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 terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her son T. Court deny the petition.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 (rule)) to vacate the orders of the juvenile court terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her children M. and K. Court conclude her petition fails to comport with the procedural and content requirements of rule 8.452. Accordingly, Court dismiss the petition as facially inadequate.

After this court summarily denied the petition of Richard H. Fanzman, Jr., for a writ of habeas corpus, petitioner sought review in the Supreme Court of California. Citing Article VI, section 14 of the California Constitution and People v. Romero (1994) 8 Cal.4th 728, 740, the Supreme Court granted the petition and transferred the matter back to this court, ordering us to vacate our denial order of November 7, 2006 and proceed to a disposition of the matter by means of a written opinion with reasons stated. In accordance with the courts order, Court heard oral argument and reconsidered Court's denial but conclude again that the petition should be denied.

Defendant pleaded guilty to possessing methamphetamine after the trial court denied his motion to suppress evidence. (Pen. Code, 1538.5.) He contends investigating officers lacked reasonable cause to extend his traffic detention and he did not voluntarily consent to the search of his person. Court agree with the latter contention and therefore reverse the judgment.

Court conclude the trial court did not err in modifying the stipulated order, but the record fails to demonstrate the trial court applied the appropriate factors to determine whether the amount of fees awarded were reasonable. Accordingly, Court reverse the order, and remand for this determination.

The clear and convincing requirement effectively put the burden on Cedillos to come up with affirmative evidence of malice. The most Cedillos has shown is the failure to interview Cedillos to get his side of the story. But that failure, as Court have noted was reasonable under the circumstances, and therefore could hardly constitute clear and convincing evidence of malice. Since Cedillos did not carry his burden, we therefore need not dwell on any implications of the fact that Cedillos paid $23,000 to repair the car. The judgment is affirmed.

Defendant pleaded guilty to possessing heroin following denial of his motion to suppress evidence. He argues the investigating officer illegally detained him, which led to a parole search of his motel room. Court affirm.

Appellant appeals from a final order awarding respondents Ernest and Krisana Vigus (the Viguses) attorney fees and costs. The Viguses were third party claimants, formally joined as parties to the marital dissolution proceeding of Choudhury and Nina Haro. Appellant contends attorney fees may not be awarded under Family Code section 271 (section 271) to a third party joined in a marital dissolution proceeding. Court disagree and affirm the order.

A jury found Nora Hartman guilty of residential burglary, robbery, unlawful vehicle taking, and carjacking, and found the allegations she was vicariously armed with a firearm to be true. She argues no substantial evidence supported the trial courts decision to accept the prosecutors race neutral reasons for using peremptory challenges to excuse two of three black jurors. For the reasons expressed below, Court affirm.

A jury convicted Julio Ceballos of three misdemeanor counts of gang-related brandishing of a deadly weapon (Pen. Code, 186.22, subd. (d); 417, subd. (a)(2)(A)), and felony counts for street terrorism ( 186.22, subd. (a)), gang-related possession of a concealed firearm in a vehicle ( 12025, subd. (a)(3), (b)(3)), and unlawful possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury found defendant committed the firearm possession offenses for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(A).) Defendant contends his street terrorism conviction must be reversed because that offense occurs only where the offender aids and abets some other felony distinct from any he commits himself. In proscribing street terrorism, however, the Legislature did not intend to punish only persons who demonstrate their active participation in a criminal street gang by aiding and abetting felony offenses, while exempting from punishment their equally or more culpable gang compatriots who directly perpetrate the offense. (People v. Salcido (2007) 149 Cal.App.4th 356, 367-370 (Salcido); People v. Ngoun (2001) 88 Cal.App.4th 432, 435 (Ngoun).)
Defendant further contends the trial court erred by: (1) permitting the prosecutions gang expert to offer an opinion on defendants purported subjective knowledge of his gangs criminal activities, and (2) counting two of his prior convictions as separate strikes though they arose from the same act. As Court explain below, defendants sentencing contention has no merit. Court affirm the judgment.

A jury convicted Cesar Luna of two counts of lewd and lascivious acts on a child under the age of 14 (Pen. Code, 288, subd. (a)). He argues the court erred in instructing on child sexual abuse accommodation syndrome and made several errors relating to a prior military court-martial conviction that furnished the basis to double his sentence under the Three Strikes law. For the reasons expressed below, Court affirm.

A jury convicted Brandi Nicole Clark of second degree robbery (Pen. Code 211, all statutory references are to the Penal Code unless otherwise noted) and found true the allegation she used a firearm in the offense ( 12022, subd. (a)(1)). She argues the trial court abused its discretion in sentencing her to prison because it mistakenly believed it could not grant probation. For the reasons stated below, Court affirm.

Boe Mays appeals from the judgment granting him formal probation after a jury convicted him of possessing methamphetamine, taking and driving a motor vehicle, and resisting a police officer. (See Health & Saf. Code, 11377, subd. (a); Veh. Code, 10851, subd. (a); Pen. Code, 148.) A subsequent court trial found that Mays was on conditional release from other felony charges when he was found in possession of the methamphetamine. (See Pen. Code, 12022.1, subd. (b).) Mays contends on appeal that the trial court erred when it excluded certain testimony by Christiana Sanchez, a defense witness. As Court hold that no evidentiary error occurred, the judgment is affirmed.

Defendant was convicted of attempted murder; the jury found he acted willfully, deliberately, and with premeditation. On appeal, defendant argues the trial court erred by instructing the jury that flight after the commission of a crime may show a consciousness of guilt. Defendant contends that such an instruction was prejudicial since the only issue at trial was his level of culpability, not his identity. That argument has been rejected by the California Supreme Court on a number of occasions.
Defendant also argues he received ineffective assistance of counsel, because his trial counsel did not request an instruction that provocation may reduce an attempted murder from first degree to second degree. Court conclude defendants trial counsel was not ineffective, because there was no evidence of provocation whether objective or subjective to justify the giving of such an instruction. Finally, defendant argues the trial court erred by refusing to give him any conduct credits. The Attorney General concedes, and we agree, that defendant was entitled to conduct credits totaling 15 percent of his presentence custody credits. Court affirm the judgment, and direct the trial court to correct the abstract of judgment to reflect defendants entitlement to conduct credits.