CA Unpub Decisions

A modification decision.

Sharon T. appeals from a judgment terminating her parental rights to Kylie O. Sharon argues the court erred in failing to apply either the parental bond exception (Welf. & Inst. Code, 366.26 (c)(1)(A)) or the sibling bond exception (Welf. & Inst. Code, 366.26 (c)(1)(E)) to the general presumption favoring adoption as the permanent plan for a dependent child, once reunification efforts have failed. court conclude that where, as here, the child was taken from the mothers custody at birth, and never resided with either the mother or the siblings, there is no basis to conclude the court abused its discretion in declining to apply either exception. The judgment is affirmed.

Defendant Fred Samuel Schultz appeals from a postjudgment order retroactively increasing his child support obligation. Although this case has made quite a few trips to the trial court and once previously to this court, the issue raised in this appeal makes it unnecessary to recite all the procedural ins and outs. It is sufficient to note that on May 10, 2000, Temporary Judge Gale Hickman issued an order, based on a stipulation of the parties, providing for certain specified lump sum and periodic payments. In addition the order provided [a]ll current child support orders and orders, including judgments, of child support arrearages, are set aside in consideration of the amount agreed in the preceding paragraph . . . .
On September 28, 2006, on motion by plaintiff, Temporary Judge Craig Arthur declared the May 10, 2000 order void and ordered defendant to pay for retroactive child support. Defendant does not contest that the court had power to modify child support obligations prospectively but contends that it exceeded its powers by invalidating a prior final order made by another judge. He is right and plaintiff so concedes. The order is reversed.

Plaintiff Agustin Zarate sued defendants, Century 21 Su Casa, Bic Pho, and Phuong Bui on claims related to plaintiffs purchase of real property in 2002. The trial court found defendants liable for negligence and breach of fiduciary duty and awarded plaintiff damages of $5,506.45. Plaintiff appeals. He argues that the trial court used the wrong rule to measure his damages. Court affirm.

A jury convicted defendant James Evans of one count of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1] and found true the allegation that defendant had personally inflicted great bodily injury upon the victim ( 12022.7, subd. (a)). The trial court also found that defendant had violated probation in a separate case in which defendant had pleaded guilty to one count of possession of a controlled substance. (Health & Saf. Code, 11350, subd. (a).) The trial court sentenced defendant to the upper term of four years for the assault, three years for the great bodily injury enhancement, and a consecutive eight months in prison for the violation of probation matter. Defendant appeals. He contends that evidence of the assault victims in-the-field identification of him should have been excluded, that the trial court impermissibly limited his cross examination of a jailhouse informant, and that the upper term and consecutive sentences violate the rule of Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court find merit in part of defendants Blakely argument and remand for resentencing.

A jury found defendant Roger Cavazos Villarreal guilty of murdering Thomas Masters and further found true special circumstances allegations that he committed the murder during a robbery and had a prior murder conviction. (Pen. Code, 187, subd. (a), 190.2, subds. (a)(2) & (a)(17).) The court sentenced defendant to life without the possibility of parole. On appeal from the judgment, defendant claims the court erred in denying his motion to exclude incriminating statements obtained in violation of his Miranda[1] rights. He also claims that during the hearing on his motion to exclude, defense counsel rendered ineffective assistance in failing to elicit evidence that authorities had focused on him as a suspect. Court affirm the judgment.

Minor Andrew C. was first committed to Californias Youth Authority (CYA)[1] at the age of 12 after quickly failing placements in four group homes. The Monterey County Superior Court rescinded this initial commitment after two months. The juvenile court again committed minor to CYA at the age of 13 after minor had failed in a home placement, three times in two group homes, and at the Monterey County Probation Youth Center. On appeal, minor challenges his CYA commitment, arguing that it is not supported by the factors on which the court relied and that the court overlooked or improperly weighed other factors precluding this commitment. In support of these arguments, he requests us to recognize current conditions at CYA by taking judicial notice or additional evidence on appeal. Minor also contends that the juvenile court failed its obligation under Welfare and Institutions Code section 241.1 to determine whether minor should have been treated as a dependent, and not a delinquent, child. For the reasons stated below, Court affirm the CYA commitment.

Pursuant to a plea bargain, appellant Jose Ureno pleaded no contest to one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and one count of resisting arrest (Pen. Code, 148, subd. (a)(1)). Appellant admitted that he had a prior strike conviction. (Pen. Code, 667, subds. (b)-(i).) The court imposed the agreed upon sentence of the lower term of 16 months on the drug charged doubled because of the prior strike conviction. In addition, the court imposed a concurrent one year jail term for the resisting arrest charge. The court awarded appellant 617 days of presentence custody credits consisting of 529 days for time spent in custody and 88 days for "good time" and "work time" credits pursuant to Penal Code section 4019.
Appellant filed a timely notice of appeal.
The facts underlying appellant's convictions are not relevant to this appeal. However, Court relate the facts as they pertain to the sentencing hearing.

This appeal asks us to decide whether the trial court violated Penal Code section 654 by imposing a term for assault concurrent to a term for robbery based on information contained in the probation report. On appeal after her no contest plea, defendant asserts that the court erred in imposing a concurrent term for the assault when it should be stayed pursuant to section 654. She also contends that the trial court should not have considered the probation report in imposing sentence. For the reasons stated below, Court affirm the judgment.

This appeal arises from a felony conviction following entry of a guilty plea by defendant Moses Troy Phillips to possession of a dirk or dagger (Pen. Code, 12020, subd. (a)(4)), failure by a transient to reregister as a sex offender ( 290, subd. (a)(1)(C)(i)), and falsely identifying himself to a peace officer ( 148.9). He also admitted a prior strike ( 667, subd. (b), 1170.12) and a prior prison term ( 667.5, subd. (b)). Defendant challenges the conviction, contending that the evidence used to secure the conviction (i.e., the concealed knife) was the product of an unlawful search of his person.
For the reasons below, we conclude that the search of defendants person was conducted by the police with his consent and that the search did not exceed the scope of that consent. Accordingly, Court affirm the judgment of the trial court.

Appellant Jermaine Copes pled no contest to possessing cocaine base for sale and was placed on felony probation. (Health & Saf. Code, 11351.5.) His probation was revoked and he was sentenced to prison for the four year upper term based on his subsequent arrest for drug possession. In this appeal from the order revoking probation, court appointed counsel has briefed no issues, but has asked this court to independently review the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Court affirm.

A jury convicted appellant Adrian Flores of one count of assault with a firearm (Pen. Code, 245, subd. (a)(2))[1](count 1) and one count of possession of a controlled substance with a firearm (Health & Saf. Code, 11370.1, subd. (a)) (count 2). The jury found true the allegation that appellant personally used a firearm in the commission of count 1. ( 12022.5.) The trial court sentenced appellant to state prison for a total of 15 years. The court imposed the upper term of four years on count 1 and the upper term of 10 years for the personal use enhancement. The court imposed one year (one third the midterm of three years) in count 2. Court requested and received supplemental briefing from the parties regarding the effect, if any, of Cunningham and of the California Supreme Courts recent opinions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) on appellants issue regarding the imposition of the upper term.

Pierce & Weiss, LLP, appeals a jury award in favor of Sandra Bauer on Bauers cause of action for intentional interference with prospective economic advantage and the award of attorney fees in favor of Bauer. Court affirm the award of damages in favor of Bauer but reverse the award of attorney fees.

Osbaldo S. Velasquez (appellant) appeals from the judgment entered following a jury trial resulting in his convictions of carjacking (Pen. Code, 215; count 2),[1]second degree robbery ( 211; count 3), assault by means likely to produce great bodily injury ( 245, subd. (a)(1); count 4), and assault with a firearm ( 245, subd. (a)(3); count 5). In counts 2, 3, and 4, the jury made findings of the personal use of a firearm ( 12022.5, subd. (a), 12022.53, subd. (b)), and that in counts 2 through 5, the offenses were committed for the benefit of a criminal street gang ( 186.22, subds. (b)(1)(C) & (b)(4)). The trial court sentenced appellant in count 2 to an indeterminate term of life with a minimum term of 15 years, enhanced by a consecutive term of 10 years for the use of a firearm. For the remaining counts, it imposed concurrent determinate terms that did not exceed the term imposed for count 2.
Court appointed counsel to represent him on this appeal. After an examination of the record, counsel filed a Wende Brief (Peoplev. Wende (1979) 25 Cal.3d 436) in which no issues are raised. The judgment is affirmed.