CA Unpub Decisions

Jeffrey Josephson appeals an order granting the request of his former spouse, Anne Josephson, to change primary physical custody of their 12-year-old son Joseph from Jeffrey in Belfair, Washington to Anne in San Diego, where Joseph's 10-year-old sister Julianna lives. Jeffrey contends the court erred by: (1) applying a best interests standard to Anne's request for change in custody in the context of the parties' 2004 stipulated custody order being a final judgment requiring application of the changed circumstances standard; (2) relitigating the 2004 custody determination to modify the original custody order absent a showing of a substantial change of circumstances; and (3) misapplying the holding of In re Marriage of Williams (2001) 88 Cal.App.4th 808 (Williams) to find there was no compelling reason to have Joseph and Julianna continue to live in separate homes. court conclude the court applied the correct standard when it evaluated Anne's request for a change in Joseph's custody. Court further conclude the court properly found Joseph's best interests were served by ordering his primary residence to be with Anne.

Hugo G. appeals an order terminating his parental rights to his daughter, N.G. He contends that he was denied due process because he was not provided with notice of the Welfare and Institutions Code section 366.26 hearing. Court affirm the order.

Alleging ineffective assistance of counsel (IAC) and insufficiency of the evidence, respectively, defendant Geraldo Croll Bascomb, III (defendant) appeals his convictions for first degree murder and assault with a deadly weapon. Court affirm.

Objector and appellant Veronica D. (mother) is the natural mother of Michael M. (the child), a dependent child of the juvenile court. Mothers parental rights were terminated. Mother appeals contending that the juvenile court failed in its duty to ensure she was asked whether the child had any Indian ancestry for purposes of the Indian Child Welfare Act (ICWA). Court affirm.

In his response filed in May 2005, appellant identified the orders he appeals from as being orders to show cause and refusals by the superior court clerk to file appellants pleadings.
Court conclude that the orders to show cause were not appealable.

After a jury found John Eldon Moss guilty of possession of concentrated cannabis and misdemeanor possession of marijuana and he admitted a serious felony prior, the court sentenced him to an aggregate term of five years and four months in state prison four years (double the midterm) on the felony, six months concurrently on the misdemeanor, one year and four months consecutively on two felonies on which he was on probation at the time (eight months consecutively for injuring a telegraph, telephone, or cable television line and eight months consecutively for attempted burglary), and two years concurrently on a third felony on which he was on probation at the time (possession of methamphetamine). (Health & Saf. Code, 11357, subds. (a), (c), 11377, subd. (a);[1]Pen. Code, 459, 591, 664, 667, subds. (b)-(j), 1170.12, subds. (a)-(e).)
On appeal, Moss argues that the court erred in instructing the jury with language from section 11362.795 on the use of medical marijuana by a person on probation. The Attorney General argues the contrary. Court affirm the judgment.

This court previously determined that activities related to the decision of Yosemite Community College District (District) to close and remove a shooting range from Modesto Junior Colleges (MJC) west campus constituted a project for purposes of the California Environmental Quality Act (CEQA).(Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629 (ACE I).) As a result, Court directed District to conduct an initial environmental study of the whole of the action that constituted the project.

A jury convicted Ricardo Lopez of carjacking (Pen. Code, 215, subd. (a); all further statutory references are to this code unless noted otherwise) and second degree robbery ( 211, 212.5 subd. (c)), and found true the enhancement for personal use of a firearm during the commission of these felonies ( 12022.53, subd. (b)). Defendant contends no substantial evidence supports his convictions or the enhancement. He also argues, and the Attorney General concedes, he should not be required to register as a gang member under section 186.30 because there was no evidence his offenses were gang-related. Finally, he contends imposition of the upper term on his carjacking conviction violated his Sixth Amendment right to a jury trial. Court agree the gang registration requirement must be stricken, but in all other respects Court affirm the judgment.

Defendant Mark Anthony Crenshaw appeals from a judgment of conviction entered after he pleaded guilty to attempted grand theft (Pen. Code, 664, 484, 487, subd. (a) - count 1) and vandalism ( 594, subds. (a), (b)(1) - count 2), and admitted that he suffered a prior prison term ( 667.5, subd. (b)). The trial court sentenced defendant to 28 months in state prison. On appeal, defendant contends that trial counsel rendered ineffective assistance, or, alternatively, that the judgment must be modified to reflect the terms of the negotiated agreement. As modified, the judgment is affirmed.

Defendant was convicted by jury trial of attempted murder (Pen. Code, 187, 664), assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and first degree robbery in concert (Pen. Code, 213, subd. (a)(1)(A)). The trial court committed him to state prison for a term of 28 years and four months. On appeal, he asserts that (1) the trial court abused its discretion in denying his pre-trial Marsden[1] motion, (2) the trial court prejudicially erred and violated his constitutional rights when it instructed the jury that two witnesses were accomplices as a matter of law, (3) the trial courts imposition of a consecutive sentence for the robbery count violated Penal Code section 654, and (4) the trial courts imposition of an upper term for the attempted murder count violated his federal constitutional right to a jury trial. Court conclude that the trial courts imposition of an upper term violated defendants federal constitutional rights, and therefore Court reverse and remand for resentencing.

The mother in this dependency proceeding appeals from the termination of her parental rights. (Welf. & Inst. Code, 366.26.)[1] She argues that she was deprived of due process because the juvenile court failed to conduct a proper inquiry before deciding not to appoint a guardian ad litem for her, and further that the court improperly based its decision on matters not reflected in the record. She contends that these errors not only require reversal of the order terminating parental rights, but also render void all prior orders, and she asks that we remand the matter so that the court may hold a hearing on the appointment of a guardian ad litem.
Court find that the court conducted an adequate inquiry before deciding not to appoint a guardian ad litem for the mother. There was no due process violation or abuse of discretion. Court therefore affirm the order terminating parental rights.

Ralph Olmedo (appellant) was convicted, following a jury trial, of two counts of continuous sexual abuse of a child. On appeal, he contends (1) the trial court erred in admitting evidence of prior uncharged sexual offenses; (2) the trial court erred when it refused to allow a defense expert to testify; (3) the trial court erred when it refused to allow defense counsel to ask certain questions of a defense witness; and (4) the prosecutors misconduct during closing argument requires reversal of appellants conviction.
Appellant also has filed a petition for writ of habeas corpus, which we have consolidated with the direct appeal, alleging his counsel was ineffective for (1) failing to investigate information about appellants family providing the victims grandmother with money, at her request; (2) failing to timely object to and request an admonition regarding instances of prosecutorial misconduct during argument to the jury; and (3) failing to retain an expert in a timely manner and failing to adequately prepare the expert for and question her at an Evidence Code section 402 hearing. Court affirm the judgment and deny the petition for writ of habeas corpus.

Appellant Antonio Woods was convicted by a jury of murder, on an aider and abettor theory of liability, and of being a convicted felon in possession of a firearm. The trial court sentenced him to 25 years to life in prison. Appellant asserts that the trial court violated his right to a fair trial by an impartial jury when it excused a juror for health reasons. He further claims constitutional deprivation of his right to be present during the conference leading to discharge of the juror. Court affirm.

Dion McNeally appeals from his conviction, after a jury trial, of three counts of second degree robbery (Pen. Code, 212.5, subd. (c)). He challenges the conviction on count 3, arguing that the trial court failed to respond adequately to two of the jurys questions during deliberations. Appellant additionally contends the trial court erred in imposing the upper term sentence. Court reject these contentions and affirm the judgment.