CA Unpub Decisions

On October 16, 2006, the San Bernardino District Attorneys Office filed a petition pursuant to Welfare and Institutions Code section 602 charging minor in count 1 with a violation of Penal Code section 211, second degree robbery, a felony, and in count 2 with violating Penal Code section 459, second degree commercial burglary, a felony. A review of the entire record, including possible issues referred to by counsel pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue.
The judgment is affirmed.

Appellant Curtis Lee Malin contends his Sixth Amendment right to counsel was abridged when the trial court refused to allow him to discharge retained counsel. Court agree and reverse the conviction.

Jose B. appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26) to his daughter, Serenity B. He contends the court erred at the dispositional phase when it determined that the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; ICWA) did not apply to the proceedings. On review, Court affirm.

We are familiar with the backdrop against which the present controversy is set. The parties figuratively locked horns at their first encounter a meeting of the Greenbrook Fountain Valley Homeowners Association (HOA) many years ago, and thereafter became inextricably entangled in a clash over the meaning and application of the covenants, conditions, and restrictions (CC& Rs) governing what homeowners may and may not do with their property located within the 450-home development encompassed by the HOA. The court properly granted the anti SLAPP motions and denied attorney fees. Thus Court affirm the judgments of dismissal and the order denying fees.

Defendant Kerry Vinson was convicted after jury trial of battery by a prisoner on a non-prisoner (Pen. Code, 4501.5),[1] and misdemeanor destruction of evidence ( 135). The trial court sentenced defendant to four years in state prison. The court also granted defendant 362 days presentence custody credits and imposed a $20 court security fee. On appeal defendant contends that his constitutional rights to due process and a fair trial were violated when he was forced to proceed to trial in prison attire and physical restraints without a showing of a manifest need for such restraints. In a related argument defendant contends that his counsel rendered ineffective assistance by failing to object to the prison attire and physical restraints. Defendant also contends that counsel rendered ineffective assistance by failing to present a meaningful defense and by conceding the elements of the misdemeanor offense. In addition, defendant contends that the trial court improperly imposed a 362-day term for the misdemeanor, that a clerical error was made in the abstract of judgment regarding the ordered court security fee, and that he is entitled to additional presentence custody credits. The Attorney General concedes that a 362 day term for the misdemeanor is unauthorized and that the abstract of judgment must be corrected. We agree with these concessions, but find no other prejudicial error. Defendant has also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel, which Court ordered considered with the appeal. Court have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.264(b)(4).)

Defendant Wanda Jenette Fernandez appeals from a judgment of conviction entered after she pleaded no contest to petty theft with a prior conviction (Pen. Code, 666) and admitted that she served three prior prison terms ( 667.5, subd. (b)), and suffered a prior strike conviction ( 667, subd. (b)-(i), 1170.12). The trial court sentenced defendant to five years in state prison. Court reject defendants contention that the trial court erred in denying her motion to withdraw her admission of a prior strike conviction and affirm the judgment.

A jury convicted Richard Alan Troutman of robbery and assault with a deadly weapon. He appeals, contending (1) there was insufficient evidence that he took property from the victim's immediate presence as required to support a conviction for robbery, and (2) the court violated his Sixth Amendment right to a jury trial by imposing an upper term based on facts not found by the jury or admitted by him. We conclude the evidence was sufficient to show a taking from the victim's immediate presence, and the court's imposition of an upper term was not a denial of Troutman's constitutional right to a jury trial. Accordingly, Court affirm the judgment.

A jury convicted Raul Macias Garcia of making a terrorist threat (Pen. Code, 422; count one) and of intimidating a witness ( 140; count two). In a separate proceeding, the trial court found Garcia suffered a prior manslaughter conviction and a prior attempted robbery conviction. Both constituted strikes ( 667 subds. (b)-(i); 1170.12), as well as serious felonies ( 667.5, subd. (a)(1)), and the manslaughter prior resulted in a prison sentence ( 667.5, subd. (b)). The court sentenced him to a total of 35 years to life as follows: 25 years to life on count one; and two consecutive five year sentences for the serious felony priors. Pursuant to section 654, the court imposed but stayed a 25-year to life sentence on count two and a one-year consecutive term for the section 667.5, subd. (b) enhancement.
Garcia contends the trial court erroneously: (1) admitted evidence of his prior crimes; and (2) failed to instruct the jury that he must have intended the threat to be conveyed to the victim of the threat. He further contends the convictions were not supported by sufficient evidence. Court affirm as modified.

Robert Arthur Smith appeals a judgment arising out of his pleas of guilt to multiple drug-related offenses in two separate criminal proceedings (SCD192500 & SCD195612). He contends that the trial court erred in (1) denying his motion to suppress evidence seized by police during unlawful searches of his home and relied upon by the prosecution as the basis for the charges in SCD195612; and (2) imposing a consecutive sentence on one of the counts in SCD192500 in violation of Blakely v. Washington (2004) 542 U.S. 296. Court agree with Smith's first contention and reverse the judgment as to the counts charged in SCD195612 on that basis. In all other respects, Court affirm.

In January 2004, Licudine filed a personal injury action against Eucalia and Roy Gallegos, arising from a January 2002 automobile accident. The court notified Licudine that a case management conference was scheduled for June 29, 2004, and that Licudine must file a case management statement at least 15 days before the conference.
On June 29, Licudine's counsel failed to appear at the case management conference. On that date, the court issued an order to show cause why the case should not be dismissed for failure to appear at the case management conference, failure to file a case management statement, and failure to serve defendants. The court scheduled the order to show cause hearing for July 29, 2004. Order affirmed.

In this medical malpractice action, Kathleen Christie appeals a judgment of nonsuit entered against her on the ground she presented no expert evidence that William M. Flynn, M.D., breached the applicable standard of care. Christie contends the trial court improperly granted a defense motion in limine that precluded her from introducing the deposition testimony of one of her consulting physicians under Code of Civil Procedure[1]section 2025.620, subdivision (c)(1) on the ground he lived in Utah, more than 150 miles from court. Alternatively, she contends expert opinion was not required because the alleged malpractice was within the common knowledge of laypersons. Court affirm the judgment.

Rafael Padilla waived his right to a jury trial. In the court trial, he was convicted of attempted first degree murder (Pen. Code, 187, subd. (a), 189, 664) with personal firearm use ( 12022.5, subd. (a)), intentional and personal discharge of a firearm, proximately causing great bodily injury (GBI) ( 12022.53, subd. (d)), and personal infliction of GBI ( 12022.7, subd. (a)); robbery ( 211) with personal firearm use, intentional and personal discharge of a firearm, proximately causing GBI, and personal infliction of GBI; assault with a semiautomatic firearm ( 245, subd. (b)) with personal firearm use and personal infliction of GBI; burglary ( 459) with personal firearm use and personal infliction of GBI; conspiracy to commit robbery ( 182, subd. (a)(1)) with personal firearm use and personal infliction of GBI; unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)); possession of a firearm by a felon ( 12021, subd. (a)(1)); receiving a stolen vehicle ( 496d); possessing methamphetamine (Health & Saf. Code, 11377, subd. (a)); and unauthorized possession of a hypodermic syringe (Bus. & Prof. Code, 4140). The court found that he had served two prior prison terms ( 667.5, subd. (b), 668). He was sentenced to prison for life with possibility of parole plus 25 years to life plus six years 10 months for attempted first degree murder, life with possibility of parole plus 25 years to life for intentional and personal discharge of a firearm, proximately causing GBI; the three-year upper term for unlawful driving or taking of a vehicle; eight months each (one third the middle term) for possession of a firearm by a felon and possessing methamphetamine; six months for possessing a hypodermic syringe; and one year for each of the two prison priors. The court stayed sentence on the remaining counts and enhancements. Padilla appeals. Court affirm.

Manuel Soares appeals from a judgment convicting him of cohabitant corporal injury, residential burglary, vandalism, and attempted criminal threat. Soares challenges the residential burglary conviction, arguing that the trial court erred in refusing his request for a special instruction stating that a person cannot be convicted of burglarizing his or her own home. court reject this argument because there was no substantial evidence to support a theory that Soares had an unconditional possessory right to enter the home that he vandalized.

A jury convicted Raymond Newsom of selling, transporting, and possessing cocaine base for sale. (Health & Saf. Code, 11352, subd. (a), 11351.) In a bifurcated hearing, Newsom admitted three prior convictions of selling or transporting a controlled substance and three prior convictions of possessing a controlled substance for sale (Health & Saf. Code, 11370.2, subd. (a)), a strike (Pen. Code, 667 subds. (b)-(i), 1170.12, 668) and serving five prior prison terms (Pen. Code, 667.5, subd. (b), 668). The court denied a motion to dismiss the strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced him to prison for 17 years: double the four year middle term for selling cocaine base enhanced by three three-year terms for the prior drug convictions. The court stayed sentence on the remaining Health and Safety Code section 11370.2 findings and struck the prior prison term enhancements.