CA Unpub Decisions

Petitioner, the prospective adoptive mother of minor Ai.M., challenges the trial court’s decision to uphold the decision of real party Riverside County Department of Public Social Services (Department) to remove Ai.M. from her care and seek an alternative permanent home, which would also accommodate Ai.M.’s older sister, Al.M. Although this is an unfortunate case, we find no abuse of discretion and deny the petition.

The People appeal from an order of the trial court dismissing a criminal complaint for violation of defendant German Valtierra Rodriguez’s right to a speedy trial. When the trial court dismisses a case based on a violation of defendant’s right to a speedy trial, we review for an abuse of discretion. (Serna v. Superior Court (1985) 40 Cal.3d 239, 251.)
The People assert that the trial court erred in finding actual prejudice and the court abused its discretion in dismissing the complaint. We conclude defendant demonstrated actual prejudice and the trial court did not abuse its discretion. We affirm the judgment.

This is an appeal from a post judgment order in family law proceedings.[1] In the course of child support modification hearings, the commissioner denied an order to show cause without prejudice on grounds that Derek Worden failed to comply with court orders. Worden appeals, arguing that he was not properly served with the orders.

Arguing that when it imposed restitution and probation restitution fines of $240, the trial court violated the constitutional prohibition against ex post facto increases in criminal penalties, defendant Paul Minnis seeks reduction of each of the fines to $200. The People agree that the fines in question should be reduced. We will affirm the trial court.

A jury convicted defendant, Emanuel McFadden, of inflicting corporal injury on a cohabitant (Pen. Code, § section 273.5, subd. (a)).[1] In bifurcated proceedings, the trial court found true allegations that defendant had suffered two strike priors (§ 667, subds. (b)-(i)) and six prior convictions for which he served prison terms (§ 667.5, subd. (b)). He was sentenced to prison for 25 years to life plus four years and appeals, claiming the trial court should have granted his requests for substitution of counsel, evidence of prior acts of domestic violence should have been excluded and his request to dismiss one or both of his strike priors should have been granted. We reject his contentions and affirm, while directing the trial court to correct an error in the abstract of judgment.

A jury found defendant and appellant, Jesse Torres, guilty as charged of two counts of attempted murder and two counts of assault with a deadly weapon, a knife, for stabbing two brothers, Marcos Arroyo and Manuel Delgado, at a neighborhood party. (Pen. Code, §§ 664, 187, subd. (a), 245, subd. (a)(1).)[1] The jury also found the attempted murders were premeditated and found great bodily injury and gang enhancements true on all four counts. (§§ 664, subd. (a), 12022.7, subd. (a), 186.22, subd. (b)(1).) Defendant was sentenced to 10 years plus 30 years to life in prison.[2]
On this appeal, defendant claims insufficient evidence supports: (1) the intent to kill element of his attempted murder convictions; (2) the premeditation findings; and (3) the gang enhancement findings. He also claims the court abused its discretion and violated his due process right to a fair trial in refusing to bifurcate the gang allegations and erroneously denied his motion for a new trial based on ineffective assistance. We find these claims without merit and affirm the judgment in all respects.

Defendant Andrew Rudy Salas, a Hemet Trece gang member, and another man stood outside a residence yelling for a man named “Psycho.” Jane Doe[1] lived at the residence and advised Salas and the other man to leave. One of them told her to go inside her residence or she could get killed. A short time later, Doe heard a gunshot outside her window, and two Hispanic males were seen in the street. A neighbor identified the shooters as Salas and defendant Ricardo Santiago. Defendants were later found together several blocks from the residence. Santiago was in possession of a knife, but no gun was found.
Defendants were tried together. Salas was convicted of making criminal threats against Doe (the jury was hung on the charge against Santiago), and Santiago was convicted of possession of a concealed dirk or dagger. They were both acquitted of or the jury was hung on all of the charges stemming from the shooting. They both were convicted of the substantive crime of active participation in a criminal street gang and gang enhancements for their individual crimes.

Michael C. seeks writ review of orders terminating his reunification services regarding his sons, David H. and E.R., and referring the matter to a section 366.26 hearing. Michael contends the doctrine of collateral estoppel precludes the Imperial County Department of Social Services (the Department) from relying as the factual basis for subsequent petitions on allegations that he subjected E.R. to sexual abuse. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2010, seven-year-old David and six-year-old E.R. were taken into protective custody. The Department petitioned on behalf of the two children under section 300, subdivision (b), alleging they were at substantial risk because of Michael's use of methamphetamine. The petitions also alleged law enforcement officers had seized journals written by Michael in which he described how he had forced and was planning to force E.R. to engage in sex acts with a male prostitute named Hector and with other people. The petitions further alleged pornographic movies and magazines were in the home within the children's reach; Michael had been arrested for indecent exposure; blood stains were discovered on the bedding of E.R.'s bed; and E.R. said that after school each day he and David each separately showered with Michael.

Gabriela B. appeals the judgment terminating her parental rights to her two-and-one-half-year-old son, Gabriel B. She contends the court erred by declining to apply the sibling relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v))[1] to termination of parental rights. We affirm.

Alberto C. appeals a juvenile court order terminating parental rights to his minor son, Roberto C., pursuant to Welfare and Institutions Code section 366.26.[1] Alberto challenges the sufficiency of the evidence to support the court's finding that Roberto was adoptable. Alberto further argues that if this challenge is successful, the termination of his parental rights as to Roberto's sister, Victoria C., should also be reversed so the juvenile court can determine whether the sibling exception to adoption applies. We affirm the order.

Jeffrey J. Como appeals a judgment following his convictions of selling or furnishing a controlled substance, namely cocaine base (Health & Saf. Code, § 11352, subd. (a)),[1] and carrying a concealed weapon (former Pen. Code, § 12020, subd. (a)).

Defendant and appellant Grant Donald Church contends the trial court erred when it sentenced him to the upper term of three years in state prison instead of the two-year term negotiated in his plea agreement after Church violated his condition of release. Church contends this matter should be remanded for resentencing in accordance with his plea bargain or, if the trial court chooses not to impose that bargained-for sentence, to allow him to withdraw his guilty plea. We agree.

Defendant Jerry William McCluney appeals from a conviction and sentence after he obtained a reversal of his convictions on two counts in a prior appeal and the case was remanded to the trial court for further proceedings. In the prior appeal, McCluney successfully argued that his convictions for assault with a firearm and possession of cocaine for sale should be reversed because the trial court failed to conduct a hearing regarding alleged juror misconduct. On remand, the trial court held a hearing and granted McCluney's motion to release the jurors' contact information. The trial court subsequently entertained McCluney's motion for a new trial on the ground of juror misconduct, and denied the motion. The trial court then reinstated McCluney's convictions on the two relevant counts.
In this appeal, McCluney contends that the trial court erred in denying his motion for new trial. According to McCluney, the People failed to rebut the presumption that the jury misconduct, which involved a juror referring to the dictionary definition of "intent" during deliberations, was prejudicial. We conclude that any presumption of prejudice was sufficiently rebutted in this case. We therefore affirm McCluney's reinstated convictions.

A jury found that Matthew Smeltzer was a sexually violent predator (SVP) for purposes of his continued civil commitment at Coalinga State Hospital (Coalinga). Challenging the judgment on appeal, Smeltzer argues the trial court erred by limiting his presentation of expert testimony on the volitional impairment requirement, and declining to modify an instruction on the volitional impairment requirement. He also asserts his indeterminate commitment violates his constitutional rights. We find no reversible error and affirm.