CA Unpub Decisions

Jassel C. (the mother) and Jesus R. (the father) separately appeal from a juvenile court order terminating their parental rights to their four children pursuant to Welfare and Institutions section 366.26. The juvenile court order refusing to apply the section 366.26 subdivision (c)(1)(A) beneficial exception to adoption must be affirmed because it is supported by substantial evidence. Also, the mother appeals from the denial of her section 388 modification petition. Court also affirm an order denying the mothers section 388 petition because the juvenile court, without abusing its discretion, could have found there were no changed circumstances and the childrens best interests would not be served by modifying any existing orders.

Mark V. and Sophia A., the parents, appeal from a Welfare and Institutions Code section 366.26 parental rights termination order. They contend the parental rights termination order must be reversed because of noncompliance with the Indian Child Welfare Act. The parties have stipulated to a limited reversal of the parental rights termination order to allow compliance with the Indian Child Welfare Act and immediate remittitur issuance. Court accept the parties stipulation.

Defendant Victor Joseph Hernandez entered a straight-up plea of guilty to evading a peace officer with willful disregard for the safety of others (Veh. Code, 2800.2, subd. (a)--count I), and misdemeanor driving with a revoked or suspended license for a prior driving under the influence conviction (id., 14601.2, subd. (a)--count II), and admitted three prior convictions for driving with a revoked or suspended license (id., 14601, 14601.1, 14601.2, 14601.5), two of which occurred within the past five years.

Defendant appeals, contending (1) he was not advised of the consequences of his plea, and (2) imposition of the upper term violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Disagreeing with both contentions, Court affirm the judgment.

Thad Andrew Jesperson, a former second and third grade school teacher at Toler Elementary School (Toler) in San Diego, appeals his eight child molestation convictions, involving four victims, after three jury trials and a bifurcated court trial. At his first trial, the jury returned a verdict convicting Jesperson of a lewd and lascivious act upon a child under the age of 14 years (Pen. Code,[1] 288, subd. (a); count 11, involving Emily A.) and found "that [Jesperson] did not commit an offense of [s]ection 288[, subdivision] (a) against more than one victim within the meaning of [s]ection 667.61[, subdivisions] (b)(c)(e)." The jury deadlocked on 12 counts alleging similar lewd and lascivious acts upon other young female students and each count's respective/attendant one strike law multiple victim allegation (counts 1 & 2 involved J.S.; counts 3, 4 & 5 involved Michelle A.; counts 6 & 7 involved K.H.; count 8 involved D.R.; counts 9 & 10 involved Renne B.; count 12 involved Aimee M.; and count 13 involved Teresa G.). The trial court declared a mistrial on these charges. Before the second trial, the court denied

Plaintiff and appellant Bruce R. Talley sued a number of individual and corporate defendants for fraud and related theories, based upon their different roles in allegedly participating in a securities fraud scheme, the "Heritage Bonds" transactions lasting from 1996-1999. Plaintiff was a securities sales representative who was previously employed by securities firm Miller & Schroeder Financial, Inc. (Miller & Schroeder), the now bankrupt predecessor of one of the current defendants and respondents, the Marshall Group, Inc. (Marshall).[1] Plaintiff alleges that in the scope of his employment by Miller & Schroeder, he sold worthless Heritage bonds to his investor clients, who then sued him and others, resulting in the loss of his livelihood and other injury. He seeks to recover damages from the various defendants and respondents on different theories, based on the nature of their participation in the Heritage Bonds securities fraud, and he claims personal financial loss of over $5 million. Court therefore reverse the judgments of dismissal as to U.S. Trust and Valuation only, but affirm the balance of the dismissal judgments.

A jury convicted Alejandro Cesar Trujillo[1]of first degree murder (Pen. Code, 187, subd. (a)) and found true an enhancement allegation that he intentionally and personally discharged a firearm causing death to a person (Pen. Code, 12022.53, subd. (d)). At trial, the court permitted the defense to introduce evidence that the victim, Alexander Cole, had a character trait for violence. Over Trujillo's objection under Evidence Code[2]section 352, the court allowed the prosecution under section 1103, subdivision (b) (hereafter section 1103(b)) to introduce rebuttal evidence that Trujillo had admitted under oath in a prior criminal proceeding that he had threatened to commit a crime that could have resulted in death or great bodily injury (Pen. Code, 422) to someone not involved in the present case.
Court conclude the court did not abuse its discretion when it allowed the prosecution to introduce rebuttal evidence that Trujillo had admitted making a criminal threat, and thus Court affirm his conviction in the present case.

A jury convicted Sean Hardy of possessing a controlled substance (Health & Saf. Code, 11350 subd. (a)) and unlawful possession of a syringe (Bus. & Prof. Code, 4140). It found he had two prior strikes (Pen. Code[1], 667 subds. (b)-(i), 1170.12, 668) and had served two prior prison terms ( 667.5 subd. (b), 668). The court struck one prior strike, refused to strike the second prior strike and sentenced him to prison for six years: double the two-year middle term for possessing a controlled substance with a prior strike enhanced by two one year terms for the prior prison terms. It imposed a concurrent term for unlawfully possessing a syringe.The judgment is affirmed.

A jury convicted Michael Alfred Fanelli of attempted voluntary manslaughter (Pen. Code, 664/192, subd. (a))[1]and assault with a firearm ( 245, subd. (a)(2)). The jury also found that in the commission of the crime, Fanelli used a firearm ( 12022.5, subd. (a)) and personally caused great bodily injury to the victim ( 12022.7, subd. (a)). Fanelli also admitted a prior conviction for assault with a firearm. The trial court sentenced Fanelli to 30 years in prison. As discussed below, Court conclude that Fanelli's challenges to his conviction are without merit. Court agree, however, that his sentence is constitutionally flawed and remand for resentencing.

During a routine traffic stop, police officers found the driver defendant Mark Chris Roberts in possession of some marijuana; they found the passenger defendant Antyon Dotson in possession of about $600, mostly in $20 bills. They arrested Roberts on some outstanding warrants, and they let Dotson go.

The officers, however, knew that Roberts and Dotson were both members of the 1200 Blocc Crips, a gang heavily involved in selling rock cocaine. They suspected that Roberts had more drugs concealed somewhere on his person. While transporting him, they repeatedly asked him if he had any other drugs, warning him that it would be a crime to bring drugs into the jail. Just as repeatedly, he said no. Nevertheless, a booking officer found a 4.56 gram rock of cocaine between Robertss buttocks. The judgment is affirmed.

This appeal is from a judgment of dismissal after an order sustaining defendants demurrer to plaintiffs first amended complaint (FAC) without leave to amend on collateral estoppel grounds. Court affirm.

Defendant was convicted of several felonies based on an incident that occurred at the home of Kelley Lundin on January 25, 2001. He was given a three strikes sentence of 20 years plus 25 years to life in prison, and appeals. He contends his three strikes sentence was improperly imposed, because the jury found only one of two prior strike allegations true and specifically found the other prior strike allegation not true. He also contends the trial court erroneously refused to dismiss Juror No. 10 and substitute an alternate juror during trial, and erroneously denied his motion to reopen his defense case to present evidence that Lundin, a material prosecution witness, bragged about lying at trial. Court find each of these claims without merit, and affirm the judgment in all respects.

A jury convicted defendant of felony evading of a police officer (count 1Veh. Code, 2800.2, subd. (a)) and misdemeanor driving under the influence (count 2Veh. Code, 23152, subd. (a)). After a bifurcated trial, the jury additionally found true defendant had suffered three prior prison terms. (Pen. Code, 667.5, subd. (b).)[1] The court sentenced defendant to the upper term of three years on count 1, time served on count 2, and consecutive one-year terms for each of the three prior prison terms, for an aggregate term of six years. On appeal, defendant contends the trial court violated his Sixth Amendment (U.S. Const., 6th Amend.) right, via the Fourteenth Amendment (U.S. Const., 14th Amend.), to a jury trial finding on those factors it used in justifying imposition of the upper term. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).) The People counter that the recidivist exception permitted the trial court to impose the upper term, without a jury finding, based on defendants prior convictions. Defendant replies that the dual use prohibition of section 1170, subdivision (b) barred the trial court from using defendants three prior felony convictions to impose the upper term on count 1, because defendants sentence had already been enhanced based on those crimes. To the extent that the trial court imposed the upper term based on the defendants three prior convictions, which were the substance of his section 667.5, subdivision (b) enhancements, Court agree that it erred. Nonetheless, Court find the error harmless beyond a reasonable doubt due to defendants extensive, additional prior convictions which were not used as enhancements in this case.

Appellant Alejandro Paniagua Del Rio stabbed Jose Salgado to death and a jury convicted him of second degree murder. He challenges the conviction, claiming his constitutional rights were violated in jury selection and the trial court committed prejudicial instructional error. Court affirm the judgment.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rules 8.450, 8.452) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing as to his daughter H. and son S. Court dismiss the petition.