CA Unpub Decisions

A modification decision.

Defendant Larry Joseph Levine pled no contest to one count of driving under the influence (DUI) with a blood alcohol concentration above 0.08 percent, causing injury, with priors (Veh. Code, 23566, subd. (a), 23153, subd. (b)) and admitted two prior convictions of the same offense (Veh. Code, 23566, subd. (b)). In return, the People agreed to dismiss the charge of driving under the influence, causing injury, with priors (Veh. Code, 23566, subd. (a), 23153, subd. (a)) and allegations of a prior strike as to both counts (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

The trial court sentenced defendant to four years in state prison, the upper term. The court found three aggravating factors, including numerous prior convictions, a prior prison term, and defendants on-probation status at the time of the offense; the court found no factors in mitigation. Defendant appeals, contending that his sentence violated Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm.

Keith Giroux pled guilty to one count of corporal injury to a spouse or cohabitant in exchange for the dismissal of charges of sexual battery and battery on a cohabitant, and an allegation that he had a prior serious felony conviction. At the sentencing hearing, defendant claimed he had made a mistake and requested the trial court allow him to withdraw his plea. The court denied his request. On appeal, defendant now asserts there was good cause to withdraw his guilty plea and the trial courts refusal to grant this request violated his Sixth Amendment and Fourteenth Amendment rights. Court conclude that the trial court properly exercised its judgment when it denied defendant the right to withdraw his plea.

Following a contested jurisdictional hearing, the El Dorado County Juvenile Court found that the minor, Dylan H., was within the provisions of Welfare and Institutions Code section 602 in that he had committed the crime of making criminal threats. The minor was placed on probation and the court ordered him to be placed on the electronic arrest program for 83 days.
On appeal, the minor contends the juvenile court failed to determine whether the minor was eligible for deferred entry of judgment (DEJ). Court agree and remand the matter to the juvenile court.

Defendant John Elvin Perry entered a plea of no contest to possession of a controlled substance (Health & Saf. Code, 11377, subd. (a); undesignated section references are to the Health and Safety Code) and admitted a prior strike allegation in exchange for dismissal of all remaining charges against him and a sentencing lid of 32 months in state prison. The court denied defendants Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), imposed a sentence of 32 months in state prison according to the negotiated plea, and ordered that he pay specified fees and fines.
On appeal, defendant contends (1) the trial court abused its discretion in denying his Romero motion, and (2) the courts minute order is not consistent with the oral pronouncement of judgment with respect to the fees and fines imposed. Court affirm the judgment.

Defendant Timothy Edward Thomas pleaded no contest to driving with a blood alcohol level of .08 percent or above with three prior driving under the influence convictions (Veh. Code, 23152, subd. (b), 23550) and admitted a prior strike conviction. (Pen. Code, 1170.12.) According to facts contained in a motion filed by the defense, the charges were based on an incident in which defendant was driving a motorcycle at a high rate of speed and was unable to negotiate a curve in the road, resulting in his motorcycle jumping the curb and colliding with a street sign. When later tested at the hospital, defendants blood alcohol level was .19 percent. According to the information, the three prior driving under the influence convictions admitted by defendant occurred within 10 years of his current offense, and his prior strike conviction was for a violation of Penal Code section 288, subdivision (a) (lewd and lascivious act with a child under 14 years). In exchange for defendants plea, it was agreed he would receive a sentence of four years in state prison. Defendant was sentenced in accordance with the plea agreement.

Defendant Lenny Ross Maestas was previously convicted by a jury of manufacturing methamphetamine. The jury also found true the allegation that defendant was personally armed with a firearm during the commission of the crime (the arming enhancement), and convicted defendant of being a felon in possession of a firearm. Following his conviction, defendant admitted to having served a prior prison term pursuant to Penal Code section 667.5, subdivision (b), and the court found true two strike allegations.
Defendant appeals his sentence, claiming the trial court violated his federal due process and jury trial rights by imposing the upper term on the principal conviction as well as the arming enhancement without submitting the aggravating factors to a jury. Defendant further contends the trial court erred by using the fact that he was armed with a firearm during the commission of the crime as both a sentencing enhancement and as an aggravating factor to impose the upper term. Court find any error to be harmless and affirm.

Roderick C. (appellant), the father of R.H. (the minor), appeals from the juvenile courts dispositional order denying him custody of the minor. (Welf. & Inst. Code, 395; further section references are to this code unless otherwise specified.) Appellant contends the juvenile court (1) did not make the proper finding of detriment to the minor before placing her in foster care, and (2) erred in finding active efforts were made to prevent the breakup of an Indian family. Court affirm the order.

A number of appellate decisions have cautioned trial judges against tinkering with the statutory definition of reasonable doubt. An amplification of the reasonable doubt standard, no matter how well intentioned, can create confusion and lead to reversal on appeal. (See People v. Johnson (2004) 119 Cal.App.4th 976, 985-986.) This is such a case. Court agree with appellant Thompson Lee Bryson, Jr., that the trial courts efforts during voir dire to clarify the meaning of reasonable doubt effectively lowered the prosecutions burden of proof. Accordingly, Court reverse the judgment.

A number of appellate decisions have cautioned trial judges against tinkering with the statutory definition of reasonable doubt. An amplification of the reasonable doubt standard, no matter how well intentioned, can create confusion and lead to reversal on appeal. (See People v. Johnson (2004) 119 Cal.App.4th 976, 985-986.) This is such a case. Court agree with appellant Thompson Lee Bryson, Jr., that the trial courts efforts during voir dire to clarify the meaning of reasonable doubt effectively lowered the prosecutions burden of proof. Accordingly, Court reverse the judgment.

Following a hearing where the trial court denied defendants motion to suppress the evidence (Pen. Code, 1538.5),[1]defendant pleaded no contest to possessing cocaine base for sale (Health & Saf. Code, 11351.5). Defendant appeals and contends that the lower court erred in denying his motion to suppress the evidence. Additionally, he claims that the court breached his plea bargain agreement when it did not announce in open court that it was dismissing count 2 and all of the enhancement allegations. He also asserts that the matter should be remanded for resentencing or he should be able to withdraw his plea because, after he plead no contest to count 1, the court announced its ruling on defendants motion pursuant to People v. Marsden(1970) 2 Cal.3d 118 (Marsden) in the presence of the prosecution. Court are unpersuaded by defendants arguments and affirm the judgment.

Michael M. (Father) and Tamara M. (Mother) are the parents of Timothy and Phillip. The two boys, then ages two and three, were initially detained by child welfare authorities after the police found them playing unsupervised near a busy street. They were returned to their parents soon after, but they were adjudged dependents of the juvenile court in an uncontested proceeding. Several months later, police were called again to the motel in which the family lived by a report that the boys were not being cared for. Police found that the room in which the family lived was filthy and unsanitary, and witnesses reported that the boys continued to be poorly supervised. After the boys were detained, both were found to have significant mental or emotional impairments. The juvenile court entered an order removing the boys from the home. Mother and Father separately appeal, contending that the juvenile courts findings in support of removal are not supported by substantial evidence. Court affirm.

Appellants Barry and Regina Bronk, homeowners in San Leandro, appeal from summary judgment granted their real property insurer, Newport Insurance Co. (Newport). The Bronks had sued Newport for breach of contract and breach of the covenant of good faith and fair dealing because of its refusal to defend them in an action brought against them by their next door neighbors to quiet title and for declaratory and injunctive relief, nuisance, and intentional infliction of emotional distress. The neighbors action arose from a long standing dispute regarding rights to use a paved driveway which was partially on the Bronks property. Court affirm the trial courts grant of summary judgment.

Appellant Prana Nine Properties, LLC (appellant) appeals from the dismissal of its declaratory relief action seeking a judicial determination that appellant is entitled to raise the residential rent of respondent Yue Chang Ye (respondent) under the Costa-Hawkins Rental Housing Act (Civ. Code, 1954.50 et seq. (the Costa-Hawkins Act)). The trial court sustained respondents demurrer to the first amended complaint (FAC) on several grounds, including that appellant had an adequate remedy at law by which to seek the determination, and therefore, a declaratory relief action was unnecessary and inappropriate. Court affirm the dismissal on that ground.