CA Unpub Decisions

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court issued at a contested 18-month review hearing (Welf. & Inst. Code, 366.22) terminating reunification services and setting a section 366.26 hearing as to her daughter L. and son D. Court deny the petition.

Defendants Shelly McMillan and the law firm of McMillan & Bloch appeal from an order denying their motion to set aside a default judgment obtained by plaintiffs Clifford Woosley and the law firm of Gilbert, Kelly, Crowley & Jennett (Gilbert, Kelly). They assert several grounds for reversal. Court conclude the judgment is void because plaintiffs second amended complaint failed to provide adequate notice of the relief demanded against defendants in violation of Code of Civil Procedure section 580, subdivision (a). Therefore, Court reverse the order denying the motion to set aside the default judgment.

Defendant appeals his sentence following conviction by jury trial of the following offenses: count 1--murder (Pen. Code, 187, subd. (a); undesignated section references are to the Penal Code); count 2--assault on a child with force likely to produce great bodily injury resulting in death ( 273ab); count 4--felony child abuse ( 273a, subd. (a)) and count 5--infliction of corporal injury on the mother of a child ( 273.5, subd. (a)).
Defendants convictions resulted from the death of defendants 11-month-old son who, upon examination at the UC Davis Medical Center on April 28, 2005, had bruises on his head, torso, buttocks and leg. Defendant had earlier struck the child, causing a black eye, in February, 2005.
In this appeal, defendant challenges only the imposition of the upper term of six years on count 4, violation of section 273a, subdivision (a), on the ground the upper term was imposed based upon an aggravating factor not found by the jury as required by Cunningham v. California (2007) 549 U.S.[127 S.Ct.; 166 L.Ed.2d 856] and Blakely v. Washington (2004) 542 U.S. 296.
The upper term sentence on count 4 is vacated and the matter is remanded to the trial court. Within 30 days, the District Attorney shall elect whether to try aggravating factor(s) to a jury or whether to stipulate to imposition of the midterm on count 4. In all other respects, the judgment is affirmed.

A jury convicted defendant Kevin Lewis Holloway of transportation of cocaine base (Health & Saf. Code, 11352, subd. (a) count one), transportation of heroin (ibid. count two), transportation of marijuana (Health & Saf. Code, 11360, subd. (a) count three), and conspiracy to transport cocaine, heroin and marijuana (Pen. Code, 182, subd. (a)(1) -- count seven). The jury found true allegations that defendant had suffered a 1988 robbery conviction (Pen. Code, 211) and a 1998 voluntary manslaughter conviction (Pen. Code, 192, subd. (a)). The trial court declined to strike either prior felony conviction. Defendant was sentenced to state prison on counts one, two, and three for concurrent terms of 25 years to life. The sentence on count seven was stayed pursuant to Penal Code section 654.
On appeal, defendant contends (1) the trial courts refusal to strike one or both prior felony convictions was an abuse of discretion, and (2) his sentence of 25 years to life is cruel and unusual within the meaning of the Eighth Amendment to the United States Constitution. Court affirm the judgment.

A jury convicted defendant Lamel Adams of carjacking (Pen. Code, 215, subd. (a) count one), attempted second degree robbery (Pen. Code, 211, 212.5, subd. (c), 664 count two), evading a peace officer with willful disregard for safety (Veh. Code, 2800.2, subd. (a) count three), and possession of a firearm by a convicted felon (Pen. Code, 12021, subd. (a)(1) count four). The jury found that defendant personally used a firearm (Pen. Code, 12022.53, subd. (b)) in the commission of counts one and two. In a bifurcated proceeding, the jury found that defendant had suffered four prior serious felony convictions in September 1993 and a fifth such conviction in March 1990. He was sentenced to state prison for 54 years to life, consisting of 29 years (the upper term of nine years, plus 10 years for firearm use, plus 10 years for the separately tried serious felony convictions) to life on count one ( 667, subd. (e)(2)(A)(iii)) plus 25 years to life on count three; concurrent terms of 25 years to life plus a 10 year firearm enhancement on count two and 25 years to life on count four were imposed.
On appeal, defendant contends (1) his attempted robbery conviction must be reversed because the trial court failed to give the jury a unanimity instruction, (2) his evading a peace officer conviction must be reversed because of instructional error regarding the element that the officers car be distinctively marked, (3) his $180 court security fee must be reduced to $80 (the Attorney General concedes this point), and (4) the upper term component of his third strike sentence for carjacking is unconstitutional under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court modify the judgment as to the court security fee and in all other respects affirm.

Kenneth S. (Kenneth) is the father of Kenneth S., Jr., (Kenneth Jr.) born May 2002, and William S., born July 2004 (children). The San Diego CountyHealth and Human Services Agency (Agency) received numerous referrals alleging the children were at risk because of on-going domestic violence, neglect, and their mother's history of substance abuse.[1] In January 2005 Kenneth and the children's mother separated after Kenneth was arrested for spousal abuse, spousal battery and child endangerment.
In March 2005 the children were removed from the custody of their mother when police officers observed hypodermic needles and methamphetamine pipes within Kenneth Jr.'s reach. Kenneth Jr. tested positive for methamphetamine. The children were adjudicated dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b).
The court ordered a permanent plan of guardianship for the children with Uncle and directed that Kenneth's visitation was to be supervised by a professional visitation service, as approved by the family court with the assistance of family court services. The court terminated dependency jurisdiction.
The judgments and orders are affirmed.

Robert P. appeals the order denying his request for paternity testing in the juvenile dependency case of Mollie U. He contends the juvenile court abused its discretion by denying the request, which would have yielded information bearing on his right to move to set aside the paternity declaration executed by presumed father Michael U. Robert argues it is in Mollie's best interests for the court to resolve any competing claims of presumed fatherhood that might result if the declaration were set aside. Court affirm.

A jury convicted defendant Jarvin ONeal Nash of attempted burglary. (Pen. Code, 459.) The jury also found true that a person was present in the residence during its commission. Defendant was sentenced to 25 years to life under the Three Strikes law for the attempted burglary. On appeal, defendant argues that (1) the trial court erroneously denied defendants Wheeler / Batson motion by failing to inquire into the prosecutors reasons for his peremptory challenges, (2) the trial court abused its discretion by denying defendants Romero[2]motion, and (3) specially appointed counsel failed to file a motion for new trial or a pleading consistent with Wende/Anders[3] requirements. We conclude that the trial court correctly held the defense failed to prove a prima facie case of discrimination. We also conclude that the trial court did not abuse its discretion in denying defendants Romero motion. Finally, we determine that specially appointed counsel did not render ineffective assistance of counsel and we decline defendants invitation to create a requirement that trial counsel file a Wende / Anders type pleading in the trial court. As defendants assignments of error are without merit, Court affirm the judgment.

Appellant, the mother of C. T. and A. S. (the minors), appeals from the order of the juvenile court terminating her parental rights. Appellant contends the juvenile court erred by failing to find an exception to adoption based on her relationship with the minors and because the minors were living with relatives who were unwilling to adopt them. Court affirm.

Defendant Francis P. Florence appeals a suspended prison sentence of five years imposed upon the revocation and termination of his probation in PEF001397 and a three-year prison term imposed upon the revocation and termination of his probation in PEF005279. Defendant claims these prison sentences violate an amended plea agreement guaranteeing him a maximum prison sentence of two years. He contends he is entitled to specific enforcement of the amended plea agreement. Alternatively, he contends the trial court misunderstood the scope of its discretion and should have considered all sentencing options in these cases before it sentenced him to prison. Defendant also argues the trial court improperly imposed a second restitution fine in both cases.
The judgments of November 22, 2005, are modified by striking the restitution fine of $700 imposed in PEF001397, and by striking the restitution fine of $300 imposed in PEF005279. The $200 restitution fine imposed when probation was granted on August 20, 1998, in PEF001397, as well as the $200 restitution fine imposed when probation was granted on January 31, 2003, in PEF005279, remain in force. As modified, the judgment is affirmed in all other respects. The trial court is directed to prepare amended abstracts of judgment reflecting these modifications and to forward a certified copy of each amended abstract to the Department of Corrections.

Defendant and appellant Michael Ray Sepulveda II pleaded guilty to one count of committing a lewd act on a child (Pen. Code, 288, subd. (c)(1)) and was placed on probation. He filed a notice of appeal, challenging several of the conditions of his probation which were imposed.

A jury convicted defendant Dwayne Fister of two counts of possession of stolen property, in violation of Penal Code section 496, subdivision (a). He was found not guilty of a third count. He appeals, arguing that his counsel was constitutionally ineffective.
Defendant also filed a petition for writ of habeas corpus which provides additional factual information on the same issue (case No. E042028). By order filed January 10, 2007, Court stated that the petition would be considered with the appeal for the sole purpose of determining whether an order to show cause should issue.

A jury convicted defendant Juan Galvan of possessing a billy club. (Pen. Code,[1] 12020, subd. (a)(1).) On appeal, he alleges several errors: there was insufficient evidence to support the charge, the jury was not instructed on all the elements of the crime, defense counsel rendered ineffective assistance, the prosecutions expert unfairly expressed an opinion that defendant was guilty, and an expert witness instruction should not have been given to the jury. Court reject all of defendants claims and affirm the judgment.

On December 4, 2003, the Kings County District Attorney filed an information in superior court charging appellant Gino Ynclan as follows: counts I and IIattempted manufacture of a sharp instrument while in prison (Pen. Code, 4502, subd. (b)) with one prior felony strike ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms ( 667.5, subd. (b)).
The judgment of conviction and the admitted special allegations are affirmed. The matter is remanded to the trial court for the limited purposes of (a) resentencing on the substantive count pursuant to the principles of Cunningham,as discussed in part III above and (b) either striking or imposing sentence on the two prior prison term enhancements discussed in part IV above. For such limited purposes the judgment of sentence is vacated. The trial court resentence appellant and thereupon issue an amended abstract of judgment and transmit certified copies thereof to all appropriate parties and entities. In all other respects the judgment is affirmed.