CA Unpub Decisions

A jury convicted defendant Raul Castro Rodriguez of two counts of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, 288, subd. (a)[1] counts one and two), one count of committing a forcible lewd and lascivious act upon a child under 14 ( 288, subd. (b)(1) count three), and one count of committing a lewd and lascivious act upon a 14-year-old child while being at least 10 years older than the child ( 288, subd. (c)(1) count four). The jury also found true the allegation that defendant engaged in substantial sexual conduct with the victim in counts one and two. ( 1203.066, subd. (a)(8).) The court sentenced defendant to an aggregate term of 14 years and eight months. Defendant raises two issues on appeal. First, defendant argues that the court erred in denying his motion to suppress statements that he made in an interview with a sheriffs detective. Second, he contends that the abstract of judgment should be amended to accurately reflect his sentence. Court affirm the judgment and direct the trial court to correct the abstract of judgment.

The minor, Nathan L., was adjudged a ward of the court under Welfare & Institutions Code section 602[1]and committed to the California Youth Authority (CYA) for the maximum term of four years and six months. On appeal, he contends the juvenile court erred by failing to give him credit for all the time served and failing to exercise its discretion under section 731, subdivision (b) when fixing the maximum term of his commitment.
Court agree with the minor on both claims and shall reverse the order of commitment and remand the matter for further hearing and to award additional credits.

A jury convicted Michael R. MacKinnon of causing bodily injury to another person while driving under the influence (Veh. Code, 23153, subd. (a)); committing that same offense with a blood alcohol level higher than .08 percent (id., 23153, subd. (b)); reckless driving (id., 23103, subd. (a)); and driving with a suspended license (id., 14601.1, subd. (a)). The trial court sentenced MacKinnon to three years in prison.
MacKinnon contends that the evidence was insufficient to support the verdict. As Court explain, Court conclude that substantial evidence supports the verdict, and accordingly, Court affirm.

Francisco Varela pleaded guilty under a plea agreement to one count of possession of a controlled substance (Health & Saf. Code, 11352, subd. (a)) and one count of resisting an executive officer (Pen. Code, 69). Varela admitted two prior prison terms (Pen. Code, 667.5, subd. (b), 668) and one strike prior (Pen. Code, 667, subds. (b)-(i), 668, 1170.12). The court sentenced Varela to prison for 32 months: the low term of 16 months on the possession count, doubled, and a concurrent 16 month term, doubled, on the resisting an executive officer count. The court struck the two one year prison priors. Varela appeals. Court affirm.

On October 21, 2004, fellow Dogs Town gang members Ramon Tolentino Martinez, Gustavo Alonso Guevara, and Erik Garibay were driving in Rubidoux in Martinezs car. They drove past a rival gang members residence and yelled out, Dogs Town. Someone in Martinezs car shot at the residence. Ricardo Rios and several other persons were outside the home at the time of the shooting. At the same time, unidentified persons in a sports utility vehicle (SUV) also called out Dogs Town and shot at the residence. Martinez, Guevara, and Garibay were stopped by the police 10 minutes later. A stolen nine millimeter handgun was found secreted behind the glove box. Martinez and Guevara were convicted of the attempted murder of Ricardo, various discharging a firearm charges, receiving stolen property, being gang members in possession of a firearm, and active participation in a gang. Court find no prejudicial error but agree with Guevara that his sentence should be modified. Since the sentence was also imposed on Martinez and was unauthorized, we also modify his sentence. Court otherwise affirm the judgment.

Defendants Laura M. McDowell and Ricky L. Welch (defendants) appeal from judgments entered after a jury convicted them of possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine. (Health & Saf. Code, 11383, subd. (c)(1); count 3.) Welch also appeals his conviction for possession of methamphetamine for sale ( 11378; count 2). Welch admitted his two prior drug convictions and McDowell admitted a single prior drug conviction. ( 11370.2, subd. (b).) Prior to trial, the court dismissed count 1 (manufacturing methamphetamine) against defendants under Penal Code section 995.
Welch joins in McDowells contentions and adds that there was insufficient evidence to support his count 3 conviction because there was no evidence that the amount of ephedrine or pseudoephedrine in his possession was sufficient to manufacture a usable amount of methamphetamine. Welch also challenges his sentence on count 3, arguing that the trial court erred in imposing an aggravated term based on facts not found by the jury, in violation of Cunningham v. California (2007) 549 U.S., 127 S.Ct. 856, 864, 871 (Cunningham).
Court find no error and affirm the judgments against McDowell and Welch.

Defendant was charged with one count of first degree murder and one count of discharge of a firearm with gross negligence. ( 187, subd. (a), 246.3.) A jury convicted defendant of second degree murder and the firearm count. The jury found true the special allegations regarding use of a firearm and infliction of great bodily injury ( 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (d), 12022.7, subd. (a).) The court sentenced defendant to a total prison term of 46 years to life, 40 years on count 1 and six years on count 2.

On appeal, defendant challenges the admissibility of his statements to the police and the evidence of one prior uncharged shooting. Regarding count 2, he contends the upper term of three years was improper ( 246.3) and there was insufficient evidence to support the three-year enhancement for great bodily injury. ( 12022.7, subd. (a).)[2]

Court agree there was insufficient evidence of great bodily injury and reverse the true finding on the enhancement for count 2. In consequence, the three year upper term for count 2 was not justified. Court remand to the trial court for resentencing on count 2 under the current sentencing law. (People v. Sandoval (2007) 41 Cal.4th 825, 835-837; 1107, subd. (b); Cal. Rules of Court, rules 4.405-4.452.) Otherwise, Court affirm the judgment.

Matt Tyson (Tyson) and the Fontana Police Officers Association (FPOA) appeal from a judgment denying their petition for writ of mandate. They challenge the trial courts holding that the Memorandum of Understanding between the FPOA and the City of Fontana (City) excluded persons who were involuntarily terminated from city employment from receiving retirement health benefits intended for employees, although they may be eligible to draw from the Public Employees Retirement System (PERS). Court affirm the judgment.

Defendant Jamal January appeals from his conviction of having a concealed firearm in a vehicle (Pen. Code,[1] 12025, subd. (a)(1)) and the jurys true finding that the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). Defendant contends the evidence was insufficient to support the true finding on the gang enhancement. We disagree. Defendant also contends that because the People did not prove he participated in felonious gang conflict distinct from the weapons offense, his conviction of the weapons offense must be reduced to a misdemeanor. Although we agree that the evidence did not support elevating the weapons offense to a felony under section 12025, subdivision (b)(3), defendant admitted a prior felony conviction which independently served to elevate the weapons offense to a felony, under section 12025, subdivision (b)(1). Defendant also challenges his sentence on the grounds that (1) applying section 186.22, subdivisions (a) and (b), violated the rule against multiple punishment under section 654; (2) the one-year enhancement for a prior prison term conviction must be stricken; and (3) the imposition of the aggravated term for his firearm offense violated his constitutional right to a trial by jury. We agree that the one year term under section 667.5, subdivision (b), must be stricken because it was based on the same prior conviction that supported the imposition of a five year enhancement under section 667, subdivision (a). Court find no other errors, and in all other respects Court affirm the judgment.

On June 13, 2006, Brian Cronin (appellant) went to the home of Sandra S. and her sister where he had several drinks and played darts in the garage. Sandra went to bed only to be awakened at approximately 11:30 p.m. by appellant, who rubbed against her leg, and asked her to call her sister for him. When Sandra went to the kitchen to use the telephone, she noticed her hearing impaired daughter was visibly upset. The daughter reported to Sandra that appellant had pulled up her shirt while she was asleep and fondled her breasts.
Court have completed our independent review of the record and find no arguable issues.

Appellant Diana M. (mother) appeals from a Welfare and Institutions Code[1]section 366.26 order terminating parental rights to four of her children. On appeal, mother argues that the order terminating parental rights should be reversed since the Riverside County Department of Public Social Services (the department) failed to comply with notice provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; hereafter, ICWA). Court affirm the order.

Plaintiff Carlos Hernandez appeals from a judgment dismissing his complaint following the trial courts denial of plaintiffs motion for relief from claim requirements under Government Code section 946.6. Court find no error, and Court affirm.

Appellant, Jerry S., father of a minor girl, E.W.,[2]appeals from the order finding E.W. adoptable and terminating his parental rights. His main argument on appeal is that the juvenile court did not give preferential consideration to Virginia S., his mother and E.W.s paternal grandmother, for placement. For factual and legal reasons, Court affirm the judgment.

Jennifer N. is the mother of three children who were removed upon the filing of a supplemental petition alleging that the previous disposition had been ineffective in alleviating the causes of removal. (Welf. & Inst. Code, 387[2].) At the contested jurisdictional hearing on the supplemental petition, mother requested a continuance so she could attend oral argument in the Court of Appeal, scheduled for the same date. She also sought removal of the social worker due to a conflict of interest which arose when mother filed lawsuits against several governmental entities and reunification service providers, including the assigned social worker. The court denied both requests and this petition follows.
The contested jurisdiction/disposition hearing on the supplemental petition was heard simultaneously with the 12-month review hearing, at which the juvenile court denied mothers requests and ordered a permanent plan of guardianship. The court set a permanency planning hearing date for January 29, 2008, as the date by which the guardianship could be finalized. Mother challenges the orders denying her requests by way of the instant writ petition but does not challenge the permanent plan or the termination of services. Court deny the petition.