CA Unpub Decisions

A petition was filed to extend the commitment of defendant Kenneth William Christian as a sexually violent predator (SVP). (Welf. & Inst. Code, 6604.1, subd. (b).) Waiving his right to a jury trial and to confront and cross-examine witnesses, defendant submitted the matter on the written doctors reports for both the probable cause hearing regarding the matter and the decision whether he should be recommitted as a SVP. He did so with the understanding that different doctors would evaluate him regarding a subsequent recommitment proceeding.
Court find no arguable error that would result in a disposition more favorable to defendant.
The judgment (order of recommitment) is affirmed.

Defendant appeals from the judgment of conviction after a jury found him guilty of making a criminal threat (Pen. Code, 422; count 1), brandishing a deadly weapon ( 417, subd. (a)(1); count 4), and resisting arrest. ( 148, subd. (a)(1); count 5.) The jury also found true a prior prison term allegation. ( 667.5, subd. (b).) The trial court struck the prior prison term enhancement and imposed a prison term of two years on count one, 60 days on count four and 30 days on count five, both counts to run consecutively to count one and to each other.
On appeal, defendant raises a Miranda claim contending that introduction of his in-custody statement to a law enforcement officer was prejudicial error. He also contends imposition of consecutive sentences on counts four and five violate section 654s proscription against multiple punishment.
Court find no error and affirm the judgment.

This is an appeal from a judgment entered on a jury verdict for claims arising from damage to approximately 1,000 acres of grapes and vines. Defendant and appellant Britz Fertilizers, Inc. (hereafter defendant), contends it should have been allowed to call as a witness an expert who had previously been designated by plaintiff and respondent Ahmad Skouti (hereafter plaintiff) but who had withdrawn from the case because of asserted medical problems. Defendant also contends plaintiff was allowed to present expert evidence of the extent of permanent damage to the vines when there was no foundation for such testimony. Finally, defendant contends plaintiff presented insufficient evidence to support the award of damages for loss of economic opportunity. Court reject defendants claims and affirm the judgment.

Appellant, M.D., appeals from the order of the juvenile court terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. Appellant contends the court erred in failing to acknowledge her argument that termination would be detrimental to her children based on the beneficial relationship exception ( 366.26, subd. (c)(1)(A)). Court disagree and affirm.

At a contested jurisdictional hearing held on September 28, 2006, the juvenile court found true the allegations that 12-year-old J.S. committed battery (Pen. Code, 242), made a harassing telephone call ( 653m, subd. (a)), attempted by means of threats to deter an officer from performing her duties and resisted the officer by force ( 69), and resisted, delayed or obstructed an officer ( 148, subd. (a)). The court placed J.S. on probation.
On appeal, J.S. contends there was insufficient evidence to support the juvenile courts findings that she violated sections 69 and 148. Court affirm the courts findings.

Minor appellant D.S. contends the juvenile court abused its discretion by committing him to the Department of Corrections and Rehabilitation, Juvenile Justice (Juvenile Justice)[1]after he admitted committing residential burglary, committing grand theft from a person, knowing a co-offender in both offenses was armed with a firearm, and violating probation. (Pen. Code, 460, subd. (a), 487, subd. (c), 12022, subd. (d).) Court conclude the juvenile court acted within its discretion and therefore affirm the disposition.

A modification decision.

A modifiation decision.

A jury convicted defendant Sean Sarik of aggravated assault (Pen.Code, 245, subd. (a)(1)) and found true enhancement allegations that he personally inflicted great bodily injury (GBI) on someone other than an accomplice ( 12022.7, subd. (a)) and committed the offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). Defendant also admitted an allegation under the Three Strikes law that he had a prior conviction for a serious felony. ( 667, subds.(b)-(i)). The court imposed a 12-year sentence, comprising a two-year middle term for the assault, doubled under the Three Strikes law; a consecutive five-year term for the gang enhancement and a consecutive three-year term for the GBI enhancement. On appeal from the judgment, defendant challenged the propriety of CALJIC No. 17.20, an instruction given by the court that tells the jury how to determine whether defendant personally inflicted great bodily injury. He claimed that the instruction is legally flawed because it allows imposition of an enhancement without a finding that he personally inflicted great bodily injury. This court agreed with defendant and reversed the judgment, noting, however, that the propriety of CALJIC No. 17.20 was then currently pending before the California Supreme Court in People v. Modiri (2003) 112 Cal.App.4th 123, review granted December 23, 2003, S120238. The Supreme Court granted review in this case. Thereafter, it filed People v. Modiri (2006) 39 Cal.4th 481 (Modiri) and transferred the case back to this court for reconsideration in light of Modiri.
Having done so, Court now affirm the judgment.

This matter comes before us for a third time for reconsideration, in light of Cunningham v. California (2007) 549 U.S. , [127 S.Ct. 856, 868] (Cunningham), of the propriety of the trial courts imposition of the upper term. Court direct a modification of the judgment and affirm the judgment as modified.

This matter comes before us for reconsideration, in light of Cunningham v. California (2007) 549 U.S., [127 S.Ct. 856, 868] (Cunningham), of the propriety of the trial courts imposition of the upper term. Court reverse the judgment as to penalty only with directions to conduct a new sentencing hearing or to modify the judgment.

A jury convicted defendant Cleto Siqueiros of two counts of lewd conduct with a child, one count of aggravated sexual assault of a child (rape), and two counts of forcible lewd acts upon a child. (Pen. Code, 288, subds. (a) & (b)(1), 261, subd. (a)(2), 269, subd. (a)(1).) The court imposed a total sentence of 29 years to life. It consisted of an indeterminate 15-years-to-life term for aggravated sexual assault and a consecutive determinate term of 14 years, comprising a six-year principal term for one count of lewd conduct; a subordinate consecutive, full mid-term of six years for a second count of lewd conduct; and a consecutive one-third the mid-term of two years for the third count of lewd conduct.
On appeal from the judgment, defendant contended that the court erred in giving CALJIC No. 10.64, the standard instruction on Child Sexual Abuse Accommodation Syndrome (CSAAS). He argued that it created an unconstitutional presumption, which in turn lowered the prosecutions burden of proof. He claimed his sentence violated the constitutional proscriptions against cruel and unusual punishment. And he claimed the imposition of full and/or consecutive terms for two counts of lewd conduct violated his constitutional right to a jury trial.Having reconsidered defendants claim in light of Cunningham, Court again affirm the judgment.

A jury convicted Alfredo Vierra Abanico and Vincent Lopez of five counts of kidnapping for purposes of robbery, five counts of kidnapping to facilitate a carjacking, and street terrorism. It further found that they personally used firearms and committed the crimes for the benefit of a criminal street gang. After a court trial, the court found that both defendants had served prior prison terms and that Lopez had a prior strike conviction. (Pen. Code, 209, subd. (b)(1), 209.5, subd. (a), 186.22, subds. (a) & (b)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b), 667.5, subd. (b), & 1170.12, subd. (c)(1).) The court sentenced Abanico to two consecutive terms of 15 years to life for two counts of kidnapping for robbery as enhanced by the gang findings plus two consecutive 10-year firearm enhancements. The court imposed identical concurrent terms for the remaining three counts of kidnapping for robbery and five counts of kidnapping to facilitate carjacking and a two-year term for street terrorism plus a one-year term for the prison enhancement, but it stayed the terms on the convictions for kidnapping/ carjacking and street terrorism under section 654. Court conclude there is insufficient evidence to support the gang enhancements, reverse the judgment and remand the case for resentencing.

A jury found defendant guilty of first degree burglary. (Pen. Code, 459.) Four prior conviction allegations were submitted to the trial court and found true. Defendants motion, based on section 1385, subdivision (a), and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to dismiss the prior convictions was denied, and the court sentenced him to 23 years in state prison. Defendant appeals the denial of his motion as an abuse of discretion. Court affirm the judgment.