CA Unpub Decisions

After a jury trial, defendant was found guilty of first degree residential burglary. (Pen. Code 459.) The jury also found that during the commission of the burglary, another person, other than an accomplice, was present in the residence. ( 667.5, subd. (c)(21).) Defendant was sentenced to two years in state prison. On appeal, defendant contends his conviction for first degree burglary must be reversed because there is insufficient evidence to support a finding that the structure he entered was an inhabited dwelling, due to the evidence that the victim was in the process of moving out of the home at the time of the burglary. Court direct the superior court clerk to correct the abstract of judgment to reflect that a jury found defendant violated section 667.5, subdivision (c)(21). (Cal. Rules of Court, rule 8.155(c)(1).)

This is defendants second appeal in this matter. In his first appeal, case No. E033166, defendant appealed from his convictions for robbery (Pen. Code, 211)[1](count 1), unlawful taking and driving of a vehicle (Veh. Code, 10851, subd. (a)) (count 2), and evading a peace officer (Veh. Code, 2900.2, subd. (a)) (count 3) and from the true findings on the enhancement allegations that defendant was armed with a firearm during the commission of the robbery ( 12022, subd. (d)), that defendant had sustained two prior strike conviction ( 667, subds. (b)-(i), 1170.12, subd. (a)-(d)), and that defendant had suffered one prior prison term ( 667.5, subd. (b)). He claimed, inter alia, (1) the prosecutor committed misconduct, and (2) the trial court erred in failing to stay the terms imposed for counts 2 and 3 pursuant to section 654. In that appeal, we found that the terms imposed on counts 2 and 3 should have been stayed pursuant to section 654 and rejected the remaining contentions on appeal.
Court reject this contention and affirm the judgment.

Defendant and appellant Shauna D. (mother) is the mother of the minor Aleena S. Mother challenges the juvenile courts orders taking jurisdiction over Aleena pursuant to Welfare and Institutions Code section 358, denying reunification services to mother, and removing Aleena from mothers custody. Specifically, mother argues: 1) the Department of Public Social Services (DPSS) failed to provide proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.); 2) the courts findings under section 361.5, subdivision (b)(10) are not supported by substantial evidence and, in any case, the court abused its discretion when it denied reunification services to mother; and 3) substantial evidence does not support the removal order. As discussed below, Court order a conditional reversal to allow DPSS to comply with the ICWA notice requirements, but affirm in all other respects.

A jury found defendant guilty of one count of burglary (Pen. Code, 459)[1]and one count of using or passing a counterfeit bill ( 476). Defendant thereafter admitted that she had sustained two prior prison terms ( 667.5, subd. (b)). As a result, defendant was sentenced to a total term of four years in state prison. Defendants sole contention on appeal is that Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 220, which defines reasonable doubt, is erroneous because it does not define abiding conviction. Court reject this contention and affirm the judgment.

On July 11, 2006, the Riverside County District Attorney filed a Welfare and Institutions Code section 602 petition, charging minor with unlawful possession of marijuana for sale (Health & Saf. Code, 11359). On October 4, 2006, after a contested hearing, the juvenile court found the allegation true. The court also found minors legal residence to be in Los Angeles County and transferred the matter to Los Angeles County Superior Court for disposition. The court then placed minor in the custody of his father pending the transfer. Based on the above, Court find that the juvenile court properly denied minors motion to suppress evidence. The judgment is affirmed.

S.P. (minor) admitted committing second degree robbery in violation of Penal Code section 211. Minor was committed to the California Youth Authority (CYA) with a maximum confinement time of five years eight months, based on the instant offense and a prior wardship petition. On appeal, minor contends the juvenile court abused its discretion by committing him to CYA when less restrictive placements were available. The judgment is affirmed.

On December 6, 2006, the juvenile court denied mothers request for modification of a prior court order which denied mother family reunification services. Mother appeals, contending that the trial court erred in denying the motion under Welfare and Institutions Code section 388 because substantial evidence supported the motion. Finding no abuse of the juvenile courts discretion, Court affirm.

James J., Sr., (father) appeals from the juvenile courts decisions to deny his form JV 180 Request to Change Court Order filed under Welfare and Institutions Code section 388[1](section 388 petition) and to terminate his parental rights to his son James J., Jr., (James) at a hearing held under section 366.26. As discussed below, Court affirm the juvenile courts rulings.

On October 6, 2006, pursuant to Penal Code section 1192.7, defendant, represented by counsel, pled guilty to a violation of Vehicle Code section 23153(a) and admitted the special allegations filed pursuant to Penal Code sections 12022.7 and 667.5(b).

Thereafter, defendant was committed to state prison for six (6) years less custody credits and, in accordance with the negotiated disposition, the remaining counts and special allegations were dismissed and stricken on motion of the District Attorney and in the interests of justice pursuant to Penal Code section 1385.
Court have now concluded our independent review of the record and find no arguable issues. The judgment is affirmed.

Appellant Keith Dolorean Tannehill stands convicted, following a jury trial, of willfully discharging a firearm in a grossly negligent manner (Pen. Code, 246.3) and possessing marijuana for sale (Health & Saf. Code, 11359). In addition, appellant pled no contest to escape with pending felony charges (Pen. Code, 4532(b)(1)) after attempting escape before sentencing. Sentenced to six years four months in prison, he now appeals, asserting that insufficient evidence supports his conviction for willfully discharging a firearm in a grossly negligent manner. No other contentions are raised on appeal. For the following reasons, Court affirm.

Appellant Joel Casler was charged with forgery (Pen. Code, 470, subd. (d); count I),[1]perjury ( 118; count II), grand theft of an automobile ( 487, subd. (d)(1); count III), unlawful taking or driving of a vehicle (Veh. Code, 10851, subd. (a); count IV) and theft by false pretenses (532, subd. (a); count V). A jury convicted appellant of perjury but was unable to reach a verdict on the remaining counts. The court declared a mistrial as to those counts, and thereafter appellant pled guilty to misdemeanor unlawful taking or driving of a vehicle and the court dismissed the remaining charges. The court suspended imposition of sentence and placed appellant on five years probation, one of the conditions of which was that he serve four months in county jail. On appeal, appellants sole contention is that the evidence was insufficient to support his perjury conviction. Court affirm.

Before a magistrate concerning two felony complaints, defendant Gabriel David Garcia entered negotiated guilty pleas to possession of methamphetamine (two counts), assault with force likely to produce great bodily injury, and driving under the influence of methamphetamine. The trial court suspended imposition of sentence and placed defendant on three years probation with conditions. On appeal, defendant contends that (1) the judgment is void because the trial court had no subject matter jurisdiction for the reason that the magistrate failed to certify the case to the trial court (Pen. Code, 859a), (2) the trial court abused its discretion by imposing certain conditions of probation that do not bear a relationship to the crimes of which he was convicted or future criminality (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent)), and (3) the trial court erred by imposing certain conditions of probation that are constitutionality overbroad and vague (People v. Lopez (1998) 66 Cal.App.4th 615, 628 to 630 (Lopez)). Court affirm the judgment.

Diane B. appeals from an order entered after a post-permanency planning hearing that was held pursuant to Welfare and Institutions Code section 366.3. She contends that the juvenile court deprived her of due process by denying her request to appear telephonically. She also contends that the juvenile court deprived her of her constitutional rights to free speech and companionship of her son when it ordered that she could receive a note from her son Vincent on condition that she not publish the note on the Internet or otherwise copy or distribute it. Court find no error and affirm.

A jury convicted appellant Gary Videl Dillahunty of assault with a semiautomatic firearm and dissuading a witness by force or threat, and found that he had personally used a firearm in the commission of each offense. (Pen. Code, 245, subd. (b), 136.1, subd. (c)(1), 12022.5, subds. (a) & (d).)[1] The trial court sustained allegations that appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b), and sentenced him to prison for an aggregate term of 15 years.
Appellant contends: (1) the assault conviction must be reversed because it could have been based on two distinct acts and the jury was not given a unanimity instruction; (2) the court should have instructed the jury that merely pointing an unloaded firearm did not constitute an assault; (3) the jury instructions were deficient because they did not define a semiautomatic firearm; (4) the jury should have been instructed on assault with a firearm and brandishing a weapon as lesser included offenses of assault with a semiautomatic firearm; and (5) the court erroneously imposed a full consecutive sentence for dissuading a witness under section 1170.15. Court affirm.