CA Unpub Decisions

The juvenile court declared Omar C. a ward (Welf. & Inst. Code, 602) after he was found guilty of carjacking (Pen. Code, 215, subd. (a)), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), grand theft of an automobile ( 487, subd. (d)), taking or driving a stolen vehicle (Veh. Code, 10851, subd. (a)), and possession of a dirk or dagger ( 12020, subd. (a)(4)). The court placed him on probation and committed him to Camp Barrett for a maximum 365 days. Omar contends the trial court erred in finding he violated Vehicle Code section 10851, subdivision (a), because section 10851, subdivision (a) is a lesser included offense within grand theft of an automobile.The court's finding that Omar violated Vehicle Code section 10851, subdivision (a) is reversed. The remainder of the juvenile court order is affirmed. The trial court shall modify its minutes to so reflect.

Jacob B., the biological father of A.B., appeals the judgment terminating his parental rights under Welfare and Institutions Code section 366.26. Jacob contends his due process rights were violated because he was not given proper notice at the beginning of A.'s dependency case and not allowed to establish his paternity before the permanent planning hearing was set. Jacob also contends he was not afforded effective assistance of counsel.

Petitioner Paulina R. (Mother) is the mother of two-year-old Alize R. Mother filed this writ petition pursuant to California Rules of Court, rules 8.452 challenging an order setting a Welfare and Institutions Code section 366.26 permanency planning hearing as to the child. Mother contends that the juvenile court erred in (1) denying her request for a continuance and (2) finding that return of the child to Mother would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. For the reasons provided below, we reject Mothers challenge and deny her petition. The petition for extraordinary writ is DENIED.

A jury found defendant Joshua Thomas Rodriguez guilty of two counts of corporal injury to a cohabitant with a prior conviction of the same. (Pen. Code,[1] 273.5, subd. (e).) The court sentenced defendant to concurrent upper terms for these offenses. Defendant appealed, claiming the court violated his Sixth and Fourteenth Amendment rights under the United States Constitution by imposing the upper term without a jury determination of the aggravating circumstances. We affirmed the judgment in an unpublished opinion. On February 20, 2007, the Supreme Court of the United States granted defendants petition for writ of certiorari. The court vacated the judgment in this case and remanded the matter to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Court have further considered the matter. Court again affirm the judgment.

On the night of February 18, 2005, Jordan Batess boyfriend Nathan Banks asked appellant Dedrick Donyell Langston to give him and Bates a ride in his van to pick up a bag of weed. Banks and Langston were both smoking PCP. Langston drove Banks and Bates to an alley near Joe Sanderss apartment in Bakersfield. Bates went to the apartment while Banks and Langston stayed in the alley. Michael Colbert and Louis Steele were inside the apartment. Sanders was in Los Angeles. Bates gave Colbert some money, he gave her some weed, and she left.
The matter is remanded with directions to strike from the judgment the stayed 25-to-life enhancement for personal and intentional discharge of a firearm causing great bodily injury or death in the conspiracy to commit first degree residential robbery in concert with others count ( 182, subd. (a)(1), 212.5, subd. (a), 213, subd. (a)(1)(A), 12022.53, subd. (d)) and to issue, and to send to all appropriate persons, certified copies of the amended abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 187-188.) Langston has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) Otherwise the judgment is affirmed.

Fearing that a girl he knew as Pooh might steal something from his apartment in Bakersfield, Joe Sanders asked his neighbor Michael Colbert to stay there while he was in Los Angeles on the night of February 18, 2005. Colbert and his friend Louis Steele were at Sanderss apartment when Jordan Pooh Bates knocked at the door and walked into the bedroom, where she stayed by herself for about a minute before she left.
Moments later, Bates returned to the apartment with her boyfriend Nathan Banks and Dedrick Langston. Banks and Langston both had handguns. Banks ordered Colbert onto the floor. Colbert recognized his voice as that of the caller who had asked him earlier that night where the shit was. The next day, police found Banks at the residence where the call originated. The judgment is affirmed.

Defendant Todd Anthony Andrade challenges the sentence imposed on him pursuant to a plea bargain. He contends the trial court was prohibited by the Sixth and Fourteenth Amendments to the federal Constitution from basing his sentence, in part, on a prior juvenile adjudication in which defendant had no right to a jury trial. Whatever merit this argument might have in the abstract (and we note it uniformly has been rejected by California appellate courts [see, e.g., People v. Palmer (2006) 142 Cal.App.4th 724, 731-734]), in the present case the argument is particularly meritless. Accordingly, Court affirm the judgment.

A jury convicted defendant Ponciano Murillo of second degree robbery of four victims, attempted second degree robbery of a fifth victim, and street terrorism. It also found true the allegations the crimes were committed for the benefit of a criminal street gang. Defendant challenges the sufficiency of the evidence supporting the street terrorism charge and the criminal street gang enhancements. He also contends his due process and fair trial rights were violated when the trial court allowed the prosecutions gang expert to testify the crimes were committed for the benefit of a criminal street gang. Court find no error and affirm the judgment.

Julio Sanches appeals from a judgment in favor of Julios former wife, Sandra Sanches, in this action declaring Julios and Sandras respective interests in the former family home, in which Sandra has lived in since they divorced in 1970. Julio raises numerous contentions, none of which have merit. Court affirm the judgment.

This court dismissed Luong Nguyens appeal before receiving counsels request for and extension of time to file appellants opening brief. By the time counsel realized the court had not received his request to reinstate the appeal, the dismissal had become final. Nguyen is asking the court to recall the remittitur, set aside the dismissal and reinstate the appeal. The Attorney General does not oppose Nguyens application for relief. The petition is granted.

According to counsel, he was retained to represent Luong Nguyen on appeal, which included filing the notice of appeal and all necessary documents and briefs. According to counsels declaration, soon after receiving the record from the Public Defenders Office in October 2006, he also received a letter from the court advising him that pursuant to California Rules of Court, rule 17(a)(1), the opening brief was due November 30. Although counsel mailed a request on November 28, for an extension of time to file the opening brief, he was advised by the court clerk that the appeal had been dismissed on December 1 without having received and/or acted upon [the] request for an extension of time. Appellants opening brief shall be filed within 30 days from the date of this order. This opinion is final as to this court forthwith.

On May 11, 2005, defendant Arthur Ray Green pled nolo contendere to possession for sale of cocaine base (Health & Saf. Code, 11351.5) and admitted he had one strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12) and two prior drug convictions (Health & Saf. Code, 11370.2, 11370, subds. (a), (c)). In exchange, the prosecution agreed he would receive a six-year prison term with the understanding that if defendants Romero[1] motion seeking dismissal of the strike prior was granted, defendant would receive three years. The court agreed that defendant would remain out of custody on the bail already posted until the sentencing date of June 30, 2005, but if he failed to appear or committed new criminal offenses during the interim, the court would not be bound by the plea agreement, defendant would not be allowed to withdraw his plea, and he could be sent to prison for the maximum term available for his offenses and priors, 16 years. Defendant agreed pursuant to People v. Cruz (1988) 44 Cal.3d 1247. The judgment is affirmed.

Martin Orlando Torres appeals his conviction by jury verdict of four counts of felony indecent exposure (Pen. Code, 314, subd. (1))[1]and seven counts of lewd act on a child under the age of 14. ( 288, subd. (a).) In a bifurcated proceeding the court found true the allegations that appellant had previously been convicted of three counts of violating section 288, subdivision (a) within the meaning of the Three Strikes law ( 667, subd. (b)-(i)) and within the meaning of the One Strike law ( 667.61, subd. (d)), and that he had two prior serious felony convictions. ( 667, subd. (a).) Appellant contends the trial court erroneously admitted evidence of prior misconduct, that it erroneously instructed that the jury could reject all testimony of a witness who testified falsely unless it believed the probability of truth favored his testimony (CALJIC No. 2.21.2), and that it failed to instruct on the elements of the One Strike law. He also contends his sentence of 380 years to life constitutes cruel and unusual punishment.
The judgment is affirmed.

This appeal involves a class action suit against Washington Mutual Bank, F.A., and Washington Mutual Home Loans, Inc. (collectively, defendant) challenging its practices in cancelling private mortgage insurance (PMI). In Cheol Shin (plaintiff) contends that defendant overcharged PMI premiums by unlawfully delaying cancellation of PMI insurance after the conditions for cancellation were satisfied, and unlawfully charged a PMI review fee exceeding the cost of the appraisal that established PMI was no longer needed. Plaintiffs motion for class certification was denied as to the delayed cancellation claims; the motion was granted as to the appraisal fee claims, but they were thereafter summarily adjudicated in defendants favor. The appeal contests the class certification ruling on the delayed cancellation claims, and the summary adjudication of the appraisal fee claims. The record does not support an abuse of discretion in refusing to certify the delayed cancellation class, and the court correctly concluded that the appraisal fee claim is untenable as a matter of law. Court therefore affirm the orders.

Defendant Kenneth Silva appeals his conviction by no contest plea to possession of methamphetamine for sale (Health & Saf. Code, 11378), possession of a sawed off shotgun (Pen. Code, 12020, subd. (a)(1)) and possession of methamphetamine (Health & Saf. Code, 11377, subd. (a).) His sole contention on appeal is that the magistrate erroneously denied his motion to suppress evidence (Pen. Code, 1538.5, subd. (m).) Court reject the contention and affirm.