CA Unpub Decisions

Defendant challenges the sentence for his assault with a deadly weapon conviction because the trial court imposed the upper term based on facts not found by the jury. Following precedent set by our California Supreme Court, Court affirm the aggravated sentence because it is based on defendants recidivism.

In November 2003, plaintiff filed suit against defendants, seeking $50,000 in damages for the tortious conversion of personal property. On March 21, 2006, after plaintiff delivered his opening statement in pro. per., the trial court granted defendants motion for judgment of nonsuit pursuant to Code of Civil Procedure section 581c, subdivision (a) and ordered plaintiff to pay defendants court costs in the amount of $644.60.
Plaintiff raises three contentions on appeal: (1) the trial court committed reversible error by considering a substitution of counsel form as a motion to be relieved as counsel without complying with the mandatory requirements of California Rules of Court, rule 3.1362[2]; (2) the trial court abused its discretion in failing to protect plaintiff from the unethical and improper abandonment of his counsel; and (3) the trial court committed reversible error by denying plaintiffs request for a continuance when the denial had the practical effect of denying plaintiff a fair trial.

In this juvenile dependency appeal, father challenges an order summarily denying his petition, under Welfare and Institutions Code section 388, to modify a prior court order establishing a legal guardianship over his children, Jazmine (born September 1995), Jennifer (born February 1997), and Maxwell (born September 1998). He also argues reversal of the guardianship order is required for noncompliance with the Indian Child Welfare Act (ICWA). Upon review, we find no abuse by the juvenile court in denying fathers petition without affording him a hearing. As for fathers ICWA claim, we agree that the San Bernardino Department of Childrens Services (DCS) failed to comply with the ICWAs notice requirements. However, because the time to appeal has passed and we therefore lack jurisdiction to review the guardianship order, Court are not in a position to provide any effectual relief, although father may choose to assert his position in the juvenile court.

Pursuant to a plea agreement, defendant pleaded guilty to one count of assault with a deadly weapon, to wit, a knife, in violation of Penal Code section 245, subdivision (a)(1). In return, defendant was granted three years of formal probation on various terms and conditions, including serving 180 days in county jail. Defendants sole contention on appeal is that the probation condition requiring him to keep the probation officer informed of whether he owns any pets is unreasonable. Court reject this contention and affirm the judgment.

Annette C., defendant and appellant (hereafter mother), appeals from the trial courts order under Welfare and Institutions Code section 366.26 terminating her parental rights to the youngest three of her four children. Mother contends that the beneficial relationship and sibling relationship exceptions to parental rights termination apply in this case and therefore the trial court erred in terminating her parental rights. In addition, mother contends that the trial court abused its discretion when it denied the request of minors counsel for a continuance in order to determine whether a conflict of interest existed that would require counsel to withdraw from representation. Court conclude mothers claims are meritless. Therefore, Court affirm the order terminating her parental rights.

On March 22, 2005, defendant Robert Arriaga pled no contest in case No. BF109713A to assault with a firearm (Pen. Code, 245, subd. (a)(2))[1]and attempting to dissuade the victim from reporting the crime ( 136.1, subd. (b)(2)) in exchange for a maximum sentence of six years. The same day, Arriaga pled no contest in case No. BF109714B to voluntary manslaughter ( 192, subd. (a)) in exchange for a maximum sentence of 11 years. Both cases involved separate criminal acts taking place on different occasions. In conclusion, Arriaga is precluded from challenging his sentence on appeal because he failed to obtain a certificate of probable cause. Alternatively, the sentence imposed is within the maximum specified under the plea agreement and was stipulated to by Arriaga. The sentence does not violate Blakely or Cunningham.
Court direct the trial court to modify the abstract of judgment to impose a total of three $20 fees (for a total of $60) under section 1465.8 upon Arriaga. As so modified, the judgment is affirmed.

On September 23, 2004, a petition was filed pursuant to Welfare and Institutions Code section 602 in Kings County alleging that appellant, Julian C., Jr., had committed a lewd and lascivious act on a child under age 14 (Pen. Code, 288, subd. (a), count 1) and sodomy (Pen. Code, 286, subd. (a), count 2). On September 29, 2004, Julian admitted count 1. Count 2 was subsequently dismissed.
On appeal, Julian contends the juvenile court abused its discretion in committing him to Juvenile Justice. Julian contends the juvenile court abused its discretion in committing him to Juvenile Justice. Court disagree and affirm the judgment of the juvenile court.

Appellant and codefendant were convicted of the first degree murder of Michael McGhee, and attempted murder of his brother, Anthony Beard, with enhancements for committing the offenses for the benefit of a criminal street gang and personally discharging a firearm causing great bodily injury or death. On appeal, Senegal challenges the courts imposition of consecutive indeterminate terms for first degree murder and the firearm enhancement. Court affirm.

This is an appeal from a judgment after a trial to the court sitting without a jury. Appellants Norman L. Fletcher and Ester Fletcher contend the court erred in granting judgment for $55,000 against them and in favor of respondent Laurence Hanner on respondents complaint for breach of contract and other causes of action. Appellants contend the court made erroneous evidentiary rulings, applied wrong principles of law, and reached conclusions that were not supported by substantial evidence. Court affirm the judgment.

Appellant and codefendant convicted of the first degree murder of Michael McGhee, and attempted murder of his brother, Anthony Beard, with enhancements for committing the offenses for the benefit of a criminal street gang and personally discharging a firearm causing great bodily injury or death. On appeal, Williams challenges the sufficiency of the evidence for his convictions and the gang enhancements, and also raises various constitutional challenges to the gang enhancements. Court affirm.

On November 23, 2005, at approximately 3:30 a.m., Maria Martinez got up to use the restroom and heard dogs barking outside. After checking on her sisters children who were sleeping in another room, Martinez saw appellant, Artis Malik Bey, picking up a television set from a dresser. As Martinez dialed 9-1-1, Bey walked toward her, tripped and fell to the ground in the kitchen. Martinezs husband, Baudelio Villagrana, was awakened by the sound of Martinez crying, entered the kitchen to investigate and found Bey sitting on the floor. Bey then got up, walked past Villagrana and lay down on a couch. Bey was arrested after sheriff deputies arrived at the house and found him sleeping on the couch. The officers did not attempt to interview Bey because he was too inebriated. Following independent review of the record Court find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

On November 10, 2003, pursuant to a search warrant, police searched the home of appellant, Shawn Jason Morris, and found approximately 9.78 grams of methamphetamine, a gram scale, and a pay-owe ledger. Morris admitted that these items belonged to him.
Following independent review of the record Court find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

The trial court entered judgment awarding plaintiff, a law firm, nearly $71,000 in unpaid attorney fees, expenses, and prejudgment interest against defendants George Bejvl and Teresa Clark, its former clients. The judgment was based on the courts prior confirmation of an arbitration award obtained under the California Arbitration Act. (Code Civ. Proc., 1280 et seq.; CAA) Defendants appeal, contending they were entitled to pursue nonbinding arbitration of the dispute under the Mandatory Fee Arbitration Act (Bus. & Prof. Code, 6200 et seq.; MFAA), and both the arbitration service that administered the arbitration and the individual arbitrator should have been disqualified because of conflicts of interest. Since defendants waived their rights under the MFAA and have failed to establish any conflict of interest, Court affirm the judgment.

In propria persona plaintiff George Guang Yang was found guilty and ordered to pay $161 on a traffic citation for failing to yield to a pedestrian (Veh. Code, 21950, subd. (a)), and he lost his appeal in the appellate division of the Santa Clara County Superior Court. Thereafter, still in propria persona, he brought a $36 million civil lawsuit against defendant City of San Jose (City) for issuing a wrongful citation and for government corruption. The trial court granted Citys motion for judgment on the pleadings and Yangs complaint was dismissed without leave to amend. In propria persona in this court, Yang appeals the judgment on the pleadings, other orders issued by the trial court, the judgment of the traffic commissioner, and the order of the appellate division affirming the lower court judgment. The judgment is affirmed.