CA Unpub Decisions

In case No. INF055143, filed by the District Attorney of Riverside County, defendant was charged with first degree murder, (Pen. Code, 187, subd. (a), 189, 190)[1](count one) and with personally discharging a firearm and causing death ( 12022.53, subd. (d), 1192.7, subd.(c)(8)). On January 31, 2007, pursuant to sections 859a and 1192.7, defendant, represented by counsel, pled guilty to count two of the amended complaint (second degree murder, 187) and admitted the personal use allegation filed pursuant to section 12022.5, subdivision (a). In accordance with the negotiated disposition, defendant was committed to state prison for an aggregate term of 25 years to life and in case No. INF036636 probation was revoked and terminated.

On March 8, 2007, the juvenile court found that four children fell within the jurisdiction of the dependency court within the meaning of Welfare and Institutions Code[1]section 300, subdivision (b), and removed them from mothers custody. Mother appeals, contending there is (1) insufficient evidence to support the finding of jurisdiction, (2) abuse of discretion in making the order removing the children from her custody, and (3) insufficient evidence to support the finding that the Indian Child Welfare Act did not apply. Court reverse in part and affirm in part and remand with directions.

Monique G. (hereafter mother) and Herminio Q. (hereafter father) appeal from the trial courts order under Welfare and Institutions Code section 366.26[1]terminating their parental rights to their daughter E.Q., who was two months old when removed from mothers custody, and nearly two years old at the time of the selection and implementation hearing. The San Bernardino County Department of Childrens Services (hereafter DCS) took two-month-old E.Q. into protective custody in September 2005 after mother was arrested on an outstanding warrant. The warrant came to light when a doctors office called the police after mother showed up at the office, apparently under the influence of drugs and/or alcohol, with a black eye and large bruises on her arm. Mother reported to the DCS social worker who responded to the call that father had hit her and E.Q. Although mother had bruises to support her assertion, E.Q. appeared to be unharmed. Mother told the social worker, among other things, that father, with whom she lived, was a big user of methamphetamine. Mother admitted that she also used methamphetamine and that she lived in a house that was known as a drug house.
We first address the assertion, raised by both mother and father, that the evidence does not support the trial courts finding that the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; hereafter, ICWA) does not apply in this case.
The order terminating parental rights is affirmed.

In 1995, Brandon Jason Hutton (defendant) pled guilty to committing a lewd and lascivious act on a child under the age of 14 (Pen. Code, 288, subd. (a)) and was sentenced to three years of probation. In 2006, defendant petitioned for a writ of error coram nobis to set aside his conviction on the ground he was insane at the time of his 1995 plea. The trial court denied the petition. Defendant appeals, claiming the trial court erred in denying his request for coram nobis relief. Court affirm, concluding the trial court did not abuse its discretion in denying defendants coram nobis petition because defendant failed to show the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him earlier. Court also grant defendants request for judicial notice.

On May 12, 2006, the Kern County District Attorney filed an information charging appellant Makes with, in count 1, transporting cocaine (Health & Saf. Code, 11352); in count 2, possession of cocaine base (Health & Saf. Code, 11350, subd. (a)); in count 3, false representation to a police officer (Pen. Code, 148.9, subd. (a)); and, in count 4, operating a vehicle without a drivers license (Veh. Code, 12500, subd. (a)). The information further alleged as to count 1 that appellant suffered a prior drug conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a), and as to counts 1 and 2, that appellant suffered a prior drug conviction within the meaning of Penal Code section 667.5, subdivision (b). The judgment is affirmed.

In January 1991, a jury convicted appellant, Jesus Cianez Hernandez, of first degree murder (Pen. Code, 187, subd. (a), 189)[1]and conspiracy to commit first degree murder ( 182, subd. (a), 187, subd. (a), 189), and found true allegations that the murder was carried out for financial gain ( 190.2, subd. (a)(1)), a special circumstance, and that in committing the murder appellant, personally used two different firearms ( 12022.5). In March 1991, the trial court imposed the death penalty.

In June 2003, the California Supreme Court reversed the judgment of death and vacated the special circumstance as to the conspiracy count. In August 2006, the trial court imposed sentence as follows: life in prison without possibility of parole on the murder conviction, 25 years to life on the conspiracy conviction, and three years on each of the firearm-use enhancements. The court stayed execution of sentence on the conspiracy count and the enhancements, and imposed two fines of $200 each, pursuant to sections 1202.4 and 1202.45, respectively. The court suspended the section 1202.45 fine pending successful completion of parole. On appeal, appellant contends, and the People concede, the court erred in imposing the section 1202.45 fine. Court agree.

Appellant, Edwin James Chambers, pled guilty to robbery (Pen. Code, 211)[1]and admitted a prior prison term enhancement ( 667.5, subd. (b)), a serious felony enhancement ( 667, subd. (a)), and allegations that he had two prior convictions within the meaning of the three strikes law ( 667, subds. (b)-(i)). On December 12, 2006, the court sentenced Chambers to 25 years to life. On appeal, Chambers contends: 1) the court abused its discretion when it denied his Romero[2]motion; and 2) his sentence is cruel and unusual under the state and federal constitutions. Court affirm.

The Santa Clara County District Attorney, via information dated May 11, 2006, charged defendant Anthony Jessie Martinez with possession for sale of cocaine (Health & Saf. Code, 11351), possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), possession of a controlled substance (Ritalin) without a prescription (Bus. & Prof. Code, 4060), and using or being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a)). A jury found defendant guilty of all four counts. On October 11, 2006, the trial court suspended imposition of sentence and placed defendant on three years of formal probation. Defendant argues that the prosecution relied primarily on circumstantial evidence at trial to prove the requisite intent for count 1, possession of cocaine for sale. Thus, defendant contends, the trial court erred in refusing to give the circumstantial evidence instruction regarding intent, CALCRIM No. 225. Although we agree that CALCRIM No. 225 should have been given, Court find the error harmless. Court therefore affirm the order of probation.

A modification decision.

Appellant challenges the orders of the juvenile court denying his Welfare and Institutions Code section 388 petition and terminating his parental rights to Shawna D. He contends that there was inadequate compliance with the notice provisions of the Indian Child Welfare Act. Court remand for notice to the Cherokee tribes and the Bureau of Indian Affairs. By separate order filed this day, Court deny appellant's petition for writ of habeas corpus.

K.A. (Mother) appeals from an order that terminated her parental rights and established a permanent plan of adoption for her daughter M. (Welf. & Inst. Code, 366.26.) She contends the court erred because of the parent child relationship she had with M. ( 366.26, subd. (c)(1)(A).). Court affirm the order.

Laura Roboubiat, appearing in propria persona, challenges the trial courts issuance of a restraining order preventing Roboubiat from contacting or harassing her former landlords, Tatiana and George Sky (collectively Sky). Roboubiat principally maintains: (1) the order is not supported by substantial evidence and was based on perjury; and (2) the trial judge was biased against her. Court reject Roboubiats arguments and affirm.

Oscar Daniel Holguin appealed from the judgment following his conviction by a jury of possession of a controlled substance, second degree burglary, forgery and forgery-related offenses with court findings he had served four separate prison terms for a felony. The trial court sentenced him to an aggregate term of seven years eight months in state prison. He complained of sentencing errors. In our opinion filed September 13, 2005, we affirmed in part and reversed in part. Our Supreme Court denied Holguins petition for review. However, after issuing its decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), the United States Supreme Court granted Holguins petition for writ of certiorari, vacated our opinion, and remanded the matter back to us for reconsideration in light of Cunningham. Upon reconsideration under Cunningham, as in our prior opinion, Court affirm in part and reverse in part.

Artice L. Brown appeals from the judgment entered after a jury convicted him of one count of rape, with a true finding as to a special allegation qualifying the conviction for sentencing under Californias One Strike law, and one count of second degree robbery. Court modify the judgment to reflect an award of 859 days of actual custody credit and, as modified, affirm the judgment.