CA Unpub Decisions

Amber P. appeals judgments terminating parental rights to her children, E.P., A.P., and Edward P. She also appeals an order denying a hearing on her petition for modification under Welfare and Institutions Code section 388. (Unless specified, all statutory references are to the Welfare and Institutions Code. Rule references are to the California Rules of Court.)
Court affirm the order denying a hearing under section 388 and the judgments terminating parental rights to A.P. and Edward P. We conclude substantial evidence does not support a finding that E.P. is likely to be adopted within a reasonable time, and reverse the judgment terminating parental rights to E.P.

In May 2006 a jury found Stephen Frank White was a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600 et seq. He was committed for two years to the custody of the Department of Mental Health (the Department). White appeals, arguing the trial court erred in excluding expert testimony that the treatment offered him by the Department would not benefit him and that the evidence was insufficient to find him an SVP. The judgment is affirmed.

Patricia L. appeals a judgment terminating her parental rights to her minor son, Marc R., under Welfare and Institutions Code section 366.26. Patricia challenges the sufficiency of the evidence to support the court's findings that Marc was adoptable. Court affirm the judgment.

After a bench trial, defendant and appellant Gilbert Allen Romero was found guilty of possession of a controlled substance (Health & Saf. Code, 11377, subd. (a), count 1) and transportation of a controlled substance. (Health & Saf. Code, 11379, subd. (a), count 2.) The trial court also found true the allegations that defendant had two prior strike convictions (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two prior prison terms, within the meaning of section 667.5, subdivision (b). The court sentenced defendant to a total prison term of 27 years to life, which consisted of the indeterminate sentence of 25 years to life on count 2 (deemed the principal count), the indeterminate sentence of 25 years to life on count 1, to run concurrent, plus two consecutive years for the two prison term enhancements.
On appeal, defendant contends: 1) his Sixth Amendment right to a speedy trial was violated; 2) the trial court abused its discretion by refusing to strike one of his strike convictions; 3) his sentence violated the California constitutional prohibition against cruel and unusual punishment; 4) the imposition of potential life sentences under the Three Strikes law violated the prohibition against double jeopardy; and 5) the concurrent sentence on count 1 should be stayed under section 654. The People concede, and we agree, that the sentence on count 1 should be stayed. In all other respects, Court affirm.

Defendant pleaded guilty to child endangerment (Pen. Code, 273a, subd. (a))[1]with a possible maximum term of six years in state prison. Following a sentencing hearing, defendant was sentenced to the upper term of six years in state prison. On appeal, defendant contends (1) she was deprived of her federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term; and (2) the trial court engaged in an improper dual use of facts by imposing the upper term based on the victims vulnerability. Court agree, as we must, that defendants upper term sentence runs afoul of Cunningham; however, we find that the error was harmless beyond a reasonable doubt. In addition, Court reject defendants claim that the court engaged in an improper dual use of facts.

Defendant Johnnie Krazie Chagolla and Daniel Danny Boy Martinez both members of the West Side Verdugo gang held up a drug dealer. Even though the drug dealer gave up his drugs without a fight, defendant shot and killed him.
Based in part on the testimony of Martinez, defendant was convicted of first degree murder (Pen. Code, 187, subd. (a), 189) and second degree robbery (Pen. Code, 211, 212.5, subd. (c)); on each count, a gang enhancement (Pen. Code, 186.22, subd. (b)(1)) and an enhancement for causing death by personally and intentionally discharging a firearm (Pen. Code, 12022.53, subd. (d)) were found true. Defendant was sentenced to a total of 90 years to life in prison. Court find no error. Hence, Court affirm.

This action arises from plaintiffs being born prematurely, with cerebral palsy. Plaintiffs, through their guardian ad litem, filed a wrongful life lawsuit against Dr. Lopez, their mothers obstetrician/gynecologist (Ob/Gyn), claiming Dr. Lopez should have advised their mother that she had the right to abort her pregnancy.
After reviewing the expert declarations and other evidence submitted in support of and in opposition to Dr. Lopezs summary judgment motion, we affirm, finding it is undisputed that Dr. Lopez did not owe plaintiffs mother a duty to advise her of her right to an abortion. Court further reject plaintiffs other contentions as moot or lacking in merit.

On September 21, 2006, in case No. SWF014939, pursuant to Penal Code section 1192.5,[1]defendant, represented by counsel, pled guilty to a violation of sections 459 (count one, residential burglary) and 496(a) (count five, receiving stolen property). In accordance with the negotiated disposition, defendant was committed to state prison for four (4) years less custody credits and the remaining counts and special allegations were dismissed and stricken on motion of the district attorney and in the interests of justice. ( 1385). The judgment is affirmed.

Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
Court offered the defendant an opportunity to file a personal supplemental brief, which he has not done.Court have now concluded our independent review of the record and find no arguable issues.

Appellant Charles Edward Turner stands convicted, following a jury trial, of assault with a firearm involving the personal use of a firearm (Pen. Code,[1] 245, subd. (a)(2), 12022.5, subd. (a)(1); counts 1-4), discharge of a firearm with gross negligence ( 246.3; count 5), shooting at an occupied motor vehicle ( 246; count 6), child endangerment ( 273a, subd. (a); counts 7-8), and possession of a firearm by an ex-felon ( 12021, subd. (a)(1); count 9). Following a bifurcated court trial, he was found to have suffered two prior serious felony convictions ( 667, subd. (a)(1)) that were also strikes ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and to have served a prior prison term ( 667.5, subd. (b)). The trial court dismissed one strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, sentenced appellant to prison for a total unstayed term of 27 years, and ordered him to pay a restitution fine. Appellant filed a timely notice of appeal.
Court originally affirmed. (People v.Turner (Dec. 16, 2005, F046307 [nonpub. opn.].) Subsequently, however, the United States Supreme Court granted certiorari, vacated the judgment, and remanded the cause to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Accordingly, Court recalled the remittitur, vacated the judgment, and reinstated the appeal. For the reasons that follow, Court again affirm.

Appellant S.V. is the mother of T. and J. Lee S., appellants husband, is J.s father and T.s stepfather. In July 2006, appellant, Lee S., and the two children were staying with friends when the police were called on a spousal abuse dispatch. Lee S. was arrested for sexually assaulting appellant, and their friends reported appellant was abusing prescription pain medication. The children were detained, a petition was filed pursuant to Welfare and Institutions Code section 300, subdivision (b), and the children were adjudged dependents. The children were placed in a foster home, and the court ordered appellant and Lee S. to receive reunification services. Court affirm.

Defendant was convicted by jury trial of second degree burglary (Pen. Code, 460, subd. (b)).[1] He waived a jury trial as to the prior strike conviction allegation and the trial court then found true the prior conviction allegation. At sentencing, the trial court denied defendants motions to strike the prior strike conviction and to reduce the burglary conviction to a misdemeanor. The court imposed the low term of 16 months and doubled it to 32 months. On appeal, defendant contends that the trial court abused its discretion by denying his motion to strike the prior conviction and by denying his motion to reduce the burglary conviction to a misdemeanor. Finding no abuse of discretion, Court affirm.

It was alleged in a juvenile wardship petition that appellant Isaac H., a minor, committed kidnapping for the purpose of committing robbery (kidnap-robbery) (Pen. Code, 209, subd. (b)(1);[1]count 1), simple kidnapping ( 207, subd. (a)); count 2); second degree robbery ( 211, 212, subd. (c); count 3) and assault by means of force likely to cause great bodily injury ( 245, subd. (a)(1); count 4), and that in committing counts 1, 2 and 3, he personally used a knife ( 12022, subd. (b)(1)). At the jurisdiction hearing, the juvenile court found all allegations true. At the disposition hearing, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice and declared the maximum period of physical confinement to be seven years two months, followed by a term of life with the possibility of parole plus one year, based on the instant offenses and offenses adjudicated in prior wardship proceedings.
On appeal, appellant contends the evidence was insufficient to support his adjudication of kidnap-robbery. Alternatively, he argues that simple kidnapping is a necessarily lesser included offense of kidnap robbery, and therefore if his adjudication of the greater offense is allowed to stand, his adjudication of simple kidnapping must be reversed. Court reverse appellants adjudication of simple kidnapping and otherwise affirm.

Defendant Billy Wade Dick was convicted after jury trial of battery with serious bodily injury (Pen. Code, 242, 243, subd. (d)),[1] and making criminal threats ( 422). The trial court sentenced him to three years in state prison. On appeal defendant contends that the court committed prejudicial error when it (1) failed to instruct the jury that defendant had no duty to retreat, (2) failed to instruct on the law of admissions, (3) failed to instruct sua sponte on the lesser included offense of attempted criminal threats, (4) refused to give defendants requested instruction on absence of flight, and (5) failed to give a Dewberry instruction. Court disagree with defendants contentions and, therefore, affirm the judgment.