CA Unpub Decisions

A jury found defendant guilty of repeatedly molesting his daughter from the time she was four and of raping his girlfriend and ordering her to forcibly orally copulate him when she walked in on the last attempted molest. The court sentenced him to 338 years to life in state prison.
On appeal, defendant contends the trial court erred in: (1) admitting evidence of his purported prior acts of domestic violence; (2) instructing the jury on how to use the prior acts of domestic violence; (3) admitting evidence of child sexual abuse accommodation syndrome; (4) denying his request for appointment of counsel to assist him in filing a motion for new trial; and (5) imposing multiple five-year enhancements to his nine indeterminate life terms based on a single prior serious felony conviction. Finding no prejudicial error, Court affirm the judgment.

Defendant appeals from the judgment entered following a court trial that resulted in his conviction in case No. 04F7742 for possession of methamphetamine (Health & Saf. Code, S 11377, subd. (a)) and in case No. 05F4196 for failing to appear (Pen. Code, S 1320, subd. (b)). The trial court also found true the allegation contained in both cases that defendant had suffered a 1975 "strike" conviction for robbery (Pen. Code, S 211) and sentenced defendant to a prison term of seven years four months.
Defendant contends, and the People concede, that his sentence, enhanced based upon the prior conviction, is invalid. Court agree and remand for further proceedings.

In May 2005, an original petition was filed alleging that minor was within the provisions of Welfare and Institutions Code section 602 in that he committed misdemeanor battery upon a school employee. (Pen. Code, S 243.6.) In October 2005, a subsequent petition was filed alleging that he committed misdemeanor battery upon 16 year old minor. (Pen. Code, S 242.) In December 2005, the minor admitted the allegation of the subsequent petition, and the original petition was dismissed in the interest of justice. The minor was placed on probation for nine months. He was ordered to pay restitution to minor in an amount to be determined later.
On appeal, the minor contends the award of restitution for lost wages was an abuse of discretion because the parents were not subpoenaed to court and did not testify. Court affirm the judgment.

On his original and supplemental petition for writ of habeas corpus Defendant contends that his trial counsel rendered constitutionally ineffective assistance of counsel by (1) failing to request accident and self-defense instructions to be given specifically as to the robbery count and its enhancements; and (2) by failing to request an instruction on theft as a lesser included offense to the robbery count, and by acquiescing in the court's statement that neither counsel desired such an instruction as there was no evidence to support such an offense. In his second supplemental petition for writ of habeas corpus he asserts that the court's imposition of the 10-year enhancement for his personal use of a firearm in committing first degree robbery is disproportionate and constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. The petitions are denied.

In this case we reverse an order changing custody of the parties' eight year old son. The undisputed record shows minor is extremely apprehensive about being in respondent's presence and exhibits angry, aggressive and sometimes dangerous behavior when compelled to attend counseling sessions with her. Moreover, no expert has offered any opinion which would support the conclusion that as opposed to joint therapy with respondent, the immediate transfer of custody to respondent could be accomplished without substantial risk to minor's mental and physical health. Given this record the trial court could not conclude the immediate transfer of custody was in minor's best interest.

Petitioner filed this petition for writ of mandate to challenge that order, asserting that (1) he met his low burden of proof necessary to require an in camera review of any relevant documents; (2) the court must assume his allegations true for the purpose of the motion; (3) he did not need corroborating evidence to substantiate his allegations; and (4) the declaration filed in support of the motion was internally consistent. Court grant the petition, with directions.

On appeal Defendant asserts (1) the court's expression of agreement with the prosecution's handling of the case, together with its questioning of a witness, amounted to judicial misconduct that violated his federal due process rights; (2) the admission of expert testimony on the "link" between rental cars and drugs constituted reversible error and violated his federal due process rights; and (3) the court's failure to declare a mistrial after the prosecutor identified Defendant's counsel as a public defender violated his federal constitutional right to counsel and due process. Court affirm.

The parents of minors seek extraordinary writ relief (Welf. & Inst. Code, S 366.26,subd. (l); Cal. Rules of Court, rule 8.452); they challenge the juvenile court order that terminated reunification services after 18 months and set a section 366.26 hearing. Parents contend there was insufficient evidence that returning the children to their custody would create a substantial risk of detriment to the children. Additionally, contends there was insufficient evidence that she did not make substantial progress with her case plan. They also contends the court erred when it did not relieve her trial counsel after counsel declared an irreparable breakdown in the attorney client relationship.
Court issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties waived oral argument. Court review the petitions on their merits and deny them.

A jury found defendant and guilty of rape (Pen. Code, S 261, subd. (a)(2)) and forcible sodomy (S 286, subd. (c)(2)). The court sentenced defendant to state prison for six years. On appeal, defendant contends: 1) the trial court erred in admitting the opinion of an expert witness who testified that the victim's injuries were consistent with a sexual assault; and 2) the court erred in admitting the expert witness's medical report. Court find no error and affirm.

A jury found defendant not guilty of possession of cocaine base for sale (Health & Saf. Code, S 11351.5) but guilty of the lesser included offense of simple possession of cocaine base S 11350, subd. (a)), and being under the influence of a controlled substance ( s 11550). Defendant filed a motion for sentencing pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). (Pen. Code, S 1210 et seq.) Although the jury did not find that the cocaine base was for sale, the trial court found that the cocaine base was for sale, and not for personal use. On that ground, the court ruled that defendant was ineligible for probation and treatment under Proposition 36, and instead sentenced her to four years in state prison.
On appeal, defendant contends that the trial court erred in denying her Proposition 36 probation, since she was eligible under the plain language of Penal Code section 1210.1, subdivision (a). The judgment is affirmed.

A jury found defendant guilty of attempted premeditated murder (Pen. Code, SS 664/187, subd. (a), count 1), two counts of assault with a firearm (S 245, subd. (b), counts 2 & 4), and one count of attempted murder (SS 664/187, subd. (a), count 3). The jury also found true various enhancement allegations. The trial court sentenced defendant to a determinate sentence of 37 years in state prison and an indeterminate sentence of life with the possibility of parole, plus a consecutive term of 25 years to life.
On appeal, defendant contends that the minute order and abstract of judgment erroneously indicate that the court imposed a determinate sentence of 62 years. Court agree and remand the matter to the trial court to make the appropriate corrections.

As part of a plea agreement defendant received a Proposition 36 (Prop. 36) drug treatment program in lieu of going to state prison. When he failed to complete the drug treatment program, the trial court sentenced him to four years in state prison. On appeal, defendant argues that (1) the trial court abused its discretion when it imposed a prison term without obtaining information in order to exercise its discretion; (2) the trial court violated his due process right by failing to hold a drug program termination hearing; and (3) he did not waive his due process claim. We conclude that defendant waived his right to a drug program termination hearing when he accepted the renegotiated plea bargain and affirm. Defendant requests that we take judicial notice under Evidence Code section 452 that defendant's trial counsel has retired. Defense counsel's retirement is not relevant to any issue in this appeal. Therefore, defendant"s request for judicial notice is denied.

Defendant once again appeals from a trial court order granting plaintiff attorney's fees on appeal. Jaleh filed a motion for attorney's fees under Code of Civil Procedure section 527.6, subdivision (i), upon remittitur from this court's award in his favor in the matter of Jaleh v. Alford (June 10, 2005, E036160) (nonpub. opn.), wherein Court affirmed the trial court's award of attorney's fees upon the remittitur from a prior award on appeal (Jaleh v. Alford (Sept. 9, 2003, E032876) (nonpub. opn.)). Court take judicial notice of these prior opinions in order to provide context for this appeal. As he did in appeal E036160, Alford claims that the trial court erred in granting Jaleh' motion for attorney's fees as costs on appeal. He argues that the trial court (1) failed to determine Jaleh's entitlement to an award of attorney's fees on appeal and failed to state the legal ground upon which its award was made, (2) failed to exercise its discretion in a manner consistent with satisfying legislative intent because it did not require proof from Jaleh's attorney that he took on the appeal only because of the existence of the fee shifting statute, (3) allowed Jaleh's attorney to earn a fee from Jaleh and be paid by Alford thereby "double dipping,"and (4) wrongfully awarded fees to an attorney whose services were in violation of the rules of professional conduct. We find these arguments unpersuasive and affirm the order.

Based on two separate, gang-related incidents in March and April 2001, defendant was charged in a consolidated, amended information with the attempted robbery (count 1); assaulting with a deadly weapon (S 245, subd. (a)(1), count 2); the willful, deliberate, and premeditated attempted murder of Alfonso Stollwarth (SS 187, subd. (a), 664, count 3); shooting at an inhabited dwelling (S 246, count 4); and two counts of actively participating in a criminal street gang (S 186.22, subd. (a), counts 5 & 6). It was further alleged that defendant had one prior strike conviction (S 667, subds. (c) & (e)(1)); and committed counts 1 through 4 for the benefit of a criminal street gang (S 186.22, subd. (b)). Firearm enhancements, within the meaning of section 12022.53, subdivisions (c) (personal discharge), (d) (personal discharge causing great bodily injury), and (e) (vicarious gang liability) were alleged in counts 3 and 4. Defendant admitted the prior strike conviction, and a jury found him guilty as charged and found all enhancement allegations true. Defendant was sentenced to an aggregate term of 110 years to life, plus six years four months in prison. Defendant appeals. He contends the information did not put him on notice he was being charged with the premeditation enhancement on the attempted murder charge in count 3; insufficient evidence supports his attempted robbery conviction in count 1; the jury was erroneously instructed on the malice element of attempted murder in count 3; and the trial court erred in failing to instruct sua sponte on the lesser included offense of simple assault in count 2 and on battery as a lesser included offense in count 1. Court agree that the trial court erroneously failed to instruct on the lesser included offense of simple assault in count 2, and that the error was prejudicial. Court therefore reduce defendant's conviction in count 2 to simple assault, and remand the matter for resentencing. Court find defendant's other aforementioned claims without merit. Defendant also raises multiple claims of pleading, instructional, and sentencing error regarding the firearm and gang enhancements in counts 3 and 4. We agree with three of defendant's claims of sentencing error. Thus, Court remand the matter for resentencing in light of these errors as well as the reduction of defendant's conviction to simple assault in count 2. In all other respects, court affirm the judgment.