CA Unpub Decisions

A modification decision.

Defendant Robbie Howard Woodson appeals his sentence following conviction by jury trial of the following offenses: count 1--murder (Pen. Code, 187, subd. (a); undesignated section references are to the Penal Code); count 2--assault on a child with force likely to produce great bodily injury resulting in death ( 273ab); count 4--felony child abuse ( 273a, subd. (a)) and count 5--infliction of corporal injury on the mother of a child ( 273.5, subd. (a)).
At sentencing, defendants counsel objected to imposition of the upper term on the ground that aggravating factors had not been tried to the jury as required by Blakely v. Washington, supra, 542 U.S. 296. Court conclude the case must be remanded to the trial court for resentencing in accordance with the views set forth by our Supreme Court in People v. Sandoval (July 19, 2007, S148917) Cal.4th [2007 Cal.Lexis 8244].

Powerex Corp., a Canadian marketer of wholesale energy products and services, petitions for a writ of mandate to compel the superior court to sustain its demurrer to the complaint filed by the California Department of Water Resources (DWR), in which DWR seeks a declaration that its energy contracts with Powerex are void ab initio under principles of state contract law. In its view, the Federal Power Act (the FPA) (16 U.S.C. 791a et seq.) completely preempts DWRs claims, which are within the exclusive jurisdiction of the Federal Energy Regulatory Commission (FERC).
Powerex contends that instead of relegating it to its remedy by appeal from the judgment after trial, Court should grant Powerexs petition for writ of mandate because it presents an important issue of subject matter jurisdiction and prevent a needless and expensive trial. For the reasons that follow, Court deny the petition.

Defendant, appeals his sentence, claiming the trial court erred when it imposed consecutive life terms without submitting the aggravating factors to a jury under Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856]. Court affirm the judgment.

Brian Steven McNeal was found incompetent to stand trial (Pen. Code,[1] 1368) on 12 felony counts involving residential burglary ( 459/460), grand theft ( 487, subd. (a)), and receiving stolen property ( 496, subd.(a)). The court ordered McNeal committed to Patton State Hospital for a maximum of three years.
McNeal appeals, contending the court had notice of his opposition to being found incompetent but then ignored the notice and erroneously assessed his mental health based on the opinion of one psychiatrist, rather than two, as required by section 1369, subdivision (a). Court affirm the judgment.

Ralph E. Briggs pleaded guilty to possessing an assault weapon (Pen. Code, 12280, subd. (b)) (count 2), and selling cocaine (Health & Saf. Code, 11352, subd. (a)) (count 3). He also admitted one strike ( 667, subds. (b) (i)). The court dismissed the strike as to count 2 only and sentenced him to six years eight months in prison: six years (one-third the lower term, doubled) for selling cocaine and eight months (one third the middle term) for possessing an assault weapon. Briggs appeals, contending the court abused its discretion by denying his motion to dismiss his strike as to count 3. Court affirm.

Fernando Loya Ortega entered a negotiated guilty plea to inflicting corporal injury on the mother of his children (Pen. Code, 273.5, subd. (a)) with infliction of great bodily injury ( 1192.7, subd. (c)(8)) and admitted a prior prison term ( 667.5, subd. (b)) and a strike ( 667, subds. (b)-(i), 668, 1170.12). The court sentenced him to prison for a stipulated term of six years (twice the middle term). Ortega appeals. Court affirm.

Amanda B. appeals the judgment reestablishing a conservatorship of her person under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst.Code, 5000 et seq.). Citing People v. Wende (1979) 25 Cal.3d 436 (Wende), Anders v. California (1967) 386 U.S. 738 (Anders), and In reConservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), her appointed counsel states he is unable to find any arguable appellate issues. He asks that Court independently review the record to determine whether there are any such issues.

Lisa E. appeals orders terminating her parental rights to her children, Patricia E. and Steven E., Jr. (Steven). She contends insufficient evidence was presented to support findings the children are adoptable, and her due process rights were violated because the San Diego County Health and Human Services Agency (the Agency) did not adequately facilitate sibling visitation. Court affirm the orders.

This petition involves minors G.S. (born in 2003) and his older half brother, N.A. (born in 1991). G.S. and N.A. first became the subject of referrals to the Riverside County Department of Public Social Services (department) in late 2003. Michelle S. (mother) had given birth to six children, but had custody of only three. She was living in a relatives garage without gas or electricity and she was on medication for bipolar disorder. Before being discharged from the hospital, following the birth of G.S., she had panic attacks and attempted to remove intravenous needles. She failed to make arrangements for needed follow up care for G.S., who was born prematurely. In this petition, mother contends that the court erred in denying her request because she had established that her circumstances had changed for the better and that the minors would be better off with her. The petition for writ of mandate is denied.

Appellant Victor Sanchez was convicted after jury trial of battery with injury on a peace officer, battery on a peace officer, two counts of resisting a peace officer and providing false information to a peace officer. The jury found true an enhancement allegation that appellant personally inflicted great bodily injury. The court found true a prior prison term enhancement allegation. (Pen. Code, 243, subd. (c)(2); 243, subd. (c); 148, subd. (a)(1); 148.9, subd. (a); 12022.7, subd. (a); 667.5, subd. (b).) Appellant was sentenced to an aggregate term of seven years imprisonment. He was ordered to pay direct victim restitution pursuant to section 1202.4 to the injured peace officer and to the peace officers employer, the Tulare County Sheriffs Department (Sheriffs Department).
Appellant also challenged imposition of direct victim restitution to the Sheriffs Department. This contention is meritorious; the Sheriffs Department is not a direct victim within the meaning of section 1202.4 and it is not entitled to restitution pursuant to this section. Court modify the judgment and, as modified, affirm.

Julie Ann W. and her brother, Danny, were removed from their parents custody in October 2006, and a dependency petition was filed on their behalf. A contested jurisdiction hearing was held over 21 court days, from November 17 to December 29, 2006. The children were adjudicated dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) (failure to protect). Before the disposition hearing was held, the attorney for the mother, Julie W., was granted leave to withdraw, and Arthur LaCilento was substituted in his place. The court indicated it would consider the testimony thats been given in the lengthy [jurisdiction] hearing in deciding disposition. And if there is a need for any additional testimony as to disposition, the court will hear it if its required.
Let a peremptory writ of mandate issue (1) directing the juvenile court to vacate its order denying the request for the reporters transcripts of the jurisdiction hearing and issue an order granting the request and (2) directing the juvenile court to continue the disposition hearing to a date that allows time for the preparation of the transcripts and their review by the mothers counsel. The temporary stay is dissolved. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)

Defendant Timothy Smith was convicted after jury trial of second degree robbery (Pen. Code, 211, 212.5, subd. (c)),[1]second degree burglary ( 459, 460, subd. (b)), and two counts of attempting to dissuade a victim or witness ( 136.1, subd. (b)(1)). Defendant admitted that he had six prior strikes ( 1170.12) and three prior serious felonies ( 667, subd. (a)), and that he had served three prior prison terms ( 667.5, subd. (b)). The trial court sentenced defendant to the indeterminate term of 50 years to life consecutive to the determinate term of 30 years. The court also ordered defendant to pay various fees and fines, including a restitution fine and a suspended parole revocation fine, each in the amount of $10,000. On appeal defendant contends that: (1) he was denied a fair trial when a prosecution witness testified that he was homeless; (2) he was deprived of due process as he was subjected to an impermissibly suggestive pre-trial identification procedure; (3) the judgment must be reversed due to the cumulative prejudice from the above errors; (4) the trial court erred by failing to stay under section 654 the term imposed on one of the dissuading-a-witness counts; and (5) the abstract of judgment must be modified to reflect the correct amount of the ordered restitution and parole revocation fines. Court order the abstract of judgment modified to conform to the ordered restitution and parole revocation fines, and affirm the judgment as so modified.

This partition action concerns the physical division of the Aurignac Ranch, a 9,518 acre cattle ranch in Monterey County collectively owned by nine family members with various ownership interests. The five appellants, who include Helen Aurignac, her daughter Jacqueline Traynor, and her grandchildren Jeffrey Dennis Traynor, Michael Paul Traynor and Gregory Michael Traynor, together own a 61.35 percent interest in the ranch. The remaining 38.65 percent is owned by the four respondents, Leslie Ann Cederquist and her children Paul Albert Aurignac, Paulette Ann Aurignac, and Patrick Eugene Aurignac. The trial court appointed Justice Nat A. Agliano (retired) as referee pursuant to the parties stipulation. After a trial and two inspections of the property, the referee ultimately issued a second revised report and recommended interlocutory judgment of partition. The report recommended a physical division of the property that the referee believed was consistent with the parties ownership interests, proportionate in economic value, and suitable for operating two separate cattle ranches. The trial court confirmed the referees report and recommendation and entered an interlocutory judgment of partition. Court affirm the interlocutory judgment of partition.