CA Unpub Decisions

A petition was filed pursuant to the Welfare and Institutions Code section 602 on July 3, 2006, alleging that the minor committed second-degree robbery (Pen. Code, 664/211), and first degree residential burglary (Pen. Code, 459). On July 26, 2006, at the conclusion of the jurisdictional proceeding, the juvenile court found count one to be true and dismissed count two. Court have now concluded our independent review of the record and find no arguable issues.

Pursuant to a plea agreement, defendant pleaded guilty to willfully and unlawfully inflicting corporal injury resulting in a traumatic condition upon a cohabitant or spouse (Pen. Code, 273.5, subd. (a)). In return, the remaining allegations were dismissed, and defendant was placed on formal probation for three years on various terms and conditions, including serving 205 days in county jail. Defendants sole contention on appeal is that probation condition No. 10 that defendant [n]ot associate with any unrelated person on probation or parole must be modified or stricken as unconstitutionally vague and overbroad. Court agree with the parties that the relevant probation condition must be modified to require a knowledge requirement.

On February 21, 2007, the San Bernardino County District Attorney filed an original juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a), against minor Grant G. The petition alleged that the following felony violations occurred on February 18, 2007: (1) count 1violation of Penal Code section 215, subdivision (a), unlawful taking of a motor vehicle from Stephen P. and from the presence of his passenger; (2) count 2violation of Penal Code section 459, first degree residential burglary of an inhabited dwelling occupied by Doug F.; (3) count 3violation of Penal Code section 211, second degree robbery of Stephen P.; and (4) count 4violation of Penal Code section 211, second degree robbery of Jack F. Minor filed a timely notice of appeal. The judgment is affirmed.

Defendant and appellant Lamonte Dion Eason was charged with unlawful driving or taking of a vehicle. (Veh. Code, 10851, subd. (a).)[1] Pursuant to a plea agreement, defendant pled guilty. In exchange, the People agreed to dismiss another case against him (MVA052462). The court sentenced defendant to the stipulated middle term of two years in state prison. Defendant filed a notice of appeal stating that he was appealing from all issues of law and fact in this case. He then filed an amended notice of appeal challenging the sentence or other matters occurring after the plea. court affirm.

Petitioner E.S. (mother), mother of T.B. (age 8), Christopher S. (age 6), and Yasmine S. (age 4), filed this writ petition challenging an order, rendered at a 12-month review hearing, setting a hearing for the selection and implementation of a permanent plan for the children at a 12 month review hearing. Mother contends the juvenile court abused its discretion in finding there was not a substantial probability the children could be returned to her custody within the next six months, and in finding that visitation was detrimental. Court deny the petition.

During the early morning hours of September 15, 2003, appellant Michael Martin McKay entered the residence of the victim, stole money and jewelry from her and forced her to orally copulate him. A five-count information was filed charging him with forcible oral copulation, attempted rape, residential burglary, false imprisonment and making criminal threats. Enhancement allegations that the residence was occupied, that appellant committed the oral copulation during a burglary, that appellant personally used a knife, that he bound the victim and that he used a deadly weapon were alleged in connection with various counts. A prior strike and a prior prison term were alleged. Appellant entered dual pleas of not guilty and not guilty by reason of inanity. A psychiatric appointment order was filed. Although review of the doctors reports was calendared, no review hearing occurred.The conviction for assault with intent to commit rape is reversed.

Defendant Michael Wells was convicted by jury trial of evading a peace officer (Veh. Code, 2800.2)[1]and driving with a suspended license ( 14601.1, subd. (a)). The trial court sentenced defendant to 30 years to life in prison, including 25 years to life pursuant to the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), plus five years for prior prison terms served (Pen. Code, 667.5, subd. (b)).
On appeal, defendant contends (1) CALCRIM No. 2181 created a constitutionally impermissible mandatory presumption; (2) the trial court abused its discretion by refusing to dismiss defendants prior felony conviction strike allegations; (3) defendants sentence violates the prohibition against double jeopardy; and (4) defendants sentence constitutes cruel and/or unusual punishment. Court affirm.

Conrado[1]DeLaRosa Cruz (appellant) was charged with various offenses against four separate victims. Following a jury trial, appellant was convicted of one count of attempted forcible rape (Pen. Code, 664, 261, subd. (a)(2); count 1),[2]two counts of forcible rape ( 261, subd. (a)(2); counts 2 & 6), one count of attempted forcible sodomy ( 664, 286, subd. (c); count 4), three counts of assault with a deadly weapon ( 245, subd. (a)(1); counts 5, 8 & 11), one count of kidnapping to commit rape ( 209, subd. (b)(1); count 7), one count of simple assault ( 240; count 9), one count of attempted kidnapping ( 664, 207, subd. (a); count 10), and one count of assault with intent to commit rape ( 220; count 12). The jury found true the following aggravating circumstances: the use of a deadly weapon ( 12022.3, subd. (a); counts 1 & 4), multiple victims and the use of a deadly weapon ( 667.61, subds. (a), (b), & (e); count 2), multiple victims, kidnap of the victim and movement which increased the risk of harm to the victim ( 667.61, subds. (a), (b), (d), & (e); count 6), and use of a deadly weapon ( 12022, subd. (b)(1); count 10).
On appeal, we agree with appellants contentions that the trial court erred when it imposed an incorrect sentence for an enhancement and that several corrections need to be made to the abstracts of judgment. court disagree with appellants claim that his conviction of kidnapping to commit rape in count 7 was a lesser included offense of forcible rape in count 6. In all other respects, the judgment is affirmed.

On May 11, 2006, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging that appellant, Danny H., possessed live ammunition, a misdemeanor (Pen. Code, 12101, subd. (b)(1), count one) and drove without a drivers license (Veh. Code, 12500, subd. (a), count two). The petition stated the petitioner intended to aggregate the terms of previously sustained petitions. On May 12, 2006, Danny admitted driving without a license and the other count was dismissed. At the disposition hearing on October 26, 2006, the court committed Danny to the Juvenile Justice Center for a term not to exceed 365 days. On appeal, Danny contends the juvenile court erred in failing to appoint an educational representative.

In this marital dissolution action between petitioner/appellant Linda Mae Silva (Linda) and respondent Wayne Joseph Silva (Wayne), Linda appeals from the judgment of dissolution which divided the couples community property, and ordered Wayne to pay Linda an equalizing payment of $24,944, spousal support of $750 per month for ten months, and $5,000 in attorney fees.[1] Linda contends the trial court erred when it (1) determined that a residence purchased during marriage with community property funds pursuant to an oral option to purchase made before the marriage was Waynes separate property, which he held in trust for the benefit of his former step-grandchildren; (2) failed to find Wayne breached his fiduciary duty when he did not file income tax returns for three years and had his bookkeeper sign Lindas name to their income tax returns for two years; (3) failed to consider Waynes wealth when setting spousal support; and (4) failed to award Linda adequate attorney fees. As we shall explain, Court affirm.

On September 19, 2006, appellant, Ray Dimery III, was charged in a criminal complaint with feloniously making a criminal threat (Pen. Code, 422, count one),[1]being a convicted felon in possession of a firearm ( 12021.1, count two) and misdemeanor vandalism ( 594, subd. (a), count three). The complaint alleged that appellant had a prior serious felony conviction in 1990 for robbery within the meaning of the three strikes law ( 211, 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). On October 3, 2006, the court granted the prosecutors motion to amend count two to allege a violation of subdivision (a)(1) of section 12021 and to add, by interlineation, a prior prison term enhancement allegation ( 667.5, subd. (b)) for the 1990 robbery. The parties entered into a plea agreement whereby appellant agreed to plead no contest to count two and admit the three strikes allegation and the prior prison term enhancement. The court indicated a prison term of three years and agreed to exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike the prior serious felony allegation. The judgment is affirmed.

On November 21, 2006, pursuant to a plea agreement, appellant Genaro Ochoa pled no contest to kidnapping (Pen. Code, 207, subd. (a)) and admitted an enhancement allegation that in committing that offense he personally used a dangerous or deadly weapon, viz., a knife (Pen. Code, 12022, subd. (b)(1)). On January 8, 2007, the court imposed a prison term of six years, consisting of the five-year midterm on the substantive offense and one year on the 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.

Petitioner James Spray is qualified to use marijuana for medical purposes under Californias Compassionate Use Act (CUA). (Health & Saf. Code, 11362.5.) Because of this, he was not prosecuted for any drug offenses after the police found marijuana in his residence. However, the police kept the marijuana, and the trial court denied Sprays request for its return. Court find Spray is entitled to the return of his marijuana and therefore grant his petition for relief.

In April 2004 Becky Mitchell sustained serious injuries in an auto collision with a stolen Papa Johns pizza delivery truck. The truck was a blue 2003 Chevrolet Silverado, stolen from a parking lot in Fullerton. The delivery driver left the trucks key in the ignition, and it was subsequently stolen by someone variously described as a vagrant, transient and car thief. Mitchell sued Shawn and Robert Collier, the franchisees of that particular Papa Johns location. The trial court sustained the Colliers demurrer to Mitchells first amended complaint, without leave to amend and Mitchell now appeals. (There is no issue in this appeal concerning any claims that Mitchell might have presented to her own insurance company based on her uninsured motorist coverage; we doubt that the car thief has his own insurance.)
There is no issue in this case that Mitchell possesses any additional facts that she could add to her complaint. Accordingly, the trial court was correct in sustaining the Colliers demurrer to Mitchells first amended complaint and in denying her another opportunity to amend. The judgment is thus affirmed.