CA Unpub Decisions

Defendant and appellant Kevin Eatmon appeals the judgment and sentence imposed following his jury trial conviction for first degree burglary. Appellant contends the trial court erred by giving CALCRIM 359 (Corpus Delicti) and CALCRIM 362 (Consciousness of Guilt). Appellant also contends there was insufficient evidence to support a finding that an occupant was present in the home at the time of the burglary, and that such finding should have been submitted to the jury rather than decided by the court. Court affirm.

The California Correctional Supervisors Organization (CCSO) appeals the denial of its petition for writ of mandate seeking to compel the California State Controllers Office (Controller) and the California Department of Corrections and Rehabilitation (CDCR) to automatically stop deducting union dues from the salaries of rank and file members of the California Correctional Peace Officers Association (CCPOA) when they are promoted to a supervisory classification. Court conclude the CCSO has failed to establish the existence of a ministerial duty that would require respondents to automatically discontinue such member deductions and affirm.

After defendants motion to suppress was denied, he submitted his case to the trial court on the basis of the police reports and was found guilty of one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). In this appeal he renews his challenge to the warrantless search that resulted in the seizure of methamphetamine from him. We find that the search was lawful and affirm the judgment.

E. L. (mother) appeals from the order terminating her parental rights to her son, A. S. She contends that the order is voidable because the San Francisco Department of Human Services (Department) failed to comply with the Indian Child Welfare Act of 1978 (26 U.S.C. 1901) (ICWA). Court affirm.

A jury found appellant Robert Allen Hillmann guilty of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)) based on eyewitness testimony from a police officer identifying him as the driver of a stolen car. In this appeal, appellant argues he was deprived of his constitutional rights to due process and confrontation when the trial court denied his request for a continuance of trial in order to file a motion under Evidence Code section 1043 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Court conclude the judgment must be reversed and the case remanded for further proceedings.

Arthur Rohith Abraham is presently committed to Napa State Hospital following determinations that he was not guilty by reason of insanity of the offenses of murder, inducing criminal abortion, and separately charged sexual assaults of his common law wife. This appeal follows his petition for release pursuant to Penal Code section 1026.2. Court affirm.

A jury found appellant Cardell Newton guilty of stalking (Pen. Code, 646.9, subd. (a)) and making criminal threats against two different victims (Pen. Code, 422), and the trial court sentenced him to a total of three years eight months imprisonment. On appeal, appellant argues the courts imposition of an upper term sentence for the stalking charge was an abuse of discretion and violated his constitutional right to a jury trial. (See Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).) court affirm the judgment.

When the mother of twin boys (the boys), now age 15, died unexpectedly in December 2005, their mother's sister (aunt) petitioned to be appointed guardian of the boys. The aunt and her mother (grandmother) lived near each other while the boys mother was alive and they participated actively in the boys daily lives. The boys father, with whom the boys had never lived and saw only on limited visits, objected to the guardianship petition. The trial court denied the petition, stating, I think I have to go with following the preference under the lawthat custody should be with the parent thats still here. In determining this sensitive issue, the trial court applied the wrong standard, disregarding uncontradicted evidence that the consequences would be detrimental to the youths. The matter must be remanded for reconsideration under the correct legal standard.
The judgment is reversed and the matter is remanded with directions to reconsider the guardianship petition in light of this opinion.

Gary Dwayne Simpson appeals from a judgment of conviction after a guilty plea. Defendants counsel has briefed no issues and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel advised defendant of his right to file a supplemental brief and none has been filed. Court have reviewed the record on appeal and find that there are no meritorious issues to be briefed or argued.

Defendant Michelle T. appeals from the juvenile courts jurisdictional order declaring her children, now ages nine and ten, to be dependents under Welfare and Institutions Code section 300, subdivision (b). She acknowledges that the record contains substantial evidence of a long history of drug use by her and the childrens father, but argues that there is no evidence that the parents drug use put the children in danger or created a risk that they would be placed in danger. Court affirm.

Petitioner Angel C. seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) from the juvenile courts orders issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her son, Bailey C. Petitioner also requests that we stay the permanent plan hearing, which the juvenile court set for November 26, 2007. Court deny both the petition and the request for a stay.

Defendant and appellant Victor M. Aguilera appeals from the judgment entered following a jury trial that resulted in his convictions for two counts of assault with a firearm, mayhem, negligently discharging a firearm, battery, second degree burglary, second degree robbery, and dissuading a witness by force or threat. The trial court sentenced Aguilera to a total term of 64 years, 4 months in prison. Aguilera contends the trial court: (1) prejudicially erred by admitting evidence of his prior conviction; and (2) made various sentencing errors. The People acknowledge that, although Aguilera was sentenced pursuant to the Three Strikes law, he did not have a trial on the alleged prior conviction allegation.
Court now conclude imposition of the upper term on count 3, and consecutive terms on counts 4 and 9, did not violate Blakely v. Washington, supra, 542 U.S. 296 or Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856]. Court nonetheless vacate the sentence imposed by the trial court and remand for a determination of the truth of the prior conviction allegation, and for resentencing in accord with the principles articulated in Blakely and Cunningham and the opinions expressed herein. In all other respects, Court affirm.

This case involves four consolidated appeals arising out of proceedings concerning the Rosita Gartz Living Trust Dated February 22, 1997 (the 1997 Trust). The appellants are Lionel Daley, one of the two original co-trustees of the 1997 Trust, and Leonela Sanz, Daleys mother and one of the 1997 Trust beneficiaries. The respondents are Manuela Norman, a beneficiary of the 1997 Trust and the second (along with Daley) original co-trustee, and Michael Chmura, who was appointed by the probate court as a referee to conduct a sale of real property owned by the trust, and who later, by court order, became sole trustee.
Court therefore affirm the orders in full.

Defendant Ray Tommy Simental appeals from the judgment of conviction following a jury trial. He was convicted of second degree robbery (count 1; 211) and grand theft of more than $400 (count 2; 487, subd. (a)).[1]Defendant admitted that he had previously been convicted of violating section 422, which qualified as both a prior strike ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony ( 667, subd. (a)(1)). The trial court sentenced defendant to total term of 15 years in state prison, calculated as follows: the upper term of five years for the robbery conviction, which was doubled based on the prior strike conviction, plus an additional term of five years for the prior serious felony conviction. The court stayed the sentence for grand theft pursuant to section 654. The court awarded defendant 200 days of custody credit: 134 actual days, plus 66 days good time/work time.
The judgment is affirmed.