CA Unpub Decisions

Mother, father and the siblings (James and Stacey) appeal from an order of the juvenile court terminating parental rights for Tiffany and B. following hearings under Welfare and Institutions Code section 366.26.[1] Collectively, appellants contend there was no substantial evidence to support the juvenile courts finding that the parental relationship exception of subdivision (c)(1)(A), the child veto exception of subdivision (c)(1)(B) and the sibling relationship exception of subdivision (c)(1)(E) did not apply to the facts of this case. Mother separately argues that if a child over 12 is ambivalent about being adopted, the court must find that the child is presently not adoptable and refuse to terminate parental rights. Finding no error, Court affirm.

A three-count petition alleged that 15-year-old Giovanny S. shot at an inhabited dwelling, shot at an unoccupied vehicle, discharged a firearm with gross negligence, and (as to all counts) personally used a firearm. (Welf. & Inst. Code, 602; Pen. Code, 246, 247, subd. (b), 246.3, 12022.5, subd. (a).) Following an adjudication hearing at which one witness testified that she saw Giovanny firing shots at a certain intersection at 2 p.m. one day, then get into a white Honda Civic (registered to a person living at Giovannys residence), and another witness testified that at 5:30 p.m. the same day and near the same intersection, she heard shots and saw Giovanny with a gun in his hand getting into the same car. The juvenile court sustained the allegation that Giovanny had discharged a firearm with gross negligence (a felony), and found true the allegation that he personally used a firearm. Giovanny was declared a ward of the court and ordered into a six-month camp program with the period of confinement not to exceed 13 years.
Based on our independent examination of the record, we are satisfied that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25 Cal.3d 436.)
The order is affirmed.

Appellant Rebecca K. (mother) appeals from a juvenile court order terminating her parental rights to Amber K. (Amber) (born Nov. 2003). She contends that the juvenile court erred in (1) denying her Welfare and Institutions Code section 388 petition, and (2) declining to apply the contact and benefit exception to preclude Ambers adoption (section 366.26, subd. (c)(1)(A)).
Court affirm.

A mother appeals an order terminating her parental rights over her eight-month-old son, whom she had not seen or visited since he was detained from her care two days after birth. Mother has not shown that the juvenile court erroneously ordered that no reunification services be provided, and her attempt to appeal that order is untimely. In a Welfare and Institutions Code section 366.26 hearing, the issues are whether the child is adoptable and whether there is a statutory exception to adoption. Mother has not met her burden as to either issue. Court therefore affirm the order terminating parental rights.

jury convicted defendant Jedison Orlando Gear of attempted voluntary manslaughter of William Hardman (Pen. Code, 192, 664; count one)[1]as a lesser included offense of attempted murder ( 187, subd. (a), 664), assault with a semiautomatic firearm of Hardman ( 245, subd. (b); count two), attempted murder of Surinder Singh ( 187, subd. (a), 664; count three), assault with a semiautomatic firearm of Singh ( 245, subd. (b); count four), and second degree robbery of Singh ( 211, 212.5, subd. (c); count five). The jury found that defendant personally used a firearm ( 12022.5, subd. (a)) in the commission of counts one, two and four; personally inflicted great bodily injury on Hardman ( 12022.7, subd. (b)) in the commission of counts one and two; and personally used, and intentionally and personally discharged, a firearm causing great bodily injury of Singh ( 12022.53, subds. (b)-(d)) in the commission of counts three and five. Defendant was sentenced to state prison for a determinate term of 14 years (nine years on count three, plus two years on count two, plus three years on count twos enhancements), plus a consecutive indeterminate term of 25 years to life for the firearm enhancements on count three.
On appeal, defendant contends there was insufficient evidence of his identity as the perpetrator of the offenses against Singh. Court affirm the judgment.

Defendant David Dale Hutt pled no contest to a single count of felony failure to appear while released from custody on his own recognizance (OR) (Pen. Code, 1320, subd. (b); undesignated section references are to the Penal Code) in exchange for no immediate state prison (NISP) and dismissal of a related charge. The court released defendant on his own recognizance pending sentencing pursuant to a stipulation that the NISP agreement would be forfeited in the event defendant failed to abide by the terms and conditions of that agreement.
Prior to sentencing, defendant was arrested on two separate occasions and charged with crimes in both instances. At sentencing, he admitted that the arrests violated his NISP agreement, and acknowledged that he was no longer subject to the NISP promise in exchange for dismissal of several other matters pending against him and referral of the matter back to probation.
After denial of defendants Marsden[1]motion and motion to withdraw his plea, the court found defendant unsuitable for probation and sentenced him to the low term of 16 months in state prison.
On appeal, defendant contends his purported waiver of the NISP agreement was invalid, requiring remand to either enforce the agreement or allow him to withdraw his plea. He further contends that any purported waiver of the NISP agreement was the result of ineffective assistance of counsel. Court affirm.

Defendant Dwayne Collins Tilson pleaded no contest to transporting methamphetamine (Health & Saf. Code, 11379, subd. (a)) and reckless driving (Veh. Code, 23103, 23103.5).
The trial court sentenced him to the upper term of four years in prison. On appeal, defendant contends the trial court did not have the authority to order him to register as a narcotics offender pursuant to Health and Safety Code section 11590. Court agree and modify the judgment accordingly.

A jury found defendant Jeffrey Alan Fralick guilty of five counts of lewd acts on a child under the age of 14 in violation of Penal Code section 288, subdivision (a), and found true the allegation that three of the counts involved substantial sexual contact. ( 1203.066, subd. (a)(8).) The trial court sentenced him to an aggregate term of 14 years in state prison.
On appeal, defendant contends that (1) his rights under the Fifth and Fourteenth Amendments were violated when police induced him to confess through deception and promises of leniency, (2) trial counsels failure to move to exclude defendants statements resulted in ineffective assistance of counsel, (3) the trial courts exclusion of evidence of the victims prior sexual conduct with other females was an abuse of discretion, (4) exclusion of that evidence violated defendants right to due process, a fair trial and to confront his accusers, and (5) cumulative prejudice amounted to a violation of due process. Court affirm the judgment.

Defendant Daniel Upp entered a negotiated plea of no contest to felony battery causing serious bodily injury (Pen. Code, 243, subd. (d)), in exchange for dismissal of the remaining charges against him. The trial court sentenced him to the upper term of four years in state prison.
On appeal, defendant contends that imposition of the upper term based on facts that were not submitted to a jury violated his Sixth and Fourteenth Amendment rights. (Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm the judgment.

Defendant Brian James Robertson was released from custody on bail after being charged with possession of a controlled substance. (Health & Saf. Code, 11377, subd. (a).) On October 2, 2006, in case No. CM025805, defendant was charged with two counts of failing to appear while released on bail. (Pen. Code, 1320.5.)[1] On October 26, 2006, defendant pled no contest to one of the failure to appear counts. In addition, in case No. CM024999, defendant pled no contest to possession of a controlled substance as a misdemeanor, and in case No. SCR56054, defendant pled no contest to battery ( 243, subd. (b)) as a misdemeanor. Defendant was sentenced to the midterm of two years. Defendant did not obtain a certificate of probable cause.
Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

Defendant appeals from a judgment of conviction and sentence. Truong was charged in an information with two counts of attempted robbery, possession of an illegal weapon (a billy club), petty theft with a prior theft conviction and receiving stolen property. The information also alleged that Truong had served a prior prison term. A jury found Truong guilty of possessing an illegal weapon, and the trial court found true the prison prior allegation.
Truong challenges his conviction for possession of an illegal weapon on two grounds. Truong first contends that there is not substantial evidence to support the verdict. He next contends that his conviction must be reversed because the trial court failed to properly instruct the jury on the definition of "possession."
Truong also challenges his sentence on two grounds. Truong contends that his sentence should be modified because the trial court improperly made dual use of the fact that Truong has served a prior prison term by using it both to impose a one year enhancement, as well as to impose the upper term. Finally, Truong contends that the trial court erred in imposing the upper term because in doing so, the court relied on facts that were not found by the jury, thereby violating Truong's Sixth Amendment right to a jury trial.
Court reject Truong's challenges to his conviction; the verdict is supported by substantial evidence, and the trial court properly instructed the jury. We also reject Truong's contention that the trial court used his prior prison term both to enhance his sentence and to impose an upper term, because the trial court relied on different, although related, factors to enhance the sentence and to impose the upper term. Finally, Court reject Truong's contention that the trial court erred in imposing the upper term based on aggravating facts that were neither found by the jury nor admitted by Truong, in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S.[27 S.Ct. 856] (Cunningham). Court therefore affirm the judgment of the trial court.

The juvenile court sentenced Sylvia Marie R. (Sylvia) to no more than six months probation after finding she committed one count of misdemeanor fraudulent appropriation by a clerk, agent, or employee (Pen. Code, 508).
On appeal, Sylvia contends the court erred by admitting into evidence her written confession. Sylvia further contends the People failed to establish corpus delicti. Lastly, Sylvia contends the court lacked substantial evidence in finding she had embezzled more than $400 from her employer. Court affirm the judgment.

Tiffany H. appeals a judgment terminating her parental rights to her daughter, A.H. under Welfare and Institutions Code section 366.26.[1] She contends the court's finding that A.was likely to be adopted is not supported by substantial evidence, the court erred when it denied her request for a short continuance to obtain developmental test results, and the court did not comply with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) We agree there was noncompliance with ICWA but otherwise find no error. Accordingly, Court reverse and remand with directions.

Belinda R. appeals a judgment of the juvenile court terminating her parental rights to her minor son Tristan R. under Welfare and Institutions Code section 366.26. Belinda challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. Court affirm the judgment.