CA Unpub Decisions

The juvenile court declared appellant Aaron G. to be a ward of the court after finding that he had committed one count of forcible lewd acts on a child (Pen. Code, 288, subd. (b)(1); count 3) and two counts of lewd acts on a child (Pen. Code, 288, subd. (a); counts 1 & 2). He was ordered into suitable placement. The victim was appellants younger brother, Anthony. At the time of the incidents, appellant was 12 years old and Anthony was 11 years old. At the adjudication hearing two years later, Anthony described three separate incidents in which he submitted to anal sex by appellant, against his will, after appellant forcibly bound his wrists and feet with masking tape (count 3), and after appellant blackmailed him (counts 1 & 2) by threatening to tell their grandmother about Anthonys consensual sexual relationship with another boy, Chris.
On appeal, appellant complains about his inability to cross-examine Anthony about the sex acts that Anthony had performed with Chris. He further maintains that there was insufficient evidence that he appreciated the wrongfulness of his conduct under In re Gladys R. (1970) 1 Cal.3d 855, 858 (Gladys R.). Finally, he argues that the trial court should not have admitted evidence that Anthony saw appellant place a two year old girl inappropriately on his lap, which was the reason Anthony decided to tell his grandmother what appellant did to him.
Court find no merit in the contentions, and affirm.

Appellant Alton Lionell Sterling and a codefendant, Randell Nashan Yoakum, committed a series of armed robberies at small, family-operated stores. At that time, appellant was 19 years old, and Yoakum was 14 years old. During one of the robberies, they both shot at Jose Chitay, who died from a bullet fired by Sterling. They both confessed to a police detective following their arrests. They were tried jointly in the criminal court. Appellant was tried by a jury; Yoakum elected a court trial. They were convicted of most of the charges against them. Court recently affirmed Yoakums conviction, in a nonpublished opinion, People v. Yoakum (July 31, 2007, B190194). Respondent concedes the first issue. Court reject the second issue, based on People v. Black (2007) 41 Cal.4th 799 (Black II). Court order a modification in the abstract of judgment, and otherwise affirm.

Jean Mizrahi appeals the judgment entered in this action to quiet title to property claimed to be owned by her adult son, Allen Mizrahi. Jean contends the transfer to Allen of title to her home was induced by fraud or mistake and the trial courts conclusion otherwise is not supported by substantial evidence. Court affirm.

Following a jury trial, defendant Ronald Harold Lewis was convicted of possessing a sawed-off rifle (count 2) and ammunition (count 3) as a convicted felon. (Pen. Code,[1] 12021, subd. (a)(1), 12316, subd. (b)(1).) In a bifurcated proceeding, the trial court found true six prior prison term allegations and one strike allegation. ( 667.5, subd. (b), 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) Defendant was sentenced to a total term of 12 years in state prison. He appeals, contending (1) the trial court erred in admitting evidence of uncharged acts pursuant to Evidence Code section 1101, subdivision (b); and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process when the trial court imposed the upper term. Court reject these contentions and affirm.

A jury convicted defendant Earl Emerson Jordan of murder under Penal Code section 187, subdivision (a) (count 1); burglary under section 459 (count 2); robbery under section 211 (count 3); grand theft of a firearm under section 487, subdivision (d)(2) (count 4); and unlawful driving or taking a vehicle under Vehicle Code section 10851, subdivision (a) (count 5). The jury also made true findings that the murder charged in count 1 occurred during the course of a first degree residential burglary or robbery under section 190.2, subdivision (a)(17) and that defendant personally used a deadly and dangerous weapon during the course of all his offenses under section 12022, subdivision (b)(1). The jury acquitted defendant of the charge of assault with a deadly weapon under section 245, subdivision (a)(1) (count 6). The trial court sentenced defendant to state prison for the determinate sentence of four years, followed by a consecutive indeterminate sentence of life without the possibility of parole. On appeal, defendant contends that the trial court erred in refusing defendants request for jury instructions on self defense and lesser included offenses of second degree murder and manslaughter. For the reasons set forth below, Court affirm the judgment.

Defendant and appellant Kenneth Levar Woods entered into a plea agreement in which he pled guilty to one count of unlawful sexual intercourse with a minor. (Pen. Code, 261.5, subd. (d).)[1] Pursuant to the plea agreement, defendant was sentenced to the upper term of four years, and was released on a Cruz[2]waiver with four years of probation. The trial court later found that defendant violated his probation by committing spousal battery. ( 273.5.) The court revoked defendants probation and imposed the four-year prison term. Defendants sole contention on appeal is that the court erred in imposing the upper term, pursuant to Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham). Court dismiss defendants claim because he failed to obtain a certificate of probable cause from the trial court.

Minor admitted the truth of allegations that he committed two counts of lewd acts upon two separate children (Pen. Code, 288, subd. (a)), misdemeanor battery upon a custodial officer ( 243.1), and misdemeanor assault upon another custodial officer ( 241.1). After a contested dispositional hearing, the court committed minor to CYA. On appeal, minor contends the court abused its discretion in committing minor to CYA. For the reasons set forth below, Court affirm the judgment.

Appellant Donald Y. (father) appeals from a juvenile court order finding that visitation would be detrimental to his daughters, Lisa (currently 16 years old) and Amanda (currently 9 years old) (the children). Father argues that the order should be reversed because the juvenile court abused its discretion in suspending visitation, since there was insufficient evidence that visits with the children were detrimental. He also contends that the court improperly delegated authority to the San Bernardino County Department of Childrens Services (the department) to decide if visitation should resume later. Court affirm.

Appellant Billy Cochran contends the trial court abused its discretion when it denied his motion to disqualify Attorney John J. Johnson as counsel for respondent Donna Cochran and entered a judgment dismissing his underlying action with prejudice. Court vacate the judgment, direct the trial court to file the second amended complaint, and remand for further proceedings. Court also conclude the trial court did not abuse its discretion in denying the motion to disqualify Johnson.

This is the second of two appeals filed by Charles Nelson (appellant) in this dissolution of marriage matter. In both appeals, appellant has challenged the denial of his motions to set aside an order or judgment previously entered in the dissolution proceeding. In the first appeal, appellant alleged that the order or judgment was procured by fraud. Appellant claimed that findings that he owed support payments and certain property taxes were wrong because of fraud and, as a result, he was cheated on the division of proceeds from the sale of a family residence. Appellant discussed orders entered in 1996 and 1997, and specifically alleged that the fraud occurred at a hearing in March 1997. He also alleged that a court commissioner had colluded in the fraud by destroying information and proposed exhibits he mailed to her, at her direction, to support his allegation that the court had been given false information. Court affirmed the trial courts denial of appellants motion to set aside on two grounds. First, appellant had failed to challenge the order allegedly procured by fraud within the time allowedone yearby Family Code section 2122. Second, if the appeal was construed as a direct challenge to the underlying order or judgment, which was entered in 1997, then the appeal was untimely.

This case involves the cross-appeals of a judgment that Bobby Lee Kinder evaded a police officer, drove under the influence, and drove with a blood alcohol level exceeding 0.08 percent in violation of the Vehicle Code. Kinder appeals from the judgment, contending that there was insufficient evidence of felony evasion and that the trial court erred in sentencing him. The People appeal from the trial courts decision to grant Kinders motion to strike two prior strikes. For the following reasons, Court affirm the convictions and remand for resentencing.

Sergio C. appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26) to his son, X. Appellant contends the court erred by rejecting his claim that termination would be detrimental to X. based on their parent/child relationship. On review, Court disagree and affirm.

Consuelo G. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her son, X.[1] Appellant contends the court erred by rejecting her claim that termination would be detrimental to X. based on their parent/child relationship. On review, Court disagree and affirm.

The juvenile court readjudged appellant, Armand T., a ward of the court (Welf. & Inst. Code, 602) after it sustained allegations charging Armand with possession of a knife on school grounds (Pen. Code, 626.10, subd. (a)) and fighting in public (Pen. Code, 415, subd. (1)). On October 11, 2006, the juvenile court placed Armand on probation for a maximum period of one year three months. On appeal, Armand contends the evidence was insufficient to sustain the juvenile courts finding that he possessed a knife on school grounds. Court affirm.