CA Unpub Decisions

V.F. appeals from an order denying his motion to set aside a paternity judgment based on a DNA test which purportedly excluded him as the biological father of Lily F. The trial court ruled that the motion was untimely. (Fam. Code, 7646, subd. (a)(2).) Court affirm. (County of Fresno v Sanchez (2005) 135 Cal.App.4th 15, 19-20.)

A modification decision.

Felix G. appeals from the order sustaining the petition which alleged that he

dissuaded a witness from reporting a crime and committed an assault with a deadly weapon (Pen. Code, 136.1, subd. (b)(1), 245, subd. (a)(1))[1]; committed both crimes for the benefit of a criminal street gang ( 186.22, subd. (b)(1)); and personally inflicted great bodily injury on the assault victim ( 12022.7; Welf. & Inst. Code, 602). The court committed appellant to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, with a maximum confinement term of 17 years 8 months. Appellant contends the court erred by admitting gang affiliation evidence, sustaining the petition without sufficient evidence, and setting the maximum commitment term. Court affirm.

Oscar Navarro appeals from his conviction of two counts of first degree murder with special circumstances and one count of attempted murder. He argues that the trial court abused its discretion in allowing testimony from a gang expert regarding the mental state of a gang member in the appellants position, and in telling the jury that it was perceptive in finding an issue raised by the evidence. Appellant also challenges imposition of additional terms for use of a firearm and the decision to stay lesser firearm enhancements. Finally, he argues that a parole revocation fine was improperly imposed. Court conclude that the parole revocation fine must be stricken; in all other respects, Court affirm.

Roderick Barber was charged and convicted by a jury of first degree murder. (Pen. Code, 187, subd. (a), 189.) Allegations that he personally used and personally and intentionally discharged a firearm in the commission of murder ( 12022.53, subds. (b), (c) & (d)), had a prior conviction for a serious felony ( 667, subd. (a)), and had a prior strike ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) were found true.
Barber was sentenced to 105 years to life as follows: 25 years to life for the murder, plus 25 years to life for the gun use enhancement, both doubled as a result of the prior strike conviction, plus five years for the prior serious felony conviction.
Barber contends the trial court erred in its instructions to the jury, including failing to instruct on corroboration of accomplice testimony; admitting an audiotape of a witness's interview with police; and doubling his sentence for the gun use enhancement. Though we conclude that the court erred in failing to instruct on accomplice testimony, the error was not prejudicial. Therefore, Court affirm with instructions to the trial court to correct the sentencing error.

Bonifacio Bracamontes appeals the judgment entered after a jury convicted him on two counts of spousal abuse (Pen. Code, 273.5, subd. (a)). He admitted that he had a prior strike conviction ( 1170.12) and had served a prior prison term ( 667.5, subd. (b)). He was sentenced to seven years in state prison. He contends that his due process rights were violated by the admission of bad character evidence (Evid. Code, 1101, 1102) and by the victim's statement that defense counsel was a "frickin' bottom feeder." Court affirm.

Mark George Vasquez was convicted of unlawful driving of a vehicle, evading a police officer and nine counts of assault with a deadly weapon. Substantial evidence supports the jury finding that the injury to a police officer was the natural and probable consequence of Vasquezs efforts to flee from the police. Vasquez shows no prejudicial error in the admission of evidence of letters in which he described the urban assault vehicle he used to evade the police chase. Court affirm the judgment.

Appellant David A. Gerber and respondent Gary C. Colegrove are attorneys. Gerber filed a breach of contract action on behalf of his client. Colegrove, representing the opposing party, filed a cross-complaint and named Gerber as a co-defendant. Colegrove subsequently dismissed the cross-complaint against Gerber, and Gerber filed an action against Colegrove for malicious prosecution. Colegrove responded by filing a special motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. Colegrove argued that the malicious prosecution action was an attempt to abridge his right of free speech. Court reverse Colegrove's award of attorneys fees, but otherwise affirm.

Jonathan Lee Kladden appeals the judgment entered following his conviction by jury of extortion, making a criminal threat and resisting a peace officer, a misdemeanor. (Pen. Code, 520, 422, 148, (a)(1).) Kladden admitted a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Kladden to a prison term of five years and eight months. Court reject Kladdens claims of sentencing error and affirm the judgment.

Raymond G. Fortner, County Counsel and Jacklyn K. Louie, Deputy County Counsel for Plaintiff and Respondent. Denise C. appeals from the order of the juvenile court denying her reunification services with her son, L.F. Appellant claims the Department of Children and Family Services (DCFS) failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. 1901 et seq. (ICWA)). DCFS concedes the inadequacy of its notice, and Court remand for compliance.

Darrell Dean Penniman (Penniman) appeals the judgment entered following a jury trial which resulted in his conviction of second degree burglary (Pen. Code, 459)[1]and petty theft with a prior ( 666),[2]and the trial courts finding he had served prison terms for four prior felony convictions ( 667.5, subd. (b)). The trial court sentenced Penniman to seven years in prison.
Penniman contends the trial court violated his constitutional right to due process of law when, without the jury having found the factors in aggravation true beyond a reasonable doubt, the court imposed the upper term of three years in prison for his conviction of second degree burglary. Court affirm the judgment.

jury convicted Francisco Venegas of attempting to burn the property of a gas station by setting fire to an underground gasoline storage tank and a gasoline pump. (Pen. Code, 455.) He contends that his conviction should be reversed because the evidence was insufficient to prove beyond a reasonable doubt that he intended to set fire to the tank or the pump or that he had the ability to do so. He further contends that the prosecutor committed prejudicial misconduct during closing argument when she attempted to testify about a conversation that she had with her expert witness. Court reject Venegass contentions and affirm the judgment.

The trial court awarded plaintiff Helen Moore Powell a $60,374.50 default judgment. Defendant Louie Esquibel appeals from the trial courts order denying his second motion to set aside the default and default judgment. Because Esquibels motion was not timely filed, Court affirm the trial courts order.

Defendant appeals a judgment awarding treble damages for maliciously removing and trimming oak trees on her neighbor's property. The trees were within a roadway easement, but were not interfering with defendant's use of the easement. Court affirm.