CA Unpub Decisions

Mother appeals from the juvenile court's order terminating her parental rights to M. (born in 1998), J. (born in 2000), A. (born in 2003), and T. (born in 2004), pursuant to Welfare and Institutions Code section 366.26. Frank S. (Father) also appeals from the same order terminating his parental rights to J. On appeal, both parents challenge the finding that M. and J. are adoptable. They further contend the notice requirements for complying with the Indian Child Welfare Act (ICWA) were not satisfied as to J.

Defendant was charged with the murder of Juan Jorge Solano in violation of Penal Code section 187(a), and the use of a firearm during the commission of the offense. As the jury trial was beginning, defendant entered a guilty plea to the second degree murder in exchange for an agreed-upon sentence of 15 years to life. The court sentenced defendant in accordance with the plea agreement.
Defendant subsequently appealed, and his application for a certificate of probable cause was granted.

Defendant was convicted of voluntary manslaughter and attempted voluntary manslaughter for killing Manuel Lopez and injuring Jose Luna when he drove his truck into them after a party. On appeal, he contends (1) the trial court erred by failing to respond properly to the jury's questions, (2) the trial court erred by instructing the jury with both alternative paragraphs of CALJIC No. 5.16, and (3) CALJIC No. 5.15 was misleading and lightened the prosecution's burden. Court affirm.

This is an appeal by an incarcerated, pro se litigant from the trial court's dismissal of his complaint after sustaining a defense demurrer. The argument made by plaintiff is that the trial court erred "when it denied [him] the right to be heard at his hearing" on the demurrer. Court affirm.

Following a contested jurisdictional hearing, the juvenile court sustained an allegation against Jonathan C. (appellant) that he committed battery (Pen. Code, S 242) and that the battery was committed with the intent to assist a criminal street gang (S 186.22, subd. (d)). The court adjudged appellant a ward of the court, declared the offense a felony under section 186.22, subdivision (d), and placed him on probation, ordering that he serve five days in juvenile hall and 49 days on house arrest.
Appellant contends there was insufficient evidence to support the section 186.22, subdivision (d) alternative sentencing provision. Specifically, he contends that there is insufficient evidence that the primary activity of the gang was the commission of the violent crimes enumerated in section 186.22, subdivision (e), and insufficient evidence that he committed the battery with the specific intent that it promote the gang. Court find no merit to appellant's claims and affirm.

Appellant appeals from the juvenile court's order reducing her visitation from weekly to twice a month. Finding no abuse of discretion, court affirm.

The City of Fullerton (the City) appeals from a judgment against it in this inverse condemnation action brought by Matthew and Alison Van Steenhuyse after their residential property, located adjacent to and at the bottom of a natural watercourse, suffered significant flooding during a rainstorm. The City contends the trial court failed to apply the pertinent legal principles set forth in Locklin v. City of Lafayette (1994) 7 Cal.4th 327 (Locklin), pertaining to public entity liability for discharge of runoff surface water into a natural watercourse, and when properly applied, those rules preclude a finding of inverse condemnation liability in this case. Court agree and reverse the judgment with directions to enter judgment in favor of the City.

Manuel A. appeals from a judgment terminating his parental rights and freeing his children for adoption. He contends there is insufficient evidence his children are adoptable, but court disagree and affirm the judgment.

On the evening of June 27, 2002, defendant Dennis Jimenez was at the home of Jose Ramos engaged in a brief conversation, later described as heated or hostile by family observers. A few hours later, Ramos was shot and killed outside his house. Defendant was eventually charged with murder, although there were no eyewitnesses and no direct evidence. Following his conviction, defendant claims prejudicial trial court errors, including (1) error in jury selection, (2) error in admission of testimony concerning cell phone records, and (3) several evidentiary errors. Court find no errors and affirm the judgment.

Defendant Tai Anh Dang, a lawful permanent resident of the United States, appeals from an August 24, 2005 order denying his motion to vacate his December 1996 plea of no contest to committing a lewd act upon a child under the age of 14 (Pen. Code, S 288, subd. (a)). Defendant contends, as he did below, that he received ineffective assistance of counsel because his attorney misadvised him of the immigration consequences of his plea and failed to attempt to obtain an alternative plea agreement that would have avoided the actual consequences. Defendant also contends that he may appeal from the denial of his post judgment motion to vacate his plea which raised his ineffective assistance of counsel claim. Court disagree with this latter claim, and therefore dismiss the appeal.

Defendant was convicted by jury trial of second degree robbery (Pen. Code, S 211, 212.5, subd. (c)) and carrying a concealed dirk or dagger on his person (Pen. Code, S 12020, subd. (a)(4)), and the jury found true the allegation that he had personally used a deadly or dangerous weapon in the commission of the robbery (Pen. Code, S 12022, subd. (b)(1)). The court found true allegations that defendant had suffered four prior serious felony convictions (Pen. Code, SS 667, subds. (a), (b) (i), 1170.12) and five times served prison terms for felony convictions (Pen. Code, S 667.5, subd. (b)). Defendant was committed to state prison to serve an indeterminate term of 25 years to life consecutive to a determinate term of 11 years. On appeal, defendant claims that the trial court erred in giving a prejudicially erroneous instruction on the "concealed" element of the carrying a concealed dirk or dagger count. He also contends that the trial court abused its discretion in refusing to strike the prior conviction findings. Finally, defendant maintains that his sentence is unconstitutionally cruel and/or unusual punishment. Court reject his contentions and affirm the judgment.

Petitioners Raul and Marianne Mora (collectively, Moras) lost their Hollister home through foreclosure and thereafter brought an action challenging the legality of the sale. This petition for writ of mandate arises out of an order sustaining without leave to amend the demurrers of two defendants to some (but not all) of the causes of action of Moras' second amended complaint (Complaint). Moras filed a nonstatutory petition for writ of mandamus or supersedeas challenging the order; they also sought a stay to prevent any attempts to remove them from their home via unlawful detainer. The principal argument in the petition is that the court erred by making a conclusive determination of certain "facts" supposedly contained in documents of which it took judicial notice. Those "facts" contradicted key allegations of the Complaint and resulted in the court sustaining the demurrers. Real parties in interest the lender, Ocwen Financial Corporation (Ocwen), and the trustee, Cal Western Reconveyance Corporation (Cal Western) have opposed the petition.
After consideration of the entire matter, including supplemental opposition papers filed by Ocwen, court conclude that the lower court's ruling was erroneous. Accordingly, court grant Moras' petition for writ of mandate.

Following his conviction by jury verdict of attempted murder (Pen. Code, SS 187/664), appellant Michael Glenn Braxton made a timely oral motion for new trial on grounds of jury misconduct, which the trial court refused to hear. (People v. Braxton (2004) 34 Cal.4th 798, 814.) In his first appeal (A096083) he contended the refusal of his motion was error. He also asserted various evidentiary and instructional errors, which he had not claimed in his motion for new trial.
Court concluded the court's refusal to hear the motion for new trial was error, and that, under the peculiar facts of the refusal, appellant was entitled to a new trial. Court addressed the evidentiary issues, as they were likely to recur on a retrial. Court declined to address the claimed instructional errors as premature, because the evidence presented at retrial, as yet uncertain, would govern the appropriate instructions.
The Supreme Court granted the People's petition for review to address the issues related to the motion for new trial. (People v. Braxton, supra, 34 Cal.4th at p. 805.) It concluded the trial court erred in not hearing appellant's motion, but it reversed our judgment and directed us to remand the matter to the trial court for a hearing on appellant's motion for new trial on the ground of jury misconduct. (Id. at pp. 814, 820.) Pursuant to California Rules of Court, then rule 26(b)(2), now rule 8.272(b)(2), we issued a remittitur and sent the trial court our remittitur, a copy of the Supreme Court remittitur, and a file stamped copy of the Supreme Court opinion.
The trial court has now heard and denied appellant's motion for new trial, and he appeals the order of denial (A110446).
Subsequent to his appeal in A110446, appellant asked us to recall the remittitur in our original opinion in order to address the evidentiary and instructional claims of error, the resolution of which was not necessary for our conclusion in that opinion. He also asked that we consolidate the two appeals. Court granted his request.

Defendant Donald Jones fired a rifle from a van at a group of four teenagers. Jones's brother, codefendant Larry Dean Ridge, Jr., owned the van and was a passenger in the van along with two other men. A rifle shot killed one of the teenagers, and return fire from the street killed a van passenger.
A jury convicted Jones of two counts of first degree murder for the deaths of the teenager and van passenger, and three counts of attempted murder of the surviving teenagers. (Pen. Code, SS 187, subd. (a), 189, 664 [all further section reference are to this code].) For both murder convictions, the jury found that Jones personally discharged a firearm and caused the death of a person other than an accomplice. (§ 12022.53, subd. (d).) The court sentenced Jones to three consecutive life sentences in prison, two without possibility of parole, and multiple firearm use enhancements that include life terms. The jury convicted codefendant Ridge of two counts of second degree murder and three counts of attempted murder. (SS 187, subd. (a), 189, 664.) Ridge is serving two consecutive terms of 20 years to life, with a one year firearm enhancement for the murders, plus an aggregate determinate term of 11 years, 8 months for the attempted murders. Both defendants appeal.
Jones presented an alibi defense at trial and, on appeal, challenges admission of an eyewitness identification and exclusion of expert testimony about that identification. Jones also maintains that his murder conviction for the death of his van companion was improperly fixed in the first degree, and that the firearm enhancement as to the van passenger should be stricken because the passenger was an accomplice. Jones claims that the enhancement finding is otherwise flawed as the product of instructional error. Jones, along with Ridge, argue that the jury, not the trial court, should have made any findings used to impose consecutive sentences.

Ridge separately argues that his convictions for murder and attempted murder must be reversed because there is insufficient evidence that he aided and abetted the crimes. Ridge denies knowledge that Jones would shoot people and denies an intention to aid the shooting. Ridge also argues that the case was tried on the theory that he was either guilty of first degree murder or no murder, and the court erred in instructing the jury on second degree murder. Ridge maintains that he would have been acquitted of murder in the absence of the instructional error, and thus reversal is required.

Court affirm the judgments with a single modification. The 25 years to life firearm use enhancement for Jones's murder of his van companion (S 12022.53, subd. (d)) must be modified to a 20 year enhancement (S 12022.53, subd. (c)), due to instructional error.