CA Unpub Decisions

Kyle M. appeals from the findings and orders terminating dependency jurisdiction of his 18-year-old daughter, Danielle M. He argues the juvenile court failed to obtain a report from the Orange County Social Services Agency (SSA) verifying compliance with Welfare and Institutions Code section 391, subdivision (b), before terminating jurisdiction. In this unpublished opinion, we need not decide the issue of Kyles standing to raise the above contention because neither party addresses the issue. Proceeding on the assumption he has standing to appeal, he does not prevail on the merits. Court affirm the order.

A jury found defendant Andrew Silva guilty of attempted premeditated murder, first degree burglary, and stalking and further found that defendant personally used a deadly weapon in the attempted murder and burglary. (Pen. Code, 664, subd. (a), 187, 189, 459, 646.9, subd. (a), 12022, subd. (b)(1).) The court sentenced defendant to a life term with the possibility of parole for attempted murder with a consecutive one-year term for using a deadly weapon. The court also imposed a six-year aggravated term for burglary with a one-year term for using a deadly weapon but stayed both terms under Penal Code section 654. Last, the court imposed a consecutive eight month term for stalking.
On appeal from the judgment, defendant claims the court erred in (1) instructing the jury on implied malice in connection with the attempted murder; (2) admitting evidence of prior, unrelated misconduct toward a third party; (3) failing to stay the sentence for stalking; and (4) imposing an aggravated term for burglary based on facts not found by the jury.
Court agree with defendants last claim, reverse the judgment, and remand the matter for resentencing.

After a court trial, the court found defendant Javier Buenrostro guilty of attempting to commit a lewd and lascivious act on a child under 14, attempting to distribute harmful matter to a minor, and driving with a suspended or revoked license. (Pen. Code, 664, 288, subd. (a), 288.2, subd. (b); Veh. Code, 14601.1, subd. (a).) The court suspended imposition of sentence, placed defendant on probation for three years, and ordered him to pay various fines and fees, including a probation supervision fee of $64 per month. ( 1203.1b.) On appeal from the judgment, defendant claims there was insufficient evidence to support his conviction for attempting to distribute harmful matter, and the court erred in requiring him to pay a probation supervision fee as a condition of probation. Court affirm the judgment.

On numerous occasions over a two-year period, defendant stole large amounts of cash from her father-in-law. When he discovered that she was stealing from him, he confronted her, and she apologized and promised to stop. However, she continued to steal from him, and he reluctantly reported her conduct to the police. Her thefts amounted to over $300,000. Defendant had also failed to file income tax returns for several years. Defendant was charged by felony complaint with two counts of grand theft (Pen. Code, 484, 487, subd. (a)) and three counts of willfully failing to file income tax returns with the intent to evade any tax (Rev. & Tax. Code, 19706). It was further alleged that she had stolen more than $150,000 (Pen. Code, 12022.6, subd. (a)(2)) from her father-in-law.

In May 2006, defendant pleaded guilty to all five counts and admitted the enhancement allegation as part of a plea agreement under which she faced a maximum prison term of four years. In December 2006, defendant moved to withdraw her pleas on the ground that her trial counsel had not investigated the charges and had not discussed possible defenses with her. She also alleged that the prosecutor had suppressed favorable and exculpatory evidence. Her motion was denied, as was her motion for reconsideration. She was sentenced to four years in state prison and ordered to pay restitution. Defendant filed a timely notice of appeal and a request for a certificate of probable cause. Her request was denied. The judgment is affirmed.

On February 9, 2007, the Santa Clara County District Attorneys Office filed a petition, later amended, under Welfare and Institutions Code section 602 to declare Keith C., a minor, a ward of the court. The petition alleged two counts of second degree robbery. As to one of those counts, the petition alleged that the minor personally used a deadly or dangerous weapon and was ineligible for probation. The petition also alleged one count of misdemeanor battery and one count of aggravated assault and further alleged that the minor personally used a deadly weapon and inflicted great bodily injury in committing the assault. (Pen. Code, 211, 212.5, subd. (c), 242, 243, subd. (a), 245, subd. (a)(1), 1203, subd. (e)(2), 12022, subd. (b)(1), 12022.7.)
On appeal from the jurisdictional order and disposition, the minor claims that the weapons-use enhancement must be stricken and that there is insufficient evidence to support a finding that he inflicted great bodily injury. He also claims the court erred in calculating his MTC.
Court affirm the jurisdictional order but vacate the disposition and remand the matter for entry of a new one.

A.H. appeals a dispositional order of the juvenile court placing her on one year of probation following a wardship petition (Welf. & Inst. Code, 602) sustained for second degree robbery (count 1; Pen. Code, 211, 212.5, subd. (c)) and giving a peace officer false identification (count 2; Pen. Code, 148.9, subd. (a)). She claims no error in the disposition on the false identification count but challenges the robbery on two bases: (1) denial of her motion for a lineup under Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans), and (2) insufficient evidence. Court reject both challenges and affirm.

Lawrence Hayes was convicted of four counts of selling rock cocaine. (Health & Saf. Code, 11352, subd. (a).) The court also found true allegations that defendant had two prison term priors (Pen. Code, 667.5, subd. (b)), and an allegation that he had one prior conviction that qualified as a strike, under the Three Strikes Law ( 1170.12, subds. (a)(d); 667, subds. (b)(i)). The trial court is directed to correct the sentencing minute order and abstract of judgment to show that the section 667.5 subdivision (b) enhancements were stricken, and that defendant was convicted of four counts of violating Health and Safety Code section 11352, subdivision (a). As corrected, the judgment is affirmed.

Gurdial Athwal appeals contending the trial court erred when it ordered him to pay attorney fees to respondent Dillard Trucking (Dillard). Court disagree and affirm.

Jacqueline King appeals from an order striking her cross-complaint against the Law Offices of Sussman & Ziskin due to her failure to comply with Civil Code section 1714.10,[1]a gatekeeping statute designed to weed out frivolous conspiracy claims brought against attorneys and their clients in order to disrupt the attorney-client relationship. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 816-817 (Berg).) Because King did not comply with the prefiling requirements of section 1714.10, Court affirm.

Andre Brown appeals from the revocation of his probation. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he can file a supplemental brief with the court. No supplemental brief has been received. Upon independent review of the record, Court conclude that no arguable issues are presented for review, and affirm the judgment.

Leonel Hernandez appeals from a judgment entered upon his conviction by jury of assault (Pen. Code, 245, subd. (a)(1)).[1] The jury also found to be true the allegation that appellant personally inflicted great bodily injury during the assault within the meaning of section 12022.7, subdivision (a). The trial court sentenced appellant to an aggregate sentence of seven years; the upper term of four years for the assault and a consecutive term of three years pursuant to section 12022.7, subdivision (a). Appellant contends that imposition of the upper term sentence violated his right to a determination by a jury beyond a reasonable doubt of facts necessary to increase his sentence beyond the statutory maximum, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

We filed our original opinion in this matter on September 2, 2005. On February 20, 2007, the United States Supreme Court having granted appellants petition for writ of certiorari, vacated the judgment in this matter and remanded it to this court with directions to reconsider this matter in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
By order of August 6, 2007, we authorized the parties to file supplemental briefs for further consideration of this matter in light of Cunningham and the California Supreme Courts decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On September 25, 2007, appellant filed his supplemental brief, and, on October 9, 2007, respondent filed its responding brief. Having reconsidered the matter in light of the above mentioned recent authorities, Court now affirm.

In our prior opinion filed February 27, 2007, we remanded the matter for resentencing in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), and affirmed the judgment in all other respects. Our Supreme Court granted review. On September 12, 2007, it transferred the matter to this Court with directions to vacate our prior decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). As directed, we have reconsidered the matter and reviewed the parties' supplemental briefs on the sentencing issue. Court issue a new opinion.
Ulrick K. White appeals a judgment following his conviction, after trial by jury, of forcible rape (Pen. Code, 261, subd. (a)(2))[1]and false imprisonment ( 236). We conclude, among other things, that the trial court did not err by admitting a tape recording of a 911 call, but it erred by imposing the upper term for the rape conviction by relying on sentencing factors which were not tried by a jury. (Cunningham, supra, 549 U. S. __ [127 S.Ct. 856; 166 L.Ed.2d 856].) We vacate the sentence and remand for resentencing. In all other respects, the judgment is affirmed.

In our prior opinion filed March 22, 2007, we remanded the matter for resentencing in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), and affirmed the judgment in all other respects. Our Supreme Court granted review. On September 12, 2007, it transferred the matter to this Court with directions to vacate our prior decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). As directed, we have reconsidered the matter and reviewed the parties' supplemental briefs on the sentencing issue. Court issue a new opinion.
Jaime Juarez Garcia appeals a judgment after jury trial, following his conviction of making criminal threats (Pen. Code, 422),[1]corporal injury to a child's parent ( 273.5, subd. (a)), forcible oral copulation ( 288a, subd. (c)(2)), sexual battery by restraint ( 243.4, subd. (a)), and forcible rape ( 261, subd. (a)(2)). The court imposed an aggregate state prison term of 24 years and 8 months, which included an upper term sentence of 8 years for the forcible oral copulation count, and the upper term of 8 years for the forcible rape count. The court ruled that those sentences run consecutively.
Court conclude the trial court did not err by imposing consecutive sentences for Garcia's convictions of forcible oral copulation and forcible rape and properly imposed the upper term sentences. Court affirm.

Dennis Wayne Zumwalt appeals an order determining child support arrearage in the amount of $64,900 and ordering payment of the arrearage to his ex spouse, Sharon Zumwalt, at the rate of $400 per month. Court affirm the trial courts order.