CA Unpub Decisions

Ebony S. and Patrick N. appeal the judgment terminating their parental rights over their daughter, E.N., and Ebony appeals the judgment terminating her parental rights over her daughter, E.S. Ebony and Patrick contend the juvenile court erred by declining to apply the beneficial parent child relationship exception to termination (Welf. & Inst. Code, 366.26, subd. (c)(1)(A)) as to Ebony and both children, and as to Patrick and E.N. Ebony and Patrick also contend the San Diego County Health and Human Services Agency (the Agency) failed to preserve E.S.'s and E.N.'s relationship, and thus is precluded from denying the existence of the sibling relationship exception ( 366.26, subd. (c)(1)(E)). Court affirm.

This opinion approves and orders a reversal of the judgment appealed pursuant to a stipulation by the parties, with the added direction to dismiss the underlying superior court action as having been rendered moot by the settlement. (Code Civ. Proc., 128, subd. (a)(8).)
Court have completed the task set by section 128, subdivision (a)(8), and find that stipulated reversal is appropriate in this case.

A jury found defendant guilty of possessing methamphetamine for sale (Health & Saf. Code, 11378) (count 1) and being a felon in possession of ammunition (Pen. Code, 12316, subd. (b)(1)) (count 2).[1] The trial court found true the allegations that defendant suffered four prison priors.[2] (Pen. Code, 667.5, subd. (b).) The court also found true the allegations that defendant suffered three prior felony convictions. (Health & Saf. Code, 11370.2, subd. (c).) The court sentenced defendant to state prison for a term of 15 years. Defendant contends that he should be granted a new trial or have his conviction in count 1 reduced to simple possession of a controlled substance because the trial court erred by instructing the jury on the theory of aiding and abetting. Court affirm the judgment.

Defendant David Walter Johnson appeals his conviction for willful elder abuse in violation of Penal Code section 368, subdivision (b)(1), arguing there is insufficient evidence to support the conviction.

Minor admitted violating the terms of her formal probation. The juvenile court ordered minor placed in the custody of a probation officer and housed at juvenile hall pending placement in a foster care facility. Minor contends the juvenile court erred by (1) ordering her to be placed in a foster care facility, and (2) failing to state a maximum term of confinement. Court affirm the juvenile courts judgment.

Defendant pled guilty to driving under the influence of alcohol, causing injury (Veh. Code, 23153, subd. (a)) and driving with a blood-alcohol level exceeding .08 percent, causing injury. (Veh. Code, 23153, subd. (b).) She also admitted inflicting great bodily injury on the victim (Pen. Code, 12022.7, subd. (a)) and injuring a person in addition to the victim. (Veh. Code, 23558.) She was sentenced to prison and appealed. In People v. Harrison, case No. E038120, we affirmed her convictions, but vacated her sentence and remanded the matter to the trial court so it could order a diagnostic study, pursuant to Penal Code section 1203.03.
Subsequently, a diagnostic study was performed and a report generated. Additionally, defendants original probation officer submitted an updated report, as did her current probation officer. Both recommended prison. The trial court sentenced defendant to prison for six years. The judgment is affirmed.

A jury convicted appellant Jose Covarruvias of two counts of the offense commonly known as street terrorism (Pen. Code, 186.22, subd. (a); counts 2 and 5) and individual counts of shooting at an inhabited dwelling ( 246; count 1), shooting at an occupied motor vehicle ( 246; count 3), and assault with a semiautomatic firearm ( 245, subd. (b); count 4). The jury also found true allegations that appellant committed the count 1 and 3 offenses for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(4), and that he committed the count 4 offense for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(B). In a separate proceeding, the court found true an allegation that appellant had suffered a strike.
The court found appellant to be in violation of probation in another case, lifted the stay on the eight year sentence previously imposed in that case, and imposed a total prison term of 68 years to life, consisting of the following, on each of counts 1 and 3, a term of 15 years to life under section 186.22, subdivision (b)(4)(B), doubled pursuant to the three strikes law ( 667, subd. (e)(1); 1170.12, subd. (c)(1)), with the 30 year determinate portions to run consecutively, plus the previously suspended eight year term. On each of counts 2 and 5 the court imposed concurrent four year sentences, each consisting of the two year midterm, doubled pursuant to the three strikes law, and on count 4 the court imposed, and stayed pursuant to section 654, a term of 17 years, consisting of the six year midterm, doubled, plus five years for the gang enhancement ( 186.22, subd. (b)(1)(B)). On appeal, appellant contends the imposition of concurrent sentences on his section 186.22(a) convictions violated (1) the section 654 proscription against multiple punishment and (2) his rights under the double jeopardy clause of the Fifth Amendment to the United States Constitution. Court affirm.

After gang taunts between Norteos and Sureos at a swap meet in Visalia, witnesses observed brothers Ismael and Sergio Meja flashing hand signs, yelling Reyes (the Spanish name of a subset of the Sureo gang), and firing guns right before one bullet just missed Isaac Tobas (a Norteo) and another bullet struck Noel Chvez (a friend of Tobass but not a gang member) on February 12, 2006. A jury found Sergio guilty of (1) attempted willful, deliberate, and premeditated murder of Chvez for the benefit of a criminal street gang with personal and intentional discharge of a firearm by a principal causing great bodily injury, (2) assault with a firearm on Chvez for the benefit of a criminal street gang, and (3) assault with a firearm on Tobas for the benefit of a criminal street gang and with personal use of a firearm. ( 186.22, subd. (b), 187, subd. (a), 189, 245, subd. (a)(2), 664, subd. (a), 12022.5, subds. (a), (d), 12022.53, subds. (d), (e)(1).) The judgment is reversed.

In a felony complaint filed January 4, 2007, it was alleged that appellant Danny Edward Waits committed violations of Vehicle Code section 10851, subdivision (a) (illegal taking or driving of a motor vehicle; count 1) and Penal Code section 496d, subdivision (a) (receiving a stolen motor vehicle; count 2). It was further alleged that appellant had suffered a prior conviction of violating Vehicle Code section 10851, subdivision (a) (Pen. Code, 666.5), had served four separate prison terms for prior felony convictions (Pen. Code, 667.5, subd. (b)), and had suffered 12 prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4).
On May 10, 2007, pursuant to a plea agreement, appellant pled guilty to the count 2 offense and admitted the prior prison term enhancement allegations. Appellant requested immediate sentencing, and the court imposed a prison term of six years, consisting of the three-year midterm on the substantive offense and one year on each of three prior prison term enhancements, and ordered that term to be served concurrently with a term appellant was already serving at the time on separate case in which he had suffered a conviction and violated his parole. The court dismissed the remaining prior prison term enhancement. Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing. Court affirm.

Petitioner, in propria persona, seeks extraordinary writ review (Cal. Rules of Court, rule 8.452) from respondent courts orders issued at an uncontested 18 month review hearing (Welf. & Inst. Code, 366.26) terminating her reunification services as to her son D. and setting a hearing to implement a permanent plan. ( 366.26.) Court deny the petition.

We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142-143.) Defendant Anthony Andrew Galland hand wrote his request for a certificate of probable cause which was granted: I entered plea mislead by my Attorney, O.C. Pub. Def. Ardalon Fakhimi, he told me I would receive 25 years to life if I pled not guilty, he wouldnt give me, or let me have a Marsden motion, and if I ask the judge for a Marsden hearing Id be beat up by the Orange County Sheriff at Court, he refused from [line unreadable] I called his office at least 30 times from O.C.J. with no reply. At court he told me I could get this matter dismissed with a P.C. 1538.5 due to the fact my search and seizure rights were violated, but, then he said since Im a repeat offender, my 4th Amendment Rights dont mean JACK SQUAT! I was coerced and under duress. So, I plead guilty I tried to talk to Attorney Fakhimi, but he repeatedly said to me, I wish youd shut your big Yapper! Plus, many other things which need the help of an Appeals Attorney to tell the Court about. Ive got a disorder which prevents me from communicating properly, Thank You Your Honor. IM INNOCENT! [] August 4th, 2006. Respectfully Submitted [] ANTHONY A. GALLAND. The trial court issued a certificate.
Court have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.

Defendant Nuvia Jeanneth Constantino appeals from her conviction for second degree murder, arguing she was prejudiced by an incorrect special jury instruction on the doctrine of imperfect self defense. The jury was instructed with CALCRIM No. 571. The trial court then instructed the jury with a special instruction taken from CALJIC No. 5.17 and In re Christian S. (1994) 7 Cal.4th 768, 773, footnote 1 (Christian S.). The special instruction explained the legal effect of defendants wrongful or unlawful conduct if she had created the circumstances justifying use of force by the victim. Defendant argues the CALCRIM instruction correctly stated the law and the special instruction did not. Court conclude the evidence did not support the trial court giving any instruction on the imperfect self defense doctrine. Therefore, it was also error for the court to give the additional special instruction on imperfect self defense.
However, it is not reasonably probable defendant would have obtained a more favorable verdict if the jury had not been instructed on imperfect self defense. The jury was fully and correctly instructed on self defense. Defendant, knowing the victim did not have a weapon, walked past the victim twice while defendant and her friends exchanged words with the victim and her companions. Defendant then obtained a knife, intending to stab the victim. Defendant stabbed the victim four times and the victim died as a result. The prosecutor primarily discussed imperfect self defense during closing argument to explain why it did not apply under the facts of the case. Court conclude the jury would not have rendered a different verdict if the challenged instruction had not been given. Court therefore affirm.

Appellant James B. Kisiel appeals from the trial courts order granting respondent Rachel Holtons motion to be allowed to move out of state with the parties three minor children. Court affirm.

Defendant Jan Erickson appeals his conviction by jury trial of second degree murder with the use of deadly weapons (Pen. Code, 187, 12022, subd. (b)(1)) and mayhem ( 205). The jury found him not guilty of torture ( 206). He contends the trial court erroneously instructed the jury on implied malice and defense counsel was ineffective in failing to request a jury instruction on voluntary intoxication. Court reject the contentions and affirm.