CA Unpub Decisions

This appeal comes to us following a finding by the juvenile court that defendant committed the offenses of assault with a deadly weapon by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)), and evading arrest (Veh. Code, 2800.2, subd. (a)), with associated enhancements for personal use of a deadly weapon, a car, in the commission of the two offenses (Pen. Code, 12022, subd. (b)(1)), as alleged in an amended petition filed pursuant to Welfare and Institutions Code section 602.[1] Following a contested dispositional hearing, the juvenile court ordered defendant removed from the custody of his parents and committed to a county facility, Camp Wilmont Sweeney, for a maximum term of confinement of nine years.
In this appeal defendant complains that the dispositional order of removal and placement at Camp Sweeney is not supported by evidence of his best interests. Court conclude that substantial evidence supports the juvenile courts decision to remove defendant from his parents home, and affirm the judgment.

John Morra, the son of Louis Morra, deceased, appeals from a judgment and order rejecting his contention that Louiss property should be distributed pursuant to the laws of intestacy, and ruling that any residue of Louiss probate estate should be distributed to the trustee of the Louis and Bobbye T. Morra Revocable Living Trust (the Trust). Court affirm.

Angela L. (Mother) seeks an extraordinary writ to set aside an order of the Superior Court of Alameda County, Juvenile Division, which denied further reunification services and set a hearing under Welfare and Institutions Code section 366.26[1] to select a permanent plan for her daughter S.L. (born November 2000). As discussed below, Court find no merit in Mothers claim of error and deny her petition on the merits.

Jose Luis Tejeda appeals from the judgment entered following his conviction by jury of selling a controlled substance (Health & Saf. Code, 11352, subd. (a)) with court findings that he suffered three prior felony convictions (Pen. Code, 667, subd. (d)). The court sentenced him to prison for eight years. Appellant claims trial and sentencing error occurred, and asks this court to review sealed transcripts and documents pertaining to his Pitchess motion. Court affirm the judgment.

Jemal Suyin Reese appeals following revocation of probation previously granted upon his plea of no contest to possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)) with an admission he suffered a prior felony conviction (Pen. Code, 667, subd. (d)) and two prior felony convictions for which he served separate prison terms (Pen. Code, 667.5, subd. (b)). The court sentenced him to prison for eight years. Appellant claims the trial court committed sentencing errors. Court affirm the judgment.

A modification decision.

A jury convicted defendant James Anthony Guerrero of felony possession of a fictitious note (counterfeit money) with intent to defraud (Pen. Code, 476),[1]felony assault ( 245, subd. (a)(1)), and giving false information to a peace officer ( 148.9), a misdemeanor. The jury also found that defendant had four prior strike convictions ( 667, subds. (b)-(i), 1170.12) and that he was sane at the time of the offenses.
Sentenced to state prison for concurrent terms of 25 years to life for each felony and a concurrent jail term for the misdemeanor, defendant appeals. He contends the trial court committed reversible error when it refused to (1) require the prosecution to disclose the criminal history of a potential witness, and (2) instruct the jury regarding the prosecutions failure to produce records relating to a drug container found in defendants pocket. Court affirm the judgment.

Defendant Uriel Chavez Maldonado was found guilty by a jury of conspiracy to cultivate marijuana (Pen. Code, 182, subd. (a)(1); Health & Saf. Code, 11358) and conspiracy to possess marijuana for sale (Pen. Code, 182, subd. (a)(1); Health & Saf. Code, 11359). The trial court suspended execution of upper term sentences on each count and placed defendant on probation for three years.
Defendant appeals, raising the following claims: (1) there was insufficient evidence of intent to support his convictions, (2) comments during voir dire made by one of the prospective jurors prejudiced the jury panel, and (3) upper term sentences violated the holding in Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856] (Cunningham). We find merit only in defendants sentencing claim and shall remand the matter for resentencing.
In addition, following supplemental briefing requested by this court, the parties agree that the evidence supports a conviction of only one count of conspiracy. Court modify the judgment accordingly.

Plaintiff Dominga Flores unsuccessfully sought injunctive relief in an abatement proceeding to prevent the execution of a warrant issued in the proceeding that authorized demolition of a building she owned on East Main Street in downtown Stockton. She appealed from the orders denying the preliminary injunction and rehearing, and petitioned this court for a writ of supersedeas. We denied the writ in March 2003. The demolition took place thereafter as scheduled. Court later dismissed her appeal in August 2003 for her failure to file an opening brief. The plaintiff commenced the present action in March 2006, and filed an amended pleading two months later. She sought damages under theories of inverse condemnation, a violation of her civil rights, and a failure to follow abatement procedures that complied with constitutional and statutory requirements. The trial court sustained the demurrer of defendant City of Stockton (City) without leave to amend on the issue of res judicata and entered a judgment of dismissal. The plaintiff filed a timely notice of appeal.
The plaintiff disputes the application of res judicata. Court conclude that the present claim is indeed precluded. Court decline to address the other bases for the demurrer. Court therefore affirm the judgment of dismissal.

Following a contested jurisdictional hearing, the juvenile court sustained a charge of misdemeanor battery against D.A., the minor. The minor was declared a ward of the juvenile court and placed in her mothers home under the supervision of the probation officer. The court also imposed a restitution fine of $25. On appeal, the minor contends the restitution fine must be reversed and the matter remanded for a new hearing on the fine because the court failed to exercise informed discretion in imposing the fine. As a backup argument, the minor contends that if we find her counsels failure to object to the amount of the fine forfeits the issue for appeal, then she received ineffective assistance of counsel.
The People contend the minors failure to object forfeits the issue. The People also contend that the minor cannot show ineffective assistance of counsel because (1) the court exercised its discretion by reducing the fine; (2) counsels failure to object is explainable as a tactical decision; and (3) it is not reasonably likely that, had counsel objected, she would have received a more beneficial result. The restitution fine of $25 is reduced to $1. The juvenile court is directed to amend its records accordingly and to inform the necessary parties of the change. As modified, the judgment is affirmed.

Driving at 64 miles per hour around a curve posted at 35 miles per hour, defendant Tracy Ann Jenkins lost control of a dune buggy and crashed. Her passenger, a hitchhiker, sustained a broken arm, a concussion and a bruised chest. Defendant, who had a blood-alcohol content of .32 percent, sustained a broken arm, a concussion and a punctured lung. Defendant pleaded no contest to driving under the influence causing injury to her passenger, a felony (Veh. Code, 23153, subd. (a)) in exchange for dismissal of the remaining count and the prosecutors agreement not to oppose reduction to a misdemeanor upon defendants successful completion of probation. The court suspended imposition of sentence and granted probation subject to certain terms and conditions, including serving 120 days in county jail and refraining from the consumption of alcohol. Defendant admitted she had violated probation by consuming alcohol. The court reinstated defendant on probation subject to an additional 30 days in jail. Defendant again violated probation by consuming alcohol and once again the court reinstated defendant on probation with an additional 60 days in jail. Defendant violated probation for a third time by consuming alcohol as well as failing to report her arrest to probation. The court sentenced defendant to state prison for the midterm of two years with presentence custody credit of 266 days (178 actual and 88 conduct days). The judgment is affirmed.

A jury convicted Jessie Emanuel Ellison of three counts of robbery (Pen. Code,[1] 211); three counts of assault with a firearm ( 245, subd. (a)(2)); three counts of making a criminal threat ( 422); and three counts of false imprisonment by violence, menace, fraud, and deceit ( 236, 237, subd. (a)). Additionally, the jury found true special allegations that Ellison personally used a firearm in the commission of the robbery ( 12022.53, subd. (b)) and "engaged in the tying, binding, or confining of" the victims of the robbery ( 1170.84). The trial court sentenced Ellison to 15 years in prison. Ellison appeals, asserting that his convictions must be reversed on two grounds. First, he argues that the trial court erred by admitting evidence regarding the circumstances of his termination from the store that was robbed. Second, Ellison contends that the trial court erred by limiting a defense expert witness's testimony regarding erroneous eyewitness identifications in other criminal cases. As discussed below, Court find these contentions to be without merit, and affirm.

Mark Elder appeals from a judgment convicting him of first degree murder. He argues the trial court erred in: (1) denying his request for a continuance following its ruling admitting uncharged offense evidence; (2) admitting the uncharged offense evidence under Evidence Code sections 1108 and 1101, subdivision (b); and (3) denying his request for a mistrial based on the prosecutor's comment on his silence after being given Miranda[2]warnings. With one exception, we reject his contentions of error. We hold the court erred in admitting the uncharged offense evidence under section 1108, but find the error harmless because the evidence was admissible under section 1101, subdivision (b). Elder also argues the trial court's imposition of a restitution fine under Penal Code section 1202.45 violated the constitutional prohibition against ex post facto laws. The Attorney General properly concedes this error. Accordingly, Court modify the judgment to strike this restitution fine. As so modified, Court affirm the judgment.

Thomas Lennon, a court-appointed receiver, appeals from an order awarding him compensation for his services. The court appointed Lennon to serve as a receiver in an action to dissolve two business entities. After the receivership was completed, the court ordered one of the entities to pay $122,500 for the receiver's services, and ordered the other entity to pay $10,027.50 for the services. The court also ordered the entities to pay approximately $62,000 for the receiver's attorney fees. On appeal, Lennon contends: (1) the court erred in refusing to order one of the entities to pay all of his fees and attorney fees even though the fees related solely to work for the other business entity; and (2) the court erred in refusing to order the individual parties to pay for the receiver fees and attorney fees. Court find no abuse of discretion, and affirm.