CA Unpub Decisions

Freddy Ozuna (Ozuna) appeals from the judgment entered following a jury trial which resulted in his conviction of assault with a firearm (Pen. Code, 245, subd. (a)(2)),[1]during the commission of which he personally used a firearm
( 12022.5, subd. (a)) and personally inflicted great bodily injury ( 12022.7, subd. (a)). The trial court sentenced Ozuna to 14 years in prison. Court conclude Ozunas contentions, that the trial court violated the mandate of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] when it imposed the upper term sentence for his conviction of assault with a firearm and imposed the upper term enhancement for his personal use of a firearm during the offense, are without merit. Accordingly, Court affirm the judgment.

Azucena Varela appeals from her conviction after jury trial of sale or transportation of cocaine base. (Health & Saf. Code, 11352, subd. (a).) The court suspended imposition of sentence, granted appellant three years' formal probation, and ordered that she serve 180 days in county jail. Court affirm.

Victor G., Jr. (father) appeals from the juvenile courts order pursuant to Welfare and Institutions Code section 366.26[1]terminating his parental rights in Victor G. III (Victor) and Steven G. (together, the children). Father contends that he was improperly denied visitation rights and was thereby prevented from establishing that he maintained regular visitation and contact with the child and the child would benefit from continuing the relationship, pursuant to section 366.26, subd. (c)(1)(A). Father also contends that the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. 1902 et seq.) (ICWA). We conclude that father forfeited the visitation issue by failing to raise it in the juvenile court. We further conclude that the juvenile court erred by failing to comply with its duty of inquiry under ICWA with respect to Victor, but that father lacks standing to assert the error with respect to Steven. Court therefore affirm the order terminating fathers parental rights as to Steven, but reverse the order as to Victor and remand for the limited purpose of permitting the juvenile court to inquire of father whether Victor is or may be an Indian child and if so, to comply with ICWA.

A jury found defendant Joseph William Hanneman guilty of felony hit and run with bodily injury. (Veh. Code, 20001, subd. (a).) The trial court found defendant guilty of the severed charge of driving with a suspended license (Veh. Code, 14601.1, subd. (a)) and found defendant in violation of his probation on a separate case. Sentenced to an aggregate term of three years eight months in state prison, defendant appeals. He contends the trial court improperly admitted evidence in the jury trial that his drivers license was suspended and of his previous threats toward one of the witnesses. He also contends there was insufficient evidence to support the felony judgment. Court affirm.

A jury convicted defendant Julio Romero Garza of second degree commercial burglary (Pen. Code, 459),[1]forcible oral copulation ( 288a, subd. (c)(2)), two counts of rape ( 261, subd. (a)(2)), and two counts of forcible sodomy ( 286, subd. (c)(2)). The trial court sentenced defendant to the upper term on all counts, which resulted in an aggregate sentence of 40 years in state prison.
On appeal, defendant contends (1) taking a deoxyribonucleic acid (DNA) sample from him pursuant to section 296 violated his Fourth Amendment rights; (2) DNA identification evidence was improperly admitted; (3) the trial court erred in admitting DNA match probability evidence referenced to three racial groups; (4) the court improperly admitted uncharged misconduct evidence; and (5) the courts imposition of the upper term sentence on each count violated his federal constitutional rights. Court reject these contentions and affirm the judgment.

Following his convictions for two counts of first degree murder, two counts of attempted murder committed with deliberation and premeditation, and one count of evading a peace officer with willful and wanton disregard for safety, defendant Xer Vang appeals. He contends there was insufficient evidence that one of the murders was committed with premeditation and deliberation, the trial court erred in admitting unduly prejudicial autopsy photographs, and the trial court erred in sentencing him to the upper term on the conviction for evading a peace officer and imposing that term to run consecutively to his other sentences. Court affirm.

A jury convicted defendant Brian Corey Draper of two counts of felony unlawful sexual intercourse with a 16 year old more than three years younger than himself (Pen. Code, 261.5, subd. (c) counts one and two) and nine counts of pimping ( 266h, subd. (a) counts four through twelve). The prosecution had dismissed count thirteen on the first day of trial, and the jury was unable to reach a verdict on count three. Court affirm the judgment in all other respects.

Following a jury trial, defendant Jerry Hamilton was found guilty of manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a)) and possession of an analog precursor with intent to manufacture methamphetamine. (Health & Saf. Code, former 11383, subd. (c)(1).) In bifurcated proceedings, the court found true multiple enhancements, including seven prior drug convictions under Health and Safety Code section 11370.2, subdivision (b), one prior drug conviction under Health and Safety Code section 11370.2, subdivision (c), and three prior prison terms. (Pen. Code, 667.5, subd. (b).)

Sentenced to an aggregate term of 34 years in state prison, defendant appeals his convictions. Defendant contends he was denied due process of law by the trial courts failure to grant a witness immunity, and the trial court erred in using prior convictions to impose an upper term and to enhance the sentence on the charge of manufacturing methamphetamine.[2] In supplemental briefing, defendant contends that, under Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham), the trial court erred in sentencing him to the upper term on the manufacturing methamphetamine count. Court affirm.

A modification decision.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Having reviewed the record as required by Wende, Court affirm the judgment.

On January 18, 2007, Porfiro Carranza left his car warming up in his driveway. When he returned to his driveway, the car was gone. Later that day, defendant Charles Anthony Williams was seen driving Carranzas car. He did not have permission to drive the car. Defendant was charged with taking or driving a vehicle without the owners consent (Veh. Code, 10851, subd. (a)) and receiving stolen property (Pen. Code, 469d, subd. (a). As to both of these counts, it was further alleged defendant had previously been convicted of vehicle theft. (Pen. Code, 666.5.) Defendant was also charged with possession of methamphetamine. (Health & Saf. Code, 11377.) It was further alleged that defendant had served three prior prison terms (Pen. Code, 667.5, subd. (b)) and that he was on probation when the current offense was committed (Pen. Code, 969).
Court find no arguable error that would result in a disposition more favorable to defendant.

Johnny D. (appellant), the father of C.B. (the minor), appeals from the juvenile courts order terminating parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant contends adequate efforts were not made to notify him of the dependency proceedings and he erroneously was denied presumed father status. Court affirm.

jury returned a defense verdict in favor of defendant Gerald Rudick and against plaintiffs John C. Fraser and Kara Fraser (together the Frasers). Rudick requested $55,679.96 for expert witness costs under Code of Civil Procedure[1]section 998. The court instead awarded $21,595.06, awarding nothing for thecosts incurred for experts who did not testify at trial. Rudick then brought a motion for reconsideration, which the court denied.
Rudick appeals the postjudgment orders, contending the court (1) erred as a matter of law when it categorically denied the recovery of expert witness fees and costs for any experts who did not testify at trial, and (2) further compounded that error by refusing Rudick a meaningful opportunity to respond to its denial of expert fees and costs and by declining to reconsider that erroneous ruling. Court reverse the court's order denying Rudick's motion to recover expert witness costs for the services of the expert witnesses he claims assisted him in the preparation of his defense at trial, but who did not testify at trial, and further remand the matter with directions.

In 1985, Beverly and Wesley Andrew filed for dissolution after a 15-year marriage. Two years later, the parties entered into a marital settlement agreement, and the court incorporated this agreement into a dissolution judgment that resolved several additional property division issues. Beverly died 12 years later. Five years after Beverly's death, in 2005, Tamara Bell, administrator of Beverly's estate, brought a motion to enforce various provisions of the 1987 agreement and judgment. The court granted her request that certain property be sold and the proceeds divided, but denied her remaining claims based on the court's factual findings that the laches and waiver doctrines barred the claims. Bell appeals. Court affirm.