CA Unpub Decisions

Appellant Rigoberto Salido appeals his conviction by jury of three counts of second degree robbery. (Pen. Code, 211.)[1] The trial court sentenced him to seven years in state prison. Salido contends that the trial court violated his constitutional rights by admitting statements Salido made to law enforcement officers (Miranda v. Arizona (1966) 384 U.S. 436), by admitting a statement that Salido's co-defendant made to officers (Crawford v. Washington (2004) 541 U.S. 36), and by imposing an upper term on count three based on aggravating facts not found by the jury. (Cunningham v. California(2007) U.S. [127 S.Ct. 856].) Court conclude that the court erred by imposing only one $20 court security pursuant to section 1465.8. Court otherwise affirm.

A modification decision.

Appellants Ray A. Young and Raynetta Green, brother and sister, were convicted by jury for crimes that they committed in the course of a home invasion robbery on August 24, 2004. The jury convicted Young of one count first degree home invasion robbery with personal use of a firearm (Pen. Code, 211, 213, subd. (a)(1)(A), 12022.53, subd. (b)), one count first degree burglary with personal use of a firearm ( 459, 12022, subd. (a)(1)), one count false imprisonment by violence ( 236), one count carjacking ( 215, subd. (a)), one count assault with a firearm ( 245, subd. (a)(2)), and one count assault with a deadly weapon other than a firearm ( 245, subd. (a)(1)).
Young contends that the prosecutor committed misconduct and error under Griffin v. California (1965) 380 U.S. 609, and that the trial court abused its discretion by denying his motion to strike his prior serious felony conviction. Green contends it was error to instruct jurors that they could infer consciousness of guilt from her willfully false pretrial statement (CALJIC 2.03). She also contends that there was insufficient evidence to sustain her conviction for assault with a firearm. Court reject each contention and affirm the judgments against both Young and Green.

Larraine McBride appeals from a judgment denying her petition to admit to probate an unsigned copy of a will of her mother, Electra Odille McBride (hereafter the decedent), and granting the petition of her brother, Harry McBride, respondent, for letters of administration. Appellant contends that the trial court erroneously concluded that the decedent had revoked her will. Court agree and reverse.

Shelly Lynne Marinello appeals from the judgment entered following her conviction by a jury of possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)) and being under the influence of a controlled substance. (Id., 11550, subd. (a).) The trial court suspended the imposition of sentence and placed her on probation for three years. Appellant contends that a search warrant for her residence should have been quashed, but trial counsel was ineffective because he failed to preserve the issue for appellate review. Court disagree and affirm.

Hugo Angel Chavez appeals from the judgment entered following a jury trial that resulted in his conviction of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) and the attempted destruction of evidence. (Pen. Code, 135.) The trial court suspended the imposition of sentence and placed appellant on probation. One of the conditions of probation was that he serve 240 days in county jail.

Appellant contends that the trial court erroneously failed to instruct the jury sua sponte that he could not be convicted of transporting methamphetamine if he had momentarily possessed it for the purpose of throwing it away. Appellant also contends that the trial court erroneously failed to give sua sponte a unanimity instruction requiring the jury to agree on one act as the basis for the transporting offense. Court affirm.

Olga Gonzalez appeals an order interpreting the 1979 final judgment of dissolution regarding her marriage with Juan Gonzalez. Court conclude that the parties and the family law court intended that Olga receive only a community property interest in Juan's retirement pension based upon the duration of their marriage, and affirm.

A modification decision.

Leticia Y. appeals from an order terminating parental rights to her children, Rita and Jacob Y., and establishing adoption as the permanent plan. (Welf. & Inst. Code, 366.26.) Appellant claims that the parental relationship exception to adoption ( 366.26, subd. (c)(1)(A)) precludes termination of her parental rights. Court affirm.

Defendant and appellant Ofelia L. (mother) is the mother of minor Brenda L. (Brenda). Approximately 18 months after the juvenile court detained Brenda and placed her in foster care based on allegations that mothers boyfriend physically abused both mother and Brenda, mother successfully completed her case plan and obtained a home of parent custody order. The Los Angeles County Department of Children and Family Services (DCFS), however, almost immediately filed a Welfare and Institutions Code section 387 supplemental petition seeking to terminate the home of parent order and retain Brenda in foster care on the grounds that mother was homeless and could not provide Brenda with the necessities of life. The juvenile court sustained the section 387 supplemental petition, terminated the home-of-parent order, and set a section 366.26 permanent plan hearing. At the subsequent permanent plan hearings, the juvenile court denied mothers requests for an Evidence Code section 730 bonding study, denied mothers section 388 petition based on the assertion she was no longer homeless, terminated mothers parental rights, and freed Brenda for adoption.
On appeal, mother challenges the juvenile courts orders relating to DCFSs section 387 supplemental petition, including the courts denial of her request for a continuance of the section 387 dispositional hearing, contending those prior orders are reviewable on an appeal from a subsequent order terminating parental rights. Mother also asserts claims based on DCFSs restriction of her visitation rights and ineffective assistance of counsel. She further challenges the juvenile courts orders denying a bonding study, denying her section 388 petition, and terminating her parental rights. Mothers basic contention is that Brenda was taken from her solely because mother is poor and homeless.
Court hold that mothers challenges to the orders relating to DCFSs section 387 supplemental petition are outside the scope of her notice of appeal, and therefore not subject to review on this appeal. Court further hold that mother forfeited her contentions based on the restriction of her visitation rights by not raising that issue in the juvenile court, and that her claim of ineffective assistance of counsel is not cognizable on direct appeal. Finally, Court hold that the juvenile court did not abuse its discretion in denying mothers requests for a bonding study and her section 388 petition, and that there is substantial evidence supporting the courts finding that mother failed to establish the section 366.26, subdivision (c)(1)(A) exception to the termination of her parental rights. Based on the applicable standards of review, the record, and our appellate jurisdiction, Court affirm the orders of the juvenile court from which mother appeals.

Where a motion to quash a subpoena is reasonably made, must the superior court consider the motion on its merits. Court conclude that it must.

Defendant Augustine Equihua appeals a no-contact order imposed as a condition of his six year prison sentence following a conviction of one count of forcible rape. (Pen. Code, 261, subd. (a)(2).) Equihua contends the no contact order violates his right to due process because the order was unauthorized and exceeded the jurisdiction of the trial court.
The no contact order is stricken and the judgment is otherwise affirmed.

TACHS Property Development (TACHS) sued civil engineer Sydney Xinos for professional negligence in connection with a residential development project known as Reese Village. TACHS alleged Xinos was negligent in preparing grading and drainage plans, and in providing services relating to an off-site improvement plan and a land survey. Xinos represented himself at trial. On a general verdict, the jury found TACHS proved its negligence claim and that TACHS's damages were $80,567. Based on the jury's finding that Xinos was 83.5 percent responsible for these damages, the court entered a judgment against Xinos for $67,273.45 plus costs.
Xinos appeals, contending: (1) the court erred in failing to instruct the jury that Xinos had no duty of care to TACHS with respect to a 1998 grading and drainage plan; and (2) the court erred in refusing to permit him to testify as an expert. Court reject these contentions and affirm.

Maria B. appeals orders terminating her parental rights to her children, Z.B. (Z.) and R.B., Jr. (R.), and an order denying her Welfare and Institutions Code section 388 petition. She contends substantial evidence does not support a finding the children are clearly adoptable, and the court erred by not applying the exceptions to adoption of section 366.26, subdivisions (c)(1)(A) and (c)(1)(D) and by not granting her request to continue the hearing on her section 388 petition. Court affirm.