CA Unpub Decisions

A modification decision.

Defendant Eddie Rapoza appeals a judgment entered upon a jury verdict finding him guilty of one count of first degree murder and two counts of second degree murder, and finding true a multiple murder enhancement allegation. (Pen. Code, 187, subd. (a), 190.2, subd. (a)(3).) The trial court sentenced him to 25 years to life without the possibility of parole for the first degree murder, and two consecutive terms of 15 years to life for the second degree murders. Court affirm.

Following an administrative hearing, appellant Department of Motor Vehicles (the DMV) suspended respondent Jeffrey J. Arburns driving privileges for one year for driving a motor vehicle while under the influence of alcohol. (See Veh. Code, 13353.2, 13353.3, subd. (b)(2).) The superior court granted Arburns subsequent petition and issued a writ of mandate directing the DMV to set aside the suspension. On appeal, the DMV contends the superior court erred in reversing Arburns suspension on the grounds that the arresting officer did not have reasonable suspicion to stop Arburns vehicle. Court agree and reverse.

Defendant Eddie Eustice was convicted after jury trial of first degree burglary (Pen. Code, 459, 460, subd. (a)),[1]attempted first degree burglary ( 664, 459, 460, subd. (a)), and willful failure to appear in court while released on bail ( 1320.5). The trial court sentenced defendant to four years in state prison, the sentence consisting of the middle term of four years for the burglary count and concurrent terms of two years each on the remaining two counts.
On appeal defendant contends that the burglary conviction must be reversed due to prejudicial instructional error. He further contends that the failure to appear conviction must be reversed for various reasons, including due to the insufficiency of the evidence to support it. The Attorney General concedes that the failure to appear conviction must be reversed due to the insufficiency of evidence, and that defendant cannot be retried on that count, and Court agree with the concession. However, Court find no prejudicial instructional error. Accordingly, Court reverse the failure to appear conviction, modify the judgment by striking the concurrent sentence imposed for that conviction, and affirm the judgment as so modified.

Defendant Johnny A. Martinez was convicted after jury trial of first degree murder (Pen. Code, 187).[1] The jury further found that the murder was intentional and involved the infliction of torture ( 190.2, subd. (a)(18)), and that defendant personally used a deadly or dangerous weapon, a knife, in the commission of the offense ( 12022, subd. (b)(1)). The trial court found that defendant had five prior strikes ( 1170.12). The court sentenced defendant to the indeterminate term of life without the possibility of parole consecutive to the determinate term of one year.

On appeal defendant contends that (1) the court prejudicially erred in giving CALJIC No. 5.54 (2004 re-revision); (2) the court prejudicially erred in giving incomplete instructions on imperfect self-defense; (3) the court prejudicially erred in failing to give CALJIC No. 8.73 sua sponte; (4) there was insufficient evidence to support the finding that the murder involved the infliction of torture; and (5) the court prejudicially erred in failing to instruct sua sponte on the relationship of provocation to the mental state necessary for the finding that the murder involved torture. As Court find no error requiring reversal, Court affirm the judgment.

Joylin J. appeals from the termination of parental rights to her child, Evelyn. She claims the juvenile court should have found adoption is not in the childs best interest because of the benefit Evelyn derives from her relationship with her mother and caregiver. Court find no error and affirm.

Plaintiff Rima Jones appeals after the trial court sustained defendant Hertz Corporations demurrer to her first amended complaint without leave to amend. Plaintiff contends she has properly alleged a cause of action concerning Hertzs improper actions to collect a debt. Finding no basis to disturb the judgment, Court affirm.

In this probate case, Eric Williams Towle, the biological son of the decedent, Homer Eugene Williams, appeals from orders admitting to probate a holographic will offered by the decedents stepdaughter, Deborah Ann Cox, and appointing Cox executor. Appellants principal argument is that the document is not a valid holographic will under Probate Code section 6111 because it is not signed by the decedent. Appellant also argues that the document is not a valid because it does not completely dispose of the decedents assets and because it lacks language demonstrating testamentary intent. Our review of the law regarding holographic wills and the evidence in this case supports the trial courts finding that the document admitted to probate is a valid holographic will. Court therefore affirm the orders.

IMC Chemical, Inc. (IMC) petitions for a writ of review (Lab. Code,[1] 5950; Cal. Rules of Court, rule 8.494) contending the Workers Compensation Appeals Board (WCAB) violated its duty (a) to rely on medical evidence supported by substantial evidence, (b) to rely on expert testimony or opinion, and (c) to render an opinion based on substantial evidence and not speculation and surmise when it concluded respondent Steven L. Smiths alleged chemical-exposure injuries were industrially related. Although vigorously presented to this court as distinct issues, IMCs arguments simply assert substantial evidence which fails to support the WCABs finding that Smith sustained injuries arising out of and in the course of his employment with IMC. Court deny
the petition and remand the matter to the WCAB to award supplemental attorney fees.

On November 19, 2004, the Kings County District Attorney filed an information in superior court charging appellant as follows:
Count Iunlawful transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a));
Count IIpossession of methamphetamine (Health & Saf. Code, 11377, subd. (a));
Count IIIbeing under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, 11550, subd. (a));
Count IVmisdemeanor resisting a peace officer (Pen. Code, 148, subd. (a)(1)); and
Count Vmisdemeanor possession of narcotics paraphernalia (Health & Saf. Code, 11364).
The judgment is affirmed.

Ignacio R. appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26) to his young daughter and son. He challenges the superior courts finding that it was likely the children would be adopted. On review, Court affirm.

Diane S. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her young daughter and son. Appellant contends the court violated her due process rights at an earlier stage of the proceedings when it appointed a guardian ad litem on her behalf. On review, court affirm. Court conclude there was no due process error. Alternatively, assuming arguendo the court did err, the error was harmless beyond a reasonable doubt.

Appellant, Anthony Dale Lane, was charged by a criminal complaint with feloniously inflicting corporal injury to a spouse or cohabitant (Pen. Code, 273.5).
On April 7, 2006, a felony complaint was filed alleging that appellant violated section 273.5, subdivision (a). On August 2, 2006, the time set for a preliminary hearing was vacated and the complaint was amended to allege a misdemeanor violation of section 273.5, subdivision (a). On August 30, 2006, appellant entered into a nolo contendere plea to a misdemeanor violation of section 415. This action was not certified to superior court pursuant to section 859a. No information or indictment was filed in this matter. On September 20, 2006, appellant filed a timely notice of appeal. The trial court denied appellants request for a certificate of probable cause. This appeal is transferred to the appellate division of the Tulare County Superior Court. (Gov. Code, 68915.)

Appellant P.P.s daughter, T.P., was 19 months old when she was adjudged a dependent child in 1998, based upon appellants inability to care for her and physical abuse inflicted by her maternal grandmother. The juvenile court appointed a guardian ad litem to represent appellant because of her chronic mental illness. After a lengthy reunification period, the court terminated the mothers reunification services in 2002, and approved a case plan for T.P.s long term foster care. The instant case involves appellants challenge to the courts orders after an August 2006 post permanency review hearing, where the court ordered T.P. to remain in long term foster care. Appellant asserts that neither her appointed counsel nor her guardian ad litem represented her interests, her guardian ad litem improperly appeared on behalf of her attorney at that hearing, and her attorney was prejudicially ineffective for failing to appear and seek visitation and/or custody. Court affirm.