CA Unpub Decisions

The juvenile court declared William G. III a ward (Welf. & Inst. Code, 602) after sustaining a petition that he committed lewd and lascivious acts upon a child under the age of 14 (Pen. Code, 288, subd. (a)) and annoyed and molested a child under the age of 18 (Pen. Code, 647.6, subd. (a)), a misdemeanor. The court placed William on probation, conditioned on, among other things, that he not associate with children under the age of 12 and not frequent places where children under the age of 12 congregate unless in the company of an adult who is at least 21 years of age and aware of the offenses William committed. The matter is remanded to the juvenile court with directions to (1) strike the maximum term of confinement references in the court minutes of the adjudication hearing, and (2) modify the probation condition restricting William's unsupervised association with children under the age of 12 to expressly include a knowledge requirement. In all other aspects, the order of wardship is affirmed.

George H. Berardi filed a petition for writ of mandate and/or prohibition challenging the trial court's order overruling his demurrer to a complaint filed by the San Diego County District Attorney's Office charging him with murder (Pen. Code, 187, subd. (a)) and conspiracy to commit murder ( 182, subd. (a)(1), 187, subd. (a)). Berardi argues the complaint is barred by section 1387's "two dismissal" rule because there have been two prior dismissals or terminations of actions against him involving the same charges. He alternatively argues that to the extent section 1387 does not require dismissal of the complaint, he is denied his constitutional right to equal protection of the law.

Appellant W.S., the alleged father of E.C., purports to appeal from an order terminating parental rights to E.C. and placing E.C. for adoption. (Welf. & Inst. Code, 366.26.)[1] W.S. claims the Department of Public Social Services (DPSS) committed reversible error by failing to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) DPSS argues that W.S. has no standing to raise the ICWA notice issue because he is not a parent within the meaning of the ICWA. Court agree that W.S. has no standing to assert noncompliance with the notice requirements of the ICWA, because he never took any official action to acknowledge or establish his paternity of E.C. (In re Daniel M. (2003) 110 Cal.App.4th 703 (Daniel M.).) Accordingly, Court dismiss the appeal.

Defendant Jaime Anthony Moreno was convicted of one count of felony spousal abuse. On appeal, he contends (1) the trial court erred by admitting hearsay statements under the spontaneous statement exception and (2) the trial court erred by instructing the jury with CALCRIM No. 306 as a sanction for defense counsels discovery violation. Court affirm.

While driving a stolen car, appellant Robert Spiller was pulled over for a traffic violation. The California Highway Patrol (CHP) officer at the scene ascertained the car was stolen, and when a second officer arrived to provide assistance, appellant suddenly drove off. Appellant attempted to avoid CHP pursuit in a high speed chase, crashed the vehicle into a fence, fled on foot, and was finally arrested. He was charged with, among other things, vehicle theft, grand theft of an automobile, receipt of stolen property and evading an officer with willful disregard for the safety of others. The information included an allegation of a serious prior felony for purposes of the Three Strikes law and that appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b). Appellant was convicted by the jury on all counts except that of grand theft. In computing the sentence, the trial court used the upper term of three years for the vehicle theft conviction, which was doubled due to the strike prior, added one year and four months for the conviction for evading an officer with willful disregard for the safety of others, and added one more year due to a previous prison term, for a total sentence of eight years and four months. Appellant appealed, contending among other things that: (a) sentencing error occurred under Cunningham v. California (2007) 549 U.S.[127 S.CT. 856] (Cunningham); (b) the enhancement based on a prior prison term was improperly applied because appellant never admitted to the prison term; and (c) appellant was improperly convicted of both stealing and receiving the same property. Court conclude the conviction for receiving stolen property must be vacated, but otherwise affirm the judgment.

Defendant Loyd William Nichols was convicted of grand theft and misdemeanor marijuana possession after he was caught stealing copper electrical cord from the yard of a business. The marijuana in his pocket was wrapped in a receipt from a metal recycling plant. He received a six-year prison sentence and was ordered to pay more than $150,000 in restitution. He now claims instructional error and insufficient evidence on the marijuana charge. He also challenges the restitution order, contending that the bulk of it was for losses not shown to be connected with his criminal conduct. Finally, he asserts that his sentence is in conflict with the United States Supreme Courts recent decisions in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court reverse the conviction of marijuana possession, vacate the restitution award, remand for recalculation of that award, and affirm the remainder of the judgment.

It was alleged in an information filed April 20, 2007, as follows: appellant, Fidel Robert Gomez, committed violations of Health and Safety Code section 11379, subdivision (a)[1](transportation of methamphetamine; count 1), section 11378 (possession of methamphetamine for purposes of sale; count 2), Penal Code section 12316, subdivision (b)(1) (possession of ammunition by a person prohibited from owning or possessing a firearm; count 3), and section 11364 (possession of controlled substance paraphernalia; count 4); he had suffered a prior conviction of violating section 11378 ( 11370.2, subd. (c)); and he had served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)).
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 himself submitted a brief to this court in which he argues, as best we can determine, that (1) he was denied his right to trial by jury under the Sixth Amendment to the United States Constitution because the court imposed the upper term based on facts that were not by a jury beyond a reasonable doubt, and (2) he has not been properly credited for payments made on the fines and fees ordered by the court. Court affirm.

Pursuant to a plea agreement in Fresno County Superior Court case No. F05907680 3, petitioner Nicholas Dueck pled no contest to grand theft of a firearm (Pen. Code, 487, subd. (d)). The court placed Dueck on three years probation, one of the conditions of which was that he serve 136 days in county jail. Thereafter, Dueck moved to withdraw his plea and vacate his sentence. The court denied the plea/judgment motion. Dueck appealed.[3] This court, on its own motion, ordered the appeal to also be deemed a petition for writ of habeas corpus, and granted the People leave to file an informal response. The People filed an informal response, and Dueck filed a responsive pleading (informal reply). Thereafter, this court vacated its order deeming the appeal to also be a petition for writ of habeas corpus; affirmed the judgment on appeal; and ordered that certain documents filed by Dueck in the appeal, including his opening brief, be deemed, collectively, to be a petition for writ of habeas corpus. Further, this court issued an order that the People show cause why the relief prayed for in the instant petition for writ of habeas corpus, i.e., reversal of the judgment based on ineffective assistance of counsel, should not be granted.
This court also granted the People the option of either filing a formal written return or consenting to have their informal response, and other pleadings filed in the appeal, deemed to be their formal written response. The People have chosen the latter option, and have waived oral argument. Dueck has agreed that his informal reply and other pleadings filed in the appeal be deemed his formal traverse, and has also waived oral argument. As Court discuss below, Court conclude Dueck was denied his right to the effective assistance of counsel, and direct that a writ of habeas corpus issue.

Jesus Mendoza appeals from the judgment granting him formal probation for three years following his guilty plea to transporting methamphetamine for the purpose of sales. (See Health & Saf. Code, 11379, subd. (a).) His sole contention on appeal is that his post-arrest statements should have been suppressed due to an allegedly illegal arrest. Court affirm.

A jury convicted William Michael Allen (defendant) of forcible oral copulation (Pen. Code, 288a, subd. (c)(2)), three counts of forcible sodomy (id., 286, subd. (c)(2)), three counts of forcible rape (id., 261, subd. (a)(2)), kidnapping to commit rape (id., 209, subd. (b)(1)), assault by means of force likely to produce great bodily injury (id., 245, subd. (a)(1)), and robbery (id., 211). The trial court found true a number of prior conviction allegations, including some that implicated the one strike law (id., 667.61), Three Strikes law (id., 667, subds. (b)-(i), 1170.12), or section 667, subdivision (a), habitual offender statute. It sentenced defendant to 260 years to life in prison.

On appeal, defendant contends that the trial court erred in ruling that statements he made to a pastor were not excludable under the statutory penitent privilege, and their admission resulted in constitutional violations; that it was improper to impeach him with evidence of his prior fantasies about rape, and that doing so resulted in constitutional violations; and that his punishment was increased in violation of constitutional ex post facto guaranties. Court affirm the judgment.

Defendants Scott Balestreri and Ruth Helen Welz were convicted after jury trial of first degree burglary (Pen. Code, 459), and theft of over $400 from an elder adult ( 368, subd. (d)). The jury further found that the victim of the burglary was present in the residence during the commission of the offense, and that defendants knew or should have known that the victim was 65 years old or older. ( 667.5, subd. (c)(21), 667.9, subd. (a).) The court found that Balestreri had a prior serious felony conviction ( 667, subd. (a)) that also qualified as a strike ( 1170.12), and that he had served a prior prison term ( 667.5, subd. (b)), and sentenced him to 15 years in state prison. The court sentenced Welz to five years in state prison. On appeal, defendants contend that the evidence is insufficient to support their convictions for burglary, and that the trial court erred in admitting evidence of prior uncharged acts under Evidence Code section 1101, subdivision (b). Court disagree with defendants contentions and, therefore, affirm the judgments.

jury convicted defendant Jess Carlos Lpez of 14 counts of committing lewd or lascivious acts on a child under age 14 by force. (Pen. Code, 288, subd. (b)(1).) The victims were defendants stepchildren. The jury found true allegations under the one strike law that he committed an offense against more than one victim. ( 667.61, subds. (b), (c), & (e).) The information alleged that the crimes occurred between January 1, 1995, and October 1, 1998, but because of a statute of limitations that the parties agree applies, defendant could be punished only for crimes committed on or after August 1, 1995. The court sentenced him to a base term of 18 years in prison and imposed a consecutive term of 150 years to life in prison. An immigration hold was placed on defendant, who appears to be a citizen of Mexico. On appeal, defendant contends that the prosecution failed to prove that any of the crimes occurred within the period for which he could be punished under the statute of limitations, and therefore his convictions must be dismissed or reversed; that the trial court erred by answering a question by the jury outside the presence of defendant and his counsel; and that the court further erred in instructing the jury on other crimes evidence and the credibility of a witness (defendant himself) who was previously convicted of misdemeanors. Court affirm the judgment.

Juan L. and Veronica C. are the unmarried parents of L. L., a three-year-old girl. Juan L. appeals from the juvenile courts order denying modification under Welfare and Institutions Code section 388[1]and ending his parental rights under section 366.26. He claims that the court abused its discretion in denying his modification request to institute family maintenance services and vacate the hearing at which parental rights could be ended. He also claims, in essence, that the beneficial-relationship exception applies against the courts order ending his parental rights. Veronica C. appeals from the courts order ending her parental rights on the ground that there is no substantial evidence to support the order. The juvenile court relied on evidence that Veronica C. was incapable of safely raising L. L. because of her continued substance abuse and other problems and that Juan L., though not similarly afflicted, could not ensure that no harm would come to L. L. if she remained in his care. The court ruled correctly as it is the best interest of L. L. that governs in these circumstances, and Court affirm the orders.

In this action to recover the proceeds of a loan obtained by fraud, the trial court entered judgment in favor of the lender. Court affirm.