CA Unpub Decisions

E. S. seeks review of a juvenile court order sustaining a Welfare and Institutions Code section 387 petition, which sought removal of her son, M., from her care. (All statutory references are to the Welfare and Institutions Code.) She contends the order was not supported by sufficient evidence and the circumstances listed in the petition did not support removal. Court affirm the order.

A jury found defendant guilty as charged of the first degree murder of John Edward Young on January 10, 2004. (Pen. Code, 187, subd. (a);[1]count 1.) Young was 62 years old and defendant was 18 years old at the time of the murder. The jury also found two felony-murder special-circumstance allegations true: defendant committed the murder while engaged in the crimes of robbery ( 190.2, subd. (a)(17)(A)) and carjacking ( 190.2, subd. (a)(17)(L)). The jury found not true a further allegation that defendant personally used a knife in the commission of the murder. ( 12022, subd. (b)(1).) Defendant was sentenced to life without parole, and appeals.

Defendant contends the trial court erroneously: (1) denied his Faretta[2]motion; (2) admitted hearsay evidence; (3) failed to instruct on an accomplice testimony; (4) refused his request to instruct on the lesser included offense of involuntary manslaughter; (5) failed to ensure his presence during a readback of testimony during jury deliberations; and (6) imposed a parole revocation fine. Defendant further contends the cumulative effect of the trial courts errors denied him a fair trial.
In view of defendants sentence of life without parole, we agree that the parole revocation fine was erroneously imposed and must be stricken. Court find no prejudicial error, and affirm the judgment in all other respects.

The trial court found true an allegation that minor committed an assault by means likely to produce great bodily injury. (Pen. Code, 245(a)(1).) On appeal, minor contends there was insufficient evidence to sustain the allegation. He likewise claims that, assuming there was sufficient evidence to sustain the allegation of assault solely on an aiding and abetting theory, there was insufficient evidence to support a true finding on the enhancement that he personally inflicted great bodily injury. Court conclude the evidence was sufficient to sustain the allegation in its entirety and, therefore, affirm the judgment below.

After the trial court denied her mPilla Yes I will try otions to suppress, defendant pled no contest to a charge of possession of cocaine for sale (count 1 Health & Saf. Code, 11351)[1]and admitted an allegation that the cocaine weighed in excess of one kilogram ( 11370.4, subd. (a)(1)). On appeal, she contends the cocaine should have been suppressed because: (1) the arresting officer did not have a reasonable and articulable suspicion of criminal behavior to justify the initial traffic stop; (2) defendants consent to search the vehicle was coerced; and (3) the search of defendants vehicle exceeded the scope of any consent she may have given. Court disagree with defendant and affirm the judgment below.

Lionel Montolongo was convicted of transporting a controlled substance (Health & Saf. Code, 11379, subd. (a)), possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)), and giving a false name to a police officer (Pen. Code, 148.9, subd. (a)).[1] He argues that he cannot be convicted of both transportation of a controlled substance and possession of the same controlled substance because the latter is a necessarily included offense of the former. He also argues that while he did give a false name to the officers, he was not legally detained at the time and therefore the evidence was insufficient to support the conviction.
The People concede, and we agree, that the possession of a controlled substance conviction must be reversed. Court affirm the judgment in all other respects.

The juvenile court adjudged appellant, Joseph R., a ward of the court (Welf. & Inst. Code, 602) after it sustained allegations charging Joseph with assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and possession of less than an ounce of marijuana (Health & Saf. Code, 11357, subd. (b)). On October 11, 2006, the juvenile court placed Joseph on probation on certain terms and conditions, including that he serve 30 days on the electronic monitor and that he perform 80 hours of community service. On appeal, Joseph contends the evidence is insufficient to sustain the juvenile courts finding that he committed an assault with a deadly weapon offense. Court affirm.

Defendant Salvador Flores Gonzalez appeals from the judgment entered after a jury found him guilty of lewd or lascivious acts with a child under 14 years of age, false personation, child annoyance, indecent exposure, and failure to register as a sex offender.
Defendant contends the trial court abused its discretion by (1) allowing testimony describing the facts and circumstances surrounding defendants conviction for rape in 1999 because its probative value was substantially outweighed by its prejudicial impact; (2) admitting his postarrest videotaped interviews with police officers because the interviews improperly contained the officers opinions about defendants intent, guilt, and truthfulness, and because defendant was not provided a Spanish speaking interpreter at the time he was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) at the beginning of the interviews; and (3) allowing the interviewing police officers to testify about their opinions on the issue of defendants intent, guilt, and truthfulness.
Defendant also contends the trial court erred by imposing an upper term sentence and consecutive sentences, based on facts not admitted or found true by a jury beyond a reasonable doubt.
Court affirm. The trial court did not err by admitting evidence regarding defendants 1999 rape conviction under Evidence Code section 1108 because its probative value was not substantially outweighed by its prejudicial impact. Defendant did not object to the introduction of the videotaped interviews on the ground that they contained the officers opinions. In any event, the videotaped interviews were properly admitted after the jury was instructed not to consider any facts, concerns, or insinuations or opinions in the questions asked as true. Defendant did not object to the interviewing officers testimony at trial. Even assuming defendant has not waived objections to the testimony, the testimony did not include opinions about defendants intent, guilt, or truthfulness; the testimony merely explained why the officers asked defendant certain questions.
The record does not show defendant required an interpreter when he was read his rights under Miranda during his postarrest interviews with police officers. In light of the United States Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), Court remand for resentencing on the sole ground the trial court imposed an upper term sentence based on aggravating circumstances found true by the court rather than by a jury beyond a reasonable doubt.

Vinci Investment Co., Inc., a car dealership doing business as Honda Santa Ana (Honda), appeals the trial courts order striking its complaint for declaratory relief against two used automobile purchasers, Charles Browning and Bernadette Chapman.
Honda contends its suit against the purchasers amounted to a garden-variety action to determine the parties respective contractual rights and obligations, and whether Honda violated any consumer protection laws, rather than a strategic lawsuit against public participation (SLAPP) subject to strike under Code of Civil Procedure section 425.16.
Honda acknowledges its declaratory judgment action followed on the heels of defendants notice of their intent to sue Honda under the Consumers Legal Remedies Act (CLRA) (Civ. Code, 1750 et seq.), and Honda concedes such notices are a protected activity within the meaning of section 425.16, which guards against intrusions on the rights of free speech and petition. But as our Supreme Court has observed: [T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66 (Equilon).) Honda points out it did not seek to enjoin or otherwise preclude defendants contemplated CLRA action, which they remained free to pursue. We also observe Honda did not attack defendants CLRA notices or any other speech or petitioning activity by defendants, but instead sought adjudication of its own conduct under the pertinent contracts and laws. Court therefore agree defendants failed to carry their burden to establish Hondas suit ran afoul of the anti-SLAPP law. Accordingly, court reverse.

On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
Pursuant to this mandate, Court have recalled the remittitur. We have re-examined our initial opinion in this case (People v. Tewolde (Mar. 21, 2005, A106273) [nonpub. opn.]), which remains on file with this court, and which we hereby incorporate by reference into this order.
Court have reconsidered our prior opinion in light of Cunningham, which simply applies Blakely to California sentencing law. Cunningham only confirms the validity of our initial holding. Because Court deem it unnecessary to modify our prior opinion, Court reiterate that opinion in its entirety. (City of Long Beach v. Bozek (1983) 33 Cal.3d 727, 728.).

Appellant was convicted, following two jury trials, of one count of first degree murder of a police officer engaged in the performance of his duties and two counts of attempted murder of a police officer. On appeal, he contends (1) the trial court erred when it refused to instruct the jury in the second trial on involuntary manslaughter; (2) the court erred when it refused to instruct the jury about the effects of prior threats by people associated with the victims; (3) the evidence in the second trial was insufficient to support his conviction for attempted murder; (4) the court erred, in the second trial, when it refused to admit a taped interview of an eyewitness who had died prior to trial; (5) the court erred when it allowed the prosecution to impeach appellants wifes credibility with evidence of matters occurring almost two years after the incident; (6) the court erred when it granted the prosecutions motion to exclude all evidence regarding an internal affairs investigation of a police officer witness; (7) the court erred when it excluded evidence related to appellants conduct when he learned of his wifes past affair with a police officer; (8) prosecutorial misconduct requires reversal; (9) judicial misconduct requires reversal; and (10) the cumulative effect of the errors requires reversal. Court affirm the judgment.

Plaintiff appeals a judgment, dismissing his complaint against defendants County of Solano (County), and Solano County Deputy Sheriff Brian Cauwells. Before trial, the court struck plaintiffs cause of action pursuant to Civil Code section 52.1, on the ground that his tort claim filed with the County did not include sufficient information to encompass a section 52.1 claim. After a trial, the jury returned a defense verdict on plaintiffs assault cause of action, but failed to reach a verdict on his negligence claim. The trial court then directed a verdict in favor of defendants on the negligence claim, and entered judgment in their favor. Plaintiff now challenges the dismissal of his negligence cause of action and the striking of allegations stating a claim pursuant to section 52.1. Court uphold the dismissal of the negligence cause of action. But, Court conclude the judgment must be reversed and the matter remanded for further proceedings on the cause of action alleged pursuant to section 52.1.

This appeal stems from a personal injury action arising from a car accident on Interstate 80 (I 80). Plaintiff and appellant Charles Rafferty appeals the superior courts grant of summary judgment in favor of defendant and respondent, State of California et al. (the State). Appellant contends the superior court erred in granting summary judgment based on respondents affirmative defense of design immunity. According to appellant, respondents failed to carry their burden of proving design immunity. He also alleges the design immunity defense was lost because of changed circumstances. Court affirm.

Appellant sued Safeway, Inc. (Safeway) for injuries allegedly suffered when she tripped over a hand basket she claimed was protruding near the end of a check-out counter at a Safeway store on Fruitvale Avenue in Oakland. Her original complaint alleged causes of action for negligence, premises liability, emotional distress, and willful misconduct. The latter two causes of action did not survive Safeways demurrer, and the negligence and premises liability claims were dismissed after the lower court granted summary judgment in favor of Safeway on both of them. Appellant, appearing both here and below in pro per, appeals from the latter order and judgment and also from the courts denial of her motion to tax the costs requested by Safeway. Court affirm.

Leo Samuel Archer (Archer) appeals from an order revoking his outpatient status under Penal Code section 1608. He contends the standard for revocation under section 1608 is unconstitutionally vague and the court abused its discretion in concluding the standard was met. In addition, Archer and respondent agree that the case should be remanded for a jury trial as to whether Archer has been restored to sanity within the meaning of section 1026.2. Court affirm the order revoking Archers outpatient status and remand for a jury trial on the issue of restoration to sanity.