CA Unpub Decisions

Appellant and defendant Ismael Vences pled guilty to unlawfully taking or driving a vehicle under Vehicle Code section 10851, subdivision (a). The trial court sentenced defendant to 180 days in jail, and placed him on three years felony probation. On appeal, defendant contends that one of the probation conditions is invalid and unconstitutional. Court agree.

A jury convicted defendant of willful cruelty to animals (Pen. Code, 597, subd. (a)) (count 1), with personal use of a handgun ( 1192.7, subd. (c)(8), 12022.5, subd. (a)). The jury also found defendant guilty of being a felon in possession of a firearm ( 12021, subd. (a)(1)) (count 2). Defendant thereafter admitted that he had suffered two prior prison terms (667.5, subd. (b)) and one prior strike conviction ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) He was sentenced to a total term of 18 years in state prison: the upper term of three years on count 1, doubled to six years for the prior strike allegation, plus a consecutive upper term of 10 years for the gun use enhancement, plus two consecutive one year terms for the two prior prison term enhancements, and a concurrent term of one year four months on count 2.
On appeal, defendant contends (1) the trial court relied on improper factors in aggravation to impose the upper term on count 1 and the gun-use enhancement; (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 1 and the upper term on the gun-use enhancement; and (3) the trial court erred in failing to give defendants requested jury instruction regarding the prosecutions failure to disclose specific testimony of witness Sandra Nunez. In light of the United States Supreme Courts recent decision in Cunningham v. California (2007) U .S. [127 S.Ct. 856] (Cunningham), Court conclude the courts imposition of the three year upper term sentence on count 1 based on judicial factfinding denied defendant of his federal constitutional rights to a jury trial and proof beyond a reasonable doubt, and thus the matter must be remanded for resentencing.

In an information filed October 7, 2005, Gabriel Flores (defendant) was charged in Riverside County with one felony count of willfully and unlawfully possessing methamphetamine for sale, in violation of Health and Safety Code section 11378, and one felony count of willfully and unlawfully threatening to commit a crime which would result in death or great bodily injury to a person in violation of Penal Code section 422.
On January 10, 2006, the jury found defendant guilty of violating section 11378, but deadlocked on the Penal Code section 422 charge. As a result of the guilty verdict, defendant admitted to violating the terms of his probation. The court sentenced defendant to a total of five years in state prison, two years for violating section 11378, and three years for a prior conviction pursuant to section 11370.2, subdivision (c). For violating probation, the court sentenced defendant to three more years in state prison, to run concurrently to the five year term.
Defendant appeals, contending the trial court violated his Fifth and Fourteenth Amendment rights under the United States Constitution by not excluding at trial statements made to the police, because defendant was subjected to custodial interrogation without being advised of his Miranda rights.
The judgment is affirmed.

A modification decision.

Plaintiff Amanda Laabs was injured in an automobile collision. She sued various parties, including the County of San Bernardino (the County). As against the County, she alleged that her injuries were caused by a dangerous condition of public property. The County moved for summary judgment, which the trial court granted. Court affirm.

On May 6, 2005, defendants led sheriffs deputies and California Highway Patrol (CHP) officers on a high speed chase in two stolen vehicles, a Chevy Avalanche and a Dodge pickup truck. The chase spanned four Southern California counties from the Palmdale area to Fallbrook. Defendant Jesus Ruiz Santacruz was the driver of both vehicles; defendant Ignacio Erudiel Nieblas was the only passenger.
Santacruz was sentenced to 17 years 4 months in prison. Nieblas admitted a prison prior, and received a sentence of 18 years 8 months. Defendants appeal, and Nieblas joins Santacruzs contentions. We consider each defendants contentions to the extent they may benefit the other defendant. Court remand the matter for resentencing in light of Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). In all other respects, Court affirm the judgments.

Prior to trial, defendant admitted that he had suffered a prior conviction of spousal abuse within the meaning of Penal Code section 273.5, subdivision (e)[1]and that he had suffered a prior strike conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). A jury thereafter found defendant guilty of corporal injury to a spouse. ( 273.5, subd. (a).) The jury also found true that defendant had personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). As a result, defendant was sentenced to a total term of 13 years in state prison as follows: the upper term of five years on the substantive count, doubled due to the prior strike, plus three years consecutive on the great bodily injury enhancement.

In his appeal, defendant contends (1) his counsel was ineffective for failing to object to the imposition of the upper term, and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term. In his petition for writ of habeas corpus, defendant claims his counsel was ineffective for allegedly refusing to allow him to testify at his trial.
Court deny defendants writ of habeas corpus petition; however, Court agree, as Court must, that defendants upper term sentence runs afoul of Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham).

On July 12, 2006, Imperial County Department of Social Services (Department) filed juvenile dependency petitions on behalf of 20-month-old Edgar and his two older siblings. The Department alleged the children suffered, or were at a substantial risk of suffering, serious physical harm (Welf. & Inst. Code,[1] 300, subd. (a)) based on a report from a medical professional that Edgar had a cigarette burn on his chest that was not necessarily consistent with the explanation given by his mother (Lorena). The Department also alleged failure to protect (300, subd. (b)) based on Lorena's admissions to the social worker that (1) Edgar came into contact with her lighted cigarette, (2) Lorena had been using methamphetamine on a regular basis from the time Edgar was born, (3) Lorena had begun smoking the drug the past few months, and the smoking caused her to become seriously addicted and affected her ability to supervise and protect the children, and (4) Edgar had not received any of his immunizations. The petition also alleged the children were suffering, or were at a substantial risk of suffering, serious emotional damage (300, subd. (c)). A writ issued directing the superior court to vacate its orders of March 21, 2007, and April 3, 2007, setting the joint hearing and denying reconsideration. The stay issued by this court on April 5, 2007 is vacated.

D.B. appeals the findings and orders made at a jurisdictional hearing on a supplemental Welfare and Institutions Code section 387 petition an appeal authorized by Welfare and Institutions Code section 395. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
D.B.'s counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied. The appeal is dismissed.

A jury found defendant and appellant Prentice Jones guilty of second degree robbery (Pen. Code, 211)[1]and attempted second degree robbery ( 664/211). The jury also found true the allegation that defendant personally used a firearm. ( 12022.53, subd. (b).) In a bifurcated court trial, defendant admitted being on bail at the time of the offenses ( 12022.1) and having a strike conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant to a 20 year term in state prison.
On appeal, defendant contends that: 1) there was insufficient evidence to support the second degree robbery conviction; 2) the trial court failed to exercise its discretion under Evidence Code section 352; and 3) the abstract of judgment should be corrected to reflect that he was convicted of one count of robbery and one count of attempted robbery, rather than two robberies. The People concede that the abstract of judgment should be corrected. Otherwise, the judgment is affirmed.

Emily H. appeals the findings and orders entered at the jurisdictional and dispositional hearing, which is reviewable under Welfare and Institutions Code section 395. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error. Emily H.'s counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied. The appeal is dismissed.

.L. (Z.) appeals a judgment terminating her parental rights to her minor sons, Angel T. and Andrew L. (minors), under Welfare and Institutions Code section 366.26. She contends the court erred by denying her section 388 petition for modification seeking to have the minors returned to her custody. Z. also challenges the sufficiency of the evidence to support the court's findings that the beneficial parent child relationship exception did not apply to preclude terminating parental rights under section 366.26, subdivision (c)(1)(A). E.R. (E.), Angel's father, also appeals and joins in Z.'s arguments concerning Angel. Court affirm the judgment.

Kathleen and William P., a maternal aunt and uncle of H.G., appeal the summary denial of their petition for modification under Welfare and Institution Code section 388. court dismiss the appeal as moot.

A jury convicted appellant of conspiracy to commit the crime of possession of methamphetamine for sale, possession of methamphetamine for sale, and sale of methamphetamine. (Pen. Code, 182, Health & Saf. Code, 11378, 11379.) The jury made a special finding that the object of the conspiracy was to furnish methamphetamine to Steve Rochester. The parties stipulated that, for purposes of a weight enhancement, the amount of methamphetamine involved exceeded one kilo. (Health & Saf. Code, 11370.4, subd. (b)(1).) Following a court trial, the court found true allegations that appellant had two prison prior convictions and three prior narcotics convictions. (Pen. Code, 667.5, Health & Saf. Code, 11370.2, subd. (c).) The court found not true allegations that appellant had two prior serious or violent felonies. (Pen. Code, 667, subds. (b)-(i).) The court sentenced appellant to a state prison term of 11 years, eight months.
Appellant contends that the trial court erred in imposing a consecutive sentence for the conspiracy count, in imposing a concurrent sentence, rather than a stayed sentence, on the possession for sale count, and in calculating the restitution fine. Court modify the judgment.