500, subd. (a).) He was sentenced to an aggregate term of eight years imprisonment. Appellant argues that the court erred by excluding the testimony of a prospective defense witness and by denying his motion to release juror identifying information. Neither argument is persuasive; Court affirm.

On February 2, 1981, the California Department of Veterans Affairs conveyed the real property commonly known as 328 West Andrix Street in Monterey Park to Arthur S. and Christina Valenzuela (Christina),[2]the conservatee in the instant appeal. On May 24, 2001, the Valenzuelas recorded a grant deed conveying that real property to themselves and to Arturos nephew, appellant Hector J. Holguin, and to one Adeline Salinas (presumably Christinas niece), all as joint tenants. Arturo Valenzuela, husband of conservatee Christina Valenzuela, passed away on April 27, 2003. In his last will and testament dated May 24, 2001, Arturo appointed his nephew, Hector Holguin, as his personal representative. Pursuant to his will, Arturo devised half of his real property to Holguin and instructed: My wife to remain in the property for as long as she is able to. In July 2003, appellant Hector Holguin used Christinas funds to open two Wells Fargo Bank Accounts in her name. He opened a checking account with a $1,777.14 deposit and arranged for direct deposit of her $984 monthly Social Security check into the account. He also opened a market rate savings account with a deposit of $5,096.28. Appellant had access to the checking account via an automatic teller machine (ATM) card. Beginning in July 2003, appellant made multiple withdrawals from the checking account.
The appeal from the judgment entered on September 26, 2006, is dismissed. The judgment (the Order Denying Motion to Vacate Judgment entered on May 17, 2007) is affirmed.

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule)) from the juvenile courts order issued at a post-permanency plan review hearing (Welf. & Inst. Code, 366.3) (review hearing) at which the court set a section 366.26 hearing as to his son S. Court conclude his petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court dismiss the petition as facially inadequate.

A modification decision.

Blanca R. appeals from the termination of parental rights to her son, Mario R. She contends the juvenile court erred in denying her petition under Welfare and Institutions Code section 388 without a hearing and in failing to make proper inquiries under the Indian Child Welfare Act (25 U.S. C. 1900 et seq.) (ICWA). Court affirm.

Defendant Kristina Dawn Lopez appeals a judgment resulting from her conviction after trial of torture (Pen. Code, 206) ; robbery ( 211); assault my means of force likely to cause great bodily injury ( 245, subd. (a)(1)); false imprisonment ( 236); kidnapping ( 207, subd. (a)); and assault with a firearm ( 245, subd. (a)(2)). Lopez committed the crimes with her codefendant, Jerry Michael Bitney, who was also convicted during their joint trial, and filed a separate appeal in this court. Defendant asserts she was denied her due process rights due to prosecutorial misconduct, and that the trial court erred in denying her motion for a mistrial.

Defendant David Kershaw Fickes returns to this court following our reversal of his conviction for first-degree burglary and other charges based on the prosecutions improper joinder of two cases for trial. Upon receipt of the case following this courts reversal, the prosecution severed the cases, dismissed the lesser peeking charges, and proceeded again with the first-degree burglary charge. Following a motion to suppress that was denied, defendant pleaded guilty to the charges and admitted the prior allegation. Defendant returns to this court on appeal following denial of his motion to suppress and guilty plea. In this second appeal, defendant asserts the trial court erred by: (1) denying his motion to suppress; (2) failing to grant his request to renew his motion to suppress based on new evidence; (3) improperly using his prior conviction in aggravation and as a separately sentenced enhancement; and (4) ordering defendant to pay attorney fees without a hearing to determine is ability to pay.
The judgment is reversed.

Defendant William Karl Olsen appeals from an order retroactively committing Olsen to an indeterminate term of commitment (Welf. & Inst. Code, 6601.4, subd. (a))[1] as a sexually violent predator under the Sexually Violent Predator Act (SVPA) ( 6600 et seq.). Olsen was first committed to a two-year term in October 2000, and the commitment was extended for additional two-year terms thereafter. In 2007, while a petition to extend Olsens most recent term of commitment was pending, the People brought a motion to retroactively convert Olsens first commitment in October 2000 from a two-year term of commitment to an indeterminate term, pursuant to amended section 6604.1, subdivision (a), which provides that an indeterminate term begins on the date the court issues the initial order of commitment. The trial court agreed with the Peoples interpretation of section 6604.1, subdivision (a), and ordered Olsen committed to an indeterminate term. The trial court imposed the indeterminate term retroactive to the first order committing Olsen in October 2000, and without a trial on the pending petition to extend Olsens most recent term of commitment. Olsen contends that the indeterminate term of commitment in section 6604.1, subdivision (a) may not be applied retroactively and that the SVPA, as amended, is unconstitutional. For reasons that Court explain, Court conclude that an indeterminate term of commitment imposed pursuant to section 6604.1 may not be imposed retroactively. Therefore, Court reverse the order. In view of our reversal of the order, Court do not reach the issue of whether amendments to the SVPA that provide for an indeterminate term of commitment (see 6604, 6604.1, subd. (a)) are constitutional.

Umeka Payne appeals from the judgment entered following her conviction by a jury on one count of possession for sale of cocaine base (Health & Saf. Code, 11351.5)[1]and her admission in a bifurcated proceeding of a prior conviction for the same offense ( 11370.2, subd. (a)). Payne contends the trial court failed to advise her of her constitutional rights to a trial by jury, to remain silent and to confront the witnesses against her before taking her admission of the prior conviction. She also contends, and the People agree, the minute order reflecting the sentence and abstract of judgment fail to include her earned presentence custody credits. Court modify the judgment to accurately reflect Paynes presentence custody credit and, as modified, affirm the judgment.

A modification decision.

A jury convicted William Lee Green (appellant) of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)) (count 1); carrying a loaded firearm ( 12031, subd. (a)(1)) (count 2); and possession of cocaine base for sale (Health & Saf. Code, 11351.5) (count 3). With respect to all counts, the jury found true the allegation that appellant had committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members. ( 186.22, subd. (b)(1).) The trial court found true the allegation that appellant had suffered two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a).
The trial court sentenced appellant to nine years in state prison. The sentence consisted of the midterm of four years in count 3 with an additional three years pursuant to Health and Safety Code section 11370.2, subdivision (a) and an additional two years for the gang enhancement. In count 2, the court imposed a concurrent midterm of two years and the low term of two years on the gang enhancement. The court stayed the sentence and gang enhancement in count 1 pursuant to section 654. Appellant appeals on the ground that the true finding on the gang enhancement was not supported by substantial evidence, and he therefore suffered a violation of his right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution.

In January 2005, plaintiff Karla De La Torre informed her employer, Unified Western Grocers Inc. (Unified) that she was pregnant. In May 2005, De La Torres supervisor began to suspect that De La Torre was falsifying her timecards, padding them with extra hours in order to obtain pay to which she was not entitled. For three weeks, De La Torre was placed under covert surveillance, during which time her arrival and departure times from work were noted. Upon comparing the actual times with the times claimed by De La Torre in her timecards, Unified discovered numerous discrepancies in the timecards all claiming more time than De La Torre had actually worked. De La Torre was terminated for falsifying her timecards. She brought suit for pregnancy discrimination and related causes of action. Summary judgment was entered in favor of Unified. Court affirm.

This is a mothers appeal from an order denying her request to have one of her daughters returned to her home. Court affirm.

Appellant Walter Juarez Manco appeals from a judgment entered after a jury convicted him of one count of attempted murder (Pen. Code, 664, 187)[1]and one count of possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury also found true the allegations that during the course of the attempted murder appellant personally discharged a firearm which caused great bodily injury within the meaning of section 12022.53, subdivision (d); personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); personally used a firearm within the meaning of section 12022.53, subdivision (b); and personally inflicted great bodily injury within the meaning of section 12022.7 subdivision (c). Court affirm.