CA Unpub Decisions

A modification decision.

William F. Garlock was a limited partner in South Van Ness Partners (SVN). Garlock appeals from a judgment for Charles M. Sprincin and Chariot SVN, LLC (Chariot), after the trial court sustained demurrers to Garlocks second amended complaint for breach of contract, fraud and conversion, and to the cancellation of instrument cause of action in the first amended complaint. The trial court concluded Garlock lacked standing to sue Sprincin and Chariot for damages arising out of Chariots contractual dealings with SVN. Court affirm.

The trial court placed defendant on probation after he pleaded no contest to making a criminal threat. (Pen. Code, 422.) Subsequently, the court found that defendant had violated his probation for having concealed stolen property. The court revoked and reinstated probation on modified terms and conditions. Defendant maintains that substantial evidence did not support his revocation of probation. Court affirm the judgment.

Appellant W. F. III appeals from a final judgment disposing of all issues between the parties. Appellants counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally.
Court have reviewed the entire record, and have concluded that there are no issues which require further briefing or argument. Appellants plea was voluntarily and knowingly entered. There was no error in the disposition, as it was fully supported factually, and was chosen by the trial judge in accordance with applicable juvenile law principles. Appellant was represented by counsel throughout the proceedings.

Frank G. (petitioner) is an alleged father in these dependency proceedings for infant child Vanessa A., born to Jennifer A. (the mother). Petitioner seeks review (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, 366.26, subd. (l)) of orders of July 2, 2007, establishing jurisdiction and setting a plan selection hearing for the child. Court dismiss his petition for lack of standing to raise these issues.

Jennifer A. (mother) seeks review (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, 366.26, subd. (l)(1)) of a jurisdictional and dispositional order of July 2, 2007, that also denied her reunification services, and set a plan selection hearing for her infant child, Vanessa A.[1] (In re Athena P. (2002) 103 Cal.App.4th 617, 624 625 [proper challenge is by writ, not appeal].) She challenges the jurisdictional findings and a placement decision. Court deny her petition on the merits.

Jahiem J., born in October 2003, was made a dependent of the Contra Costa County Juvenile Court in February 2006. (Welf. & Inst. Code, 300.) Pursuant to rule 8.452 of the California Rules of Court, his mother Kim W. (Mother) has filed a petition for extraordinary writ review of an order terminating reunification services and setting a hearing to select a permanent plan pursuant to section 366.26. Among her contentions are that there was insufficient evidence to support the juvenile courts finding that return of Jahiem would create a substantial risk of detriment to his well-being and that the court abused its discretion in finding that the Contra Costa Bureau of Children and Family Services (Bureau) provided reasonable reunification services. Court reject her contentions and deny the petition.

Defendant Ronal Antonio Castro appeals from his conviction, following a jury trial, of two counts of lewd act upon a child under the age of 14 years. In an opinion filed July 15, 2004, we affirmed the judgment. We subsequently granted defendants petition for rehearing in light of the United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). In an opinion filed April 22, 2005, we reversed the sentence only, concluding that the trial courts selection of the high term violated the principles set forth in Blakely. On September 7, 2005, our Supreme Court transferred the case to us, with directions to vacate our prior decision and reconsider in light of People v. Black (2005) 35 Cal.4th 1238, overruled in part by Cunningham v. California (2007) 549 U.S., 127 S.Ct. 856 (Cunningham). In an opinion filed on November 30, 2005, we affirmed the judgment, including the sentence. On February 20, 2007, the United States Supreme Court vacated that judgment and remanded the case to us for further consideration in light of Cunningham. Court hereby issue the following decision:

Carlos Paredes was convicted of two counts of voluntary manslaughter (Pen. Code,[1] 192, subd. (a)) for causing the deaths of Monique Almanza and Raymond Flores. On appeal, he challenged his conviction for the voluntary manslaughter of Almanza on the basis that the doctrine of transferred intent was inapplicable; claimed that the trial court erred in providing additional instruction on transferred intent; and contended that the trial court violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) by basing his sentence on facts neither found by the jury nor admitted by Paredes. Court previously rejected these arguments and affirmed the judgment. The California Supreme Court then transferred this matter back to this Court with directions to vacate the prior decision and to reconsider the cause in light of decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. On remand, Court again affirm.

Mark Diaz was convicted of sexual penetration of a victim who was unable to resist due to intoxication, anesthesia, or controlled substance (Pen.[1]Code, 289, subd. (e)), two counts of oral copulation by means of intoxication, anesthesia or controlled substance ( 288a, subd. (i)), and two counts of rape by intoxication, anesthesia or controlled substance ( 261, subd. (a)(3)). He appealed his conviction and sentence on six grounds, alleging that: (1) the primary evidence against him, a videotape, was improperly seized and should have been suppressed; (2) the videotape was inadmissible hearsay and its admission violated his rights under the Confrontation Clause of the United States Constitution; (3) there was insufficient evidence of the victims inability to give consent; (4) the instructions on the subject of rape improperly created a mandatory presumption and shifted the burden of proof to him; (5) the trial court improperly denied his motion for a new trial; and (6) the imposition of upper term and consecutive sentences violated his Sixth Amendment right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We previously affirmed the convictions but imposed midterm sentences on three counts. The California Supreme Court then transferred this matter back to this Court with directions to vacate our prior decision and to reconsider the cause in light of decisions in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. On remand, our opinion is altered only in Section VI, concerning sentencing. Court affirm the convictions but remand for resentencing.

In case No. LA043208, Victor Manuel Molina (defendant) was charged with murder (Pen. Code, 187; count 1);[1] assault on a child under eight years of age resulting in death ( 273ab; count 2); child abuse ( 273a, subd. (a); count 3); and child beating ( 273d; count 4). The information alleged the intentional infliction of great bodily injury ( 12022.7, subd. (a)) in count 1 and the intentional infliction of great bodily injury on a child under the age of five years ( 12022.7, subd. (d)) in counts 3 and 4, and that defendant had a prior serious felony conviction requiring a five-year enhancement and triggering the sentencing scheme in the Three Strikes law ( 667, 1170.12).[2] There were two trials. During the initial trial, the jury returned verdicts of guilty of child abuse (count 3) and of child beating (count 4), with a finding that the intentional infliction of great bodily injury on a child under the age of five years was true. The jury acquitted defendant of first degree murder, but was deadlocked as to second degree murder (count 1) and assault (count 2). The trial court declared a mistrial, and defendant was retried on second degree murder and assault on a child under eight years of age resulting in death. In the second trial, the jury returned guilty verdicts on second degree murder and assault on a child under eight years of age resulting in death. In bifurcated proceedings, defendant admitted the prior serious felony conviction, a 1999 conviction of voluntary manslaughter in case No. BA176184.
The judgment is affirmed. Court order the clerical error in the abstract of judgment to be corrected to reflect the second degree murder conviction, in lieu of a conviction of first degree murder. Upon issuance of the remittitur, the superior court cause its clerk to prepare an amended abstract of judgment and send it to the California Department of Corrections and Rehabilitation.

Edgar Moises Armenta and Johnny Armenta appeal from judgments entered following the convictions by jury of Edgar Moises Armenta on count 1 possession of a controlled substance for sale (Health & Saf. Code, 11378) personally armed with a firearm (Pen. Code, 12022, subd. (c)), and count 2 possession of a controlled substance with a firearm (Health & Saf. Code, 11370.1, subd. (a)), and the conviction by jury of Johnny Armenta on count 1 possession of a controlled substance for sale (Health & Saf. Code, 11378) with a court finding he suffered a prior felony conviction (Pen. Code, 667, subd. (d)). The court sentenced Edgar Moises Armenta (Edgar) and Johnny Armenta (Johnny) to prison for eight years and six years, respectively. Edgar claims the trial court committed trial and sentencing errors. Johnny claims the trial court committed sentencing errors. As to Edgar, we affirm the judgment in part, vacate it in part, and remand with directions. As to Johnny, Court affirm the judgment.

Defendants and appellants, Damion Varnado and Bryan Varnado, appeal from the judgments entered following their convictions, by jury trial, for first degree murder and possession of a firearm by a felon (Damion only), with firearm enhancements (Pen. Code, 187, 12021, 12022.53). Sentenced to state prison for 50 years to life (Damion) and for 25 years to life (Bryan), defendants claim there was trial error. In their accompanying habeas corpus petitions, defendants contend they were denied the effective assistance of trial counsel. The judgments are affirmed; the habeas corpus petitions are denied.

Ricko Reed appeals a judgment following conviction of attempted willful, deliberate, and premeditated murder, and shooting at an inhabited dwelling, with findings of personal firearm use and acts committed to benefit a criminal street gang. (Pen. Code, 189, 664, 246, 12022.53, subds. (b), (c), (d), & (e), & 186.22, subd. (b)(1).) Court affirm.