CA Unpub Decisions

Defendant Jerome Davis Babineau appeals from the judgment of conviction after a jury found him guilty on seven counts of lewd and lascivious acts with a child under 14 years of age and one count of indecent exposure, as well as several sentence enhancements. The court sentenced him to an aggregate prison term of 385 years to life.
On appeal, defendant contends the trial court erred by admitting evidence of multiple previous molestation incidents. He also contends that the jury instructions regarding propensity violate due process. Court find no error and affirm the judgment.

Defendant Richard Bruce Lavallee pled no contest to being a felon in possession of a firearm and appeals the trial courts denial of his motion to suppress evidence. Defendant contends the trial court erred when it admitted evidence that was the product of an invalid parole search. Court disagree and affirm.

Robert L. Warren filed an order to show cause why his former wife, Katherine D. White, should not be required to pay damages for alleged breaches of both a postseparation fiduciary duty and a "Qualified Domestic Relations Order" (QDRO).[1] The trial court denied Warren's motion for damages. Warren appeals, contending: (1) the trial court's conclusions on certain matters are inconsistent with the court's findings ; (2) the court improperly shifted the risk of loss to him and imposed a duty on him to discover White's termination from employment; and (3) White did not give him a reasonable opportunity to exercise his options because her emails were untimely and ambiguous. Court Affirm.

Efrain G., Jr., (Efrain) appeals the judgment declaring his daughter, Julia S., free from his custody and control (Fam. Code, 7822) upon the petition of Julia's stepfather, Lloyd C. (Lloyd), and has filed a petition for writ of habeas corpus. In his appeal, Efrain contends there is no substantial evidence supporting the trial court's findings pursuant to Family Code section 7822, subdivision (a), that he "left" Julia in the care and custody of her mother, S.C., failed to support Julia and attempt to communicate with her for one year, and intended to abandon her. In both the appeal and the petition, Efrain contends he received ineffective assistance of counsel and the failure of Lloyd and the court to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) constitutes reversible error. Court conclude there was no proper ICWA inquiry, and reject the remaining contentions.

Defendant was charged and convicted after a jury trial of two counts of aggravated sexual assault of a child, one count by forcible rape (Pen. Code, 269, subd. (a)(1), 261, subd. (a)(2),[1]count 1) and the other count by forcible oral copulation ( 269, subd. (a)(4), 288a, subd. (c)(3), count 2); and 16 counts of committing a lewd act on a child ( 288, subd. (a); counts 3-18). All of the crimes involved defendants niece, Jane Doe, who was between the ages of 9 and 13 when the crimes occurred. Defendant was in his 30s. Defendant was sentenced to 40 years to life, consisting of two consecutive terms of 15 years to life on the two aggravated sexual assault convictions, plus 10 years for the nonforcible lewd act convictions. Defendant contends the trial court erroneously instructed the jury regarding the elements of force and consent in counts 1 and 2, in response to questions the jurors raised during their deliberations. Specifically, he claims the trial court gave an erroneous supplemental instruction on force in response to the jurys initial inquiry concerning the definition of force. In addition, he claims the trial court violated section 1138 by failing to adequately and correctly address the jurors further questions regarding whether Does young age, the nature of her relationship with defendant, and her perception of whether force was used were relevant to determining whether she consented to the intercourse and oral copulation. He also claims the trial court erroneously concluded that consecutive terms were mandatory on counts 1 and 2, when in fact the court had discretion to impose concurrent terms. For the reasons that follow, Court affirm the judgment in all respects.

Plaintiffs Jack and Christina Akmakjian and defendants Mohammed and Mary Haider purchased an apartment building. (Mrs. Akmakjian and Mr. Haider are sister and brother.) The parties took title to the property as joint tenants. The Akmakjians subsequently quitclaimed their interests in the property to a trust (the Trust), with Christina Akmakjian as trustee. After disputes arose between them, the Akmakjians sued the Haiders to partition the property by sale, and for an accounting. Following a bench trial, the court issued an interlocutory judgment declaring that the parties are cotenants of the property, and that Christina Akmakjian, trustee of the Trust, holds an 85 percent interest in the property and the Haiders hold a 15 percent interest. The Haiders appealed.

The Haiders contend that the judgment is contrary to law for two reasons: first, allegations in the first amended complaint that the Trust holds a 50 percent joint tenancy interest in the property are judicial admissions that preclude the trial court from ordering an unequal division of interests; and second, language in the initial grant deed and the subsequent quitclaim deed to the Trust conclusively establish that the Akmakjians obtained a 50 percent interest in the property. Court disagree and affirm.

A jury found defendants Edwardo Guerrero (Edwardo) and Juan Guerrero (Juan) guilty of first degree murder. (Pen. Code, 187, subd. (a).)[1] The jury also found true that Edwardo had personally discharged a firearm within the meaning of section 12022.53, subdivision (d). Edwardo was sentenced to 50 years to life; Juan was sentenced to 25 years to life. On appeal, Juan contends (1) the trial court prejudicially erred and violated his constitutional rights when it refused to instruct the jury on the elements of accessory after the fact, and (2) his counsel was ineffective when counsel failed to request a pinpoint instruction concerning his defense theory that he was only an accessory after the fact to the murder offense. Court reject these contentions and affirm the judgment.

Defendant pled guilty to one count of grand theft. (Pen. Code, 487, subd. (a).)[1] As part of her plea, defendant agreed to pay victim restitution in an amount yet to be determined. After a later hearing to determine that amount, the court ordered defendant to pay a total of $19,334.40. Defendant appeals, essentially contending that there were two separate thefts of the victims property and that she was only responsible for the first theft; hence, she argues, the court erred in determining she was responsible for restitution of the total value of all the stolen property. Court find the courts determination of victim restitution was well within its discretion and, therefore, affirm the judgment below.

A jury convicted defendant of first degree burglary (count 1Pen. Code, 459),[1]petty theft with a prior ( 666), and receiving stolen property ( 496). After a bifurcated bench trial, the trial court found true gang enhancement allegations as to all three counts and an allegation that defendant had a prior strike conviction. On appeal, defendant makes four contentions: (1) the trial court erred in permitting defendant to be convicted of both the theft and receipt of the same property; (2) the trial court erred in finding the gang enhancement allegations true; (3) the trial court erred in imposing an unauthorized sentence on count 1; and (4) the trial court erred in failing to advise defendant of his right to a jury trial on the gang enhancements and to take an appropriate waiver of that right. The People concede defendants first, third, and fourth issues, but contend substantial evidence supported the trial courts finding on the gang enhancement. We agree the court erred in permitting conviction on both counts 2 and 3 and, therefore, reverse the conviction on count 3. Additionally, we agree the court failed to properly admonish and take defendants waiver of his right to a jury trial on the gang enhancements and, therefore, reverse those findings. Finally, Court agree the court imposed an unauthorized sentence on count 1 and direct the superior court to correct the sentencing minute order. Defendants contention that the true finding on the gang enhancements was not supported by substantial evidence is rendered moot by our reversal of that finding on other grounds. In all other respects, the judgment is affirmed.

Defendant and appellant Michael Daniel Dearths sole issue on appeal is that the trial court erred in setting his parole revocation restitution fine at $800 instead of $200. Respondent agrees. Court modify the order as set forth below.

A trial court found defendant and appellant Oscar Palomares guilty of possessing methamphetamine under Health and Safety Code section 11377, subdivision (a). Defendants sole contention on appeal is that the trial court erred in denying his motion to suppress evidence under Penal Code section 1538.5. For the reasons set forth below, Court affirm the judgment.

Fourteen-month-old M.M. (M.M. or minor) appeals the order extending by six months the period for reunification available to her mother, A.M., respondent. Mother replies that the appeal is moot because by the time an appellate opinion can be issued, the bulk of the ordered services will have already been provided and there will be no effective remedy available to this court. In any case, mother asserts, the juvenile courts decision to extend additional services was supported by sufficient evidence and is correct. Father, P.M., agrees with mother.

Kham Panyasy appeals from a judgment of two years in prison. She contends that the trial court abused its discretion by failing to appoint an expert in Laotian culture to assist the trial court with sentencing. In a supplemental letter brief, Panyasy also contends that one of her convictions should be reversed because it is a lesser included offense of another conviction. For the following reasons, Court affirm.

Mark Magruder appeals from a judgment of the trial court following the dissolution of his marriage to Jill Magruder.[1] The parties divorced in September 2004, but the trial court reserved jurisdiction on several issues including child and spousal support and division of community property. Mark contends the trial court misallocated numerous expenses to him in the period immediately after the couple separated, and shorted him on vacation pay and potential credits on accrued child and spousal support. He also argues the trial court erred in imputing income to him, but not Jill, and in making its final support order retroactive. For the reasons that follow, none of these contentions has merit, and Court therefore affirm the judgment.