CA Unpub Decisions

Christopher Killebrew appeals the sentence imposed after he entered a guilty-plea to the charge of second degree robbery, in violation of Penal Code section 211,[1] and admitted allegations he personally used a firearm ( 12022.53, subd. (b), 1203.06, subd. (a)(1)(B)) and inflicted great bodily injury ( 12022.7, subd. (a), 1203.075, subd. (a)(2).) Appellant contends: (1) the trial court abused its discretion by failing to impose the mitigated term; (2) the trial court improperly based the upper term on factors also used to justify sentencing enhancements; and (3) the trial court abused its discretion by failing to strike the enhancement for inflicting great bodily injury, pursuant to section 1385. Court affirm.

Pursuant to a negotiated disposition, appellant Sandra Ann Belisle pled guilty to first degree burglary (Pen. Code, 459, 460) on condition that there be no immediate State Prison. Consistent with the negotiated disposition, appellant was granted probation on certain terms and conditions. After a series of probation violations, reinstatements and modifications of probation, and extension of the probationary term, the trial judge revoked probation and sentenced appellant to the aggravated term of six years in state prison. Judgment affirmed.

Thomas Dewayne Long was convicted of possession of methamphetamine. He argues that the trial court had no authority to revoke his probation because his probation violations were drug-related within the meaning of Proposition 36. (Pen. Code, 1210 et seq.) Court disagree and affirm.

Appellant Stephen Craig Martin appeals from a judgment imposed after the revocation of probation and imposition of a term of imprisonment. Appellants counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
The judgment is modified by striking the imposition of a $10 court security fee and directing the imposition of a $20 court security fee.

Charles Spencer Reed appeals from a judgment entered after he pleaded no contest to evading a pursuing peace officer (Veh. Code, 2800.2, subd. (a)), unlawful driving or taking a vehicle (Veh. Code, 10851, subd. (a)), and receiving stolen property (Pen. Code, 496, subd. (a)). His counsel on appeal has filed an opening brief that asks this court to conduct an independent review of the record as is required by People v. Wende (1979) 25 Cal.3d 436. Counsel also informed appellant that he had the right to file a supplemental brief on his own behalf. Appellant declined to file such a brief. Court conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436. (See also, People v. Kelly (2006) 40 Cal.4th 106.)
The judgment is affirmed.

Kief G. petitions this court (Cal. Rules of Court, rules 8.450, 8.452) for writ relief from the juvenile courts order terminating reunification services and setting a permanent plan hearing (Welf. & Inst. Code, 366.26) with respect to his son Keifer G. Petitioner asserts he was denied adequate reunification services. The petition for a writ is denied.

Joe Qusta Nino and Miguel Torres appeal from the judgment entered after a jury convicted them of first degree murder (Pen. Code, 187, subd. (a)) and conspiracy to commit murder (Pen. Code, 182, subd. (a)(1)). During jury selection, Nino and Torres twice objected that the prosecution was exercising its peremptory challenges to eliminate women and minorities, but the trial court found no prima facie case to support their claims and denied their motions. Because six of the prosecutors seven peremptory challenges were aimed at women and minorities, and because most of her stated reasons for doing so are not adequately supported by the record, Court conclude that a prima facie case existed and therefore reverse and remand for a new trial.

Defendant Abraham Gomez pled guilty to possession of a stolen vehicle (Pen. Code 496d, subd. (a)) and was later sentenced to three years of probation on the condition that he serve 180 days in jail. During the sentencing hearing, defendant objected to two probation terms, namely, that he notify his probation officer in writing 24 hours in advance of any change in pets, and that he submit to, and cooperate in, field interrogations at any time. The trial court overruled these objections and defendant raises them on appeal. As the trial court set legitimate probation terms in order to rehabilitate defendant and promote public safety, Court affirm.

Defendant, Terrion Engram, was charged with attempted premeditated murder (Pen. Code, 187, subd. (a) and 664)[1] and first degree burglary ( 459). The jury rejected the murder charge but found him guilty of burglary. Defendant asserts that the trial court failed properly to charge the jury on the elements of burglary and to define the offense he intended had he gained admission to the house. The People claim the failure to describe the crime had defendant been able to enter the house was harmless beyond a reasonable doubt because the jury must have concluded that defendant intended to attack his ex girlfriend, Heidy Acosta (Acosta), whom he had earlier stabbed with a knife.
Court find that the jury was not properly instructed as to the elements of burglary and remand the case for a new trial.

The primary issue in this case is the nature of a financial transaction between plaintiffs Richard and Kathryne Gilbert and defendant A. L. Wisdom. Plaintiffs argue that the transaction was a loan subject to the usury laws, and that the interest on the loan was usurious. Defendant argues that the transaction was a refinance of an existing purchase money loan on real property, and a bona fide credit sale. Accordingly, he finds the usury law inapplicable. After plaintiffs filed a motion for summary adjudication, the trial court found that the transaction was a loan at a usurious rate of interest. Defendant appeals the resulting judgment. Court agree with the trial court that the transaction was a loan with a usurious interest rate, and we affirm the trial courts decision on the motion for summary adjudication on the usury cause of action. However, we agree with defendant that the subsequent procedure for entry of judgment was faulty, and we therefore reverse the judgment and remand for further proceedings on the remaining causes of action.

Defendant Manuel Ruben Gallegos appeals from his conviction of grand theft by embezzlement. (Pen. Code, 487, subd. (a).) His sole contention on appeal is that the probation condition that requires him to [s]ubmit to and cooperate in a field interrogation by any peace officer at any time of day or night violates his Fifth Amendment privilege against self incrimination and therefore must be stricken. Court find no error, and affirm.

Defendant and appellant Alexxis S. (mother) appeals from an order of the juvenile court terminating her parental rights to Isaac S. (minor) under Welfare and Institutions Code section 366.26. Mothers sole contention on appeal is that the Riverside County Department of Public Social Services (Department) did not comply with the inquiry provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA). Court conclude that any error was harmless, and Court affirm.

Petitioner Vanessa V. (mother) is the mother of Elena M. (child), a dependent minor born in August 2004. In this petition, mother challenges the juvenile courts decision at the jurisdiction and disposition hearing on a supplemental (Welf. & Inst. Code, 387) dependency petition to remove the child from her custody, terminate reunification services, and set a section 366.26 permanent plan hearing. Specifically, mother argues: 1) there was not clear and convincing evidence of a substantial risk of danger to the child if left in mothers custody; and 2) there was not clear and convincing evidence that the minors physical health could be protected only by removal from mothers custody. As discussed below, Court reject mothers contentions and deny the petition.

Ernesto Ernie Martinez challenges his first degree murder conviction, contending the trial court prejudicially erred in admitting two witnesses prior statements to investigators. Defendant argues the prior statements constituted inadmissible hearsay because the prosecution failed to demonstrate the prior statements were inconsistent with the witnesses trial testimony. Defendant contends the courts ruling violated his right to confrontation because the witnesses inability to recall their prior statements made it impossible to conduct an effective cross examination.
Court find the prosecution presented an adequate foundation for admitting the prior statements of one witness, and that defendant failed to object to the admission of the other witnesss prior statements, thus waiving the issue on appeal. Finally, Court conclude the witnesses contrived failure to recall their prior statements did not violate defendants confrontation and due process rights because the witnesses were present and fully available for cross examination. Court therefore affirm.