CA Unpub Decisions

Petitioner Vanessa V. (mother) is the mother of Elena M. (child), a dependent minor born in August 2004. In this petition, mother challenges the juvenile courts decision at the jurisdiction and disposition hearing on a supplemental (Welf. & Inst. Code, 387) dependency petition to remove the child from her custody, terminate reunification services, and set a section 366.26 permanent plan hearing. Specifically, mother argues: 1) there was not clear and convincing evidence of a substantial risk of danger to the child if left in mothers custody; and 2) there was not clear and convincing evidence that the minors physical health could be protected only by removal from mothers custody. As discussed below, Court reject mothers contentions and deny the petition.

Ernesto Ernie Martinez challenges his first degree murder conviction, contending the trial court prejudicially erred in admitting two witnesses prior statements to investigators. Defendant argues the prior statements constituted inadmissible hearsay because the prosecution failed to demonstrate the prior statements were inconsistent with the witnesses trial testimony. Defendant contends the courts ruling violated his right to confrontation because the witnesses inability to recall their prior statements made it impossible to conduct an effective cross examination.
Court find the prosecution presented an adequate foundation for admitting the prior statements of one witness, and that defendant failed to object to the admission of the other witnesss prior statements, thus waiving the issue on appeal. Finally, Court conclude the witnesses contrived failure to recall their prior statements did not violate defendants confrontation and due process rights because the witnesses were present and fully available for cross examination. Court therefore affirm.

Defendant Deborah Ann Perna appeals from her conviction for first-degree murder with special circumstances. She challenges the sufficiency of the evidence against her, contending her conviction was based on uncorroborated accomplice testimony. She further contends the court erroneously instructed the jury on the felony murder special circumstance and witness credibility.
Court disagree. The accomplices testimony was corroborated by physical evidence tying defendant to the actual killers and defendants statements indicating consciousness of guilt. The court properly instructed the jury on the felony murder special circumstance, omitting only an unwarranted clarification from the standard form instruction. The court also properly instructed the jury on witness credibility. The challenged form instruction does not lower the prosecutions burden of proof. Court affirm.

Defendant Gerardo Lopez challenges his conviction for first degree murder with special circumstances. He contends insufficient evidence showed he committed the murder during the commission of a kidnapping or attempted robbery. Thus he asserts the evidence is insufficient to support the first degree murder conviction. He also asserts the evidence was insufficient to support any of the additional elements of the special circumstances finding. Defendant further contends the court erred by failing to instruct the jury on false imprisonment, a lesser included offense to kidnapping. Finally, he claims the prosecutor committed prejudicial misconduct by stating a single vote of not guilty would lead to an acquittal. Court reject defendants contentions, and affirm.

Mateo C. appeals from the order made at the six month review hearing (Welf. & Inst. Code, 366.21) concerning his children. At the hearing, the juvenile court returned the children to their mother under a plan of family maintenance, transferred the dependency cases to Alameda County where the mother resides, ordered no visitation for Mateo until a psychological evaluation of him was completed, and issued a restraining order prohibiting Mateo from contacting the mother or the children, except through their social workers. On appeal, Mateo contends: (1) he was denied reasonable services; (2) the children should have been placed in his custody; (3) transferring the dependency cases to Alameda County was improper; and (4) the visitation restrictions and restraining order were improper. Court find no error and affirm the order.

Kristi F. and Philip R. each petition for a writ of mandate to compel the juvenile court to a vacate a 12 month review order. Kristi is the mother of Andrew F. and Hunter F., and Philip is the father of Andrew. Kristi argues she was denied due process when the court refused to hold an evidentiary hearing on the issues of relative placement and the appropriateness of the current placement. Philip argues there is insufficient evidence to support findings that it would be detrimental to place Andrew with him, and that Philip was offered reasonable services. Counsel for the minors argues the petitions should be denied. Court agree with the minors and deny the petitions.

Appellant Frank S. Rodriguez, Jr. (Rodriguez) appeals from his conviction of stalking, indecent exposure, annoying or molesting a child, and receiving stolen property. He argues that: (1) the police search of his vehicle was unlawful, (2) the court erred in denying his motion to sever the stolen property charge, and (3) the court erred in granting his motion to represent himself because it denied him his right to a fair trial. Court affirm.

Defendant appeals a judgment entered upon a plea of guilty to assault by means of force likely to produce great bodily injury. (Pen. Code, 245, subd. (a)(1).) He contends the trial court abused its discretion and denied him due process in sentencing him to the middle term of imprisonment. Court affirm.

After denial of defendants motion to suppress evidence, he was convicted following a jury trial of possession of methamphetamine for sale (Health & Saf. Code, 11378), transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)), and driving without a license (Veh. Code, 12500, subd. (a)). The trial court found that defendant suffered a prior drug conviction (Health & Saf. Code, 11370.2, subd. (a)), and served six prior prison terms (Pen. Code, 667.5, subd. (b)). He was sentenced to an aggregate state prison term of nine years. In this appeal he renews his challenge to his detention and the warrantless search and seizure of evidence. Court conclude that detention and search of defendant and his vehicle were lawful, and affirm the judgment.

A modification decision.

This case is one of several remanded to us by the United States Supreme Court after the decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), which has significant effects on Californias criminal sentencing scheme. As explained below, Court vacate the sentence and remand to the trial court for resentencing.

This case is one of several remanded to us by the United States Supreme Court due to their decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), which has significant effects on Californias criminal sentencing scheme. As explained below, Court vacate the sentence and remand to the trial court for resentencing.

Defendant and appellant Ronald Brooks was convicted of two counts of robbery (Pen. Code, 212.5) and one count of burglary ( 460). The jury also found true the allegation that Brooks used a gun in the commission of these crimes. ( 12022.53, subd. (b)).
On appeal, Brooks argues that (1) the trial court erred in denying his motion to suppress evidence obtained from a stop of the van he was riding in after the robbery; (2) his counsel was ineffective because he failed to move to exclude identification evidence; (3) the trial court erred in admitting extrajudicial statements incriminating him and, in one case, statements made by a witness at a hearing when neither he nor counsel were present; (4) the People committed error during closing argument discussions of the burden of proof; and (5) the judgment must be reversed because of Griffin error. None of these arguments has merit and Court affirm the judgment.

Plaintiffs John G. Wang and Marcia Y. Wang appeal from an order enjoining them from prosecuting claims against Merrill Lynch, Pierce, Fenner & Smith (ML) and its agents, following the entry of a settlement agreement with Merrill Lynch Credit Corporation (MLCC). Court perceive no error and affirm.