CA Unpub Decisions

Defendant entered negotiated guilty pleas to four counts of lewd and lascivious conduct with a minor under the age of 14 years. (Pen. Code, 288, subd. (a).) He admitted substantial sexual conduct in three of the crimes. ( 1203.066, subd. (a).) The court sentenced him to a stipulated 14 years in prison: the eight year upper term on one count with a consecutive full six year middle term on a second count. It imposed concurrent terms on the two remaining counts and ordered Buzby to pay victim restitution of $1,366 to the San Diego Police Department under section 1202.4, subdivision (f) and a parole revocation restitution fine of $2,800. Defendant contends the trial court erred by ordering him to pay $1,366 victim restitution to the San Diego Police Department.
The judgment is otherwise affirmed.

Dfendant entered a negotiated guilty plea to possessing a controlled substance (Health & Saf. Code, 11350 subd. (a)) and admitted a prior strike (Pen. Code, 667 subds. (b)-(i), 1170.12, 668). The court suspended imposition of sentence and placed him on three years probation for drug rehabilitation (Pen. Code, 1210.) After revoking and reinstating probation on February 2, 2006, on May 12, 2006, the court again revoked probation and found Embry not amenable to treatment. The court denied Embry's motion to strike the prior strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced him to prison for 32 months: double the 16 month lower term for possessing a controlled substance with a prior strike. The court issued a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).) The judgment is affirmed.

Appellant appeals an order of the juvenile court removing her minor son, Anthony H., from her custody, terminating her reunification services and placing Anthony in Connecticut with his father, Anthony H., Sr. (father) under Welfare and Institutions Code section 361.2, subdivision (a). I.G. contends the court erred by placing Anthony with his father because the evidence showed Anthony would be emotionally harmed by being separated from his siblings and extended family. Court affirm the order.

In this dependency case of Wolfgang S., his parents' paternity questionnaires, filed the day of the November 2000 detention hearing, stated his father, Bradley S., had Cherokee heritage. At the hearing, Bradley's counsel stated, "[Bradley] does report that he does have some Cherokee blood, that he is not a member of a registered member of a tribe." The court found the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) did not apply. The applicability of ICWA was not addressed at subsequent hearings. No ICWA notice was ever given.
The judgment terminating parental rights is reversed and the matter is remanded to the juvenile court, with directions to order the Agency to give notice in compliance with the notice provisions of ICWA. The juvenile court is further directed to order the Agency to give notice in accordance with current case law to the BIA; the Cherokee Nation, Oklahoma; the Eastern Band of Cherokee Indians of North Carolina; and the United Keetoowah Band of Cherokee Indians in Oklahoma. If, after proper ICWA notice is given and received it is determined Wolfgang is an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA. If, after notice is given and received Wolfgang is determined not to be an Indian child for purposes of ICWA, the juvenile court shall reinstate the findings and orders of December 8, 2006. The remittitur is to issue forthwith.

Patricia M. appeals an order denying her Welfare and Institutions Code section 388 petition, in which she requested the court vacate an order setting a section 366.26 hearing and placing her two children, J.M. (J.) and C.M. (C.), in her care. She argues the court abused its discretion because she had completed much of her case plan and was able to care for the children safely. Court affirm the order.

The facts in this case are crucial, because ultimately, the appeal comes down to whether, if defense counsel had objected to certain out-of-court statements, defendant would still have been convicted of murder.
Victim Roy Serafin was shot and killed in the street in front of his house in Barstow. According to his family, his friends, and the physical evidence, he had just backed his pickup truck out of his driveway to go to his parents house; he was shot while near, and probably still inside, the pickup.
One Ellis Cooper claimed to be an eyewitness to the shooting. He told the police that defendant was the shooter. Cooper, however, did not testify at trial and was never subject to cross-examination. His hearsay statements came into evidence (repeatedly) only because defendants trial counsel failed to object to them indeed, he elicited most of them himself.
In light of Coopers statements, the police arrested defendant. At first, defendant denied any involvement in the shooting. After he had been in custody for about four months, however, he told the police that he and his friend Jolin Reynolds had been trying to collect a drug debt from a Mexican dude. Defendant had agreed to thump him up, but defendant and another friend, Michael Halsey were still in their car when Reynolds got out and shot the dude instead. Defendant insisted that Cooper was not there.
The police then arrested Halsey. Halsey admitted driving defendant and Reynolds to the victims house. However, he claimed that he and Reynolds were still in the car when defendant walked up to the victims front door and shot the victim there. Halsey denied even knowing Cooper.
Defendant, Halsey, and Reynolds were charged jointly with one count of murder. (Pen. Code, 187, subd. (a).) Reynoldss trial was later severed. Halsey entered into a plea bargain. As a result, he was the key witness against defendant at trial. Halsey testified that he drove defendant, Reynolds, and Cooper to Howze Liquor to buy some beer. While they were there, defendant spotted the victim. At defendants direction, they followed the victim home. Defendant got into a fistfight with the victim and, when he found himself on the losing end, shot him. Thus, Halseys trial testimony differed in several respects from his earlier statements to the police. Moreover, it conflicted with other evidence; among other things, the victim had not had enough time to go to and from Howze Liquor. Nevertheless, the prosecution argued that Halseys trial testimony was entirely truthful and that it was corroborated by Coopers hearsay statements.
A jury found defendant guilty of first degree murder. (Pen. Code, 187, subd. (a), 189.) It also found that he personally and intentionally discharged a firearm, proximately causing death. (Pen. Code, 12022.53, subd. (d).) Accordingly, defendant was sentenced to a total of 50 years to life in prison. In this appeal, defendant contends:
1. The trial court erred by failing to exclude Coopers statements identifying defendant as the shooter, both as inadmissible hearsay under state law and under the federal confrontation clause as construed in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford).
2. The trial court similarly erred by failing to exclude evidence that one Annette Rasch told the police that defendant was at the crime scene.
3. The prosecutor committed misconduct by introducing evidence of the victims gang affiliation, as well as other evidence that the crime was gang related.
4. The trial court erred by failing to exclude evidence that defendants nickname was C Murder.
In each instance, defendant alternatively contends that his trial counsel rendered constitutionally ineffective assistance by failing to object to the challenged evidence.
Court hold that defendants trial counsel waived the contention that Coopers statements were inadmissible by failing to object to them. Defense counsels failure to object on Crawford grounds was not deficient performance, because Crawford was not decided until after this case was tried. His failure to object on hearsay grounds, however, was objectively deficient performance. Moreover, (1) because there was little evidence of defendants guilt aside from Halseys testimony, (2) because Halseys credibility was questionable, and (3) because the prosecutor relied on Coopers statements to corroborate Halsey, Court conclude that the deficient performance was prejudicial.
Because defendants other contentions appear unlikely to arise again on remand or, at least, unlikely to arise in the same procedural posture Court do not address them.

Yader Castro Rivas (Castro), an unlicensed 15-year old driver, was on Cypress Avenue in Fontana when he decided to pass the car ahead of him. Even though Cypress was a key route to and from A.B. Miller High School, the particular portion he was on had no sidewalks. As he swerved to the left, he realized that he was about to hit a student walking on the pavement. He therefore accelerated to about 60 miles an hour and swerved to the right. He went into a skid, shut his eyes, locked his brakes, and hit two other students walking on the right side of the street. One of them Karen Medina was killed.
Karen Medinas parents, Cruz Medina and Agueda Miranda (plaintiffs), filed this wrongful death action against the City of Fontana (the City). They dismissed other named defendants including Castro and his parents, Walter Grande and Claudia Rivas before trial. The City, however, cross complained against Castro and his parents.
A jury, by special verdict, found the City liable on a theory of a dangerous condition of public property. (Gov. Code, 835.) It further found both Castro and his parents liable on a theory of negligence. It fixed the amount of plaintiffs damages at $37.5 million. It apportioned 75 percent of the liability for these damages to the City, 25 percent to Castros parents, and zero percent to Castro.
The trial court denied the Citys motion for new trial with respect to liability but granted it with respect to the amount and the apportionment of damages.
Plaintiffs appeal, contending:
1. The trial court erred by granting the Citys motion for new trial with respect to the apportionment of damages.
2. The trial court erred by granting the Citys motion for new trial with respect to the amount of damages.
The City cross appeals, contending:
1. The City, as a matter of law, cannot be held liable for the failure to make capital improvements such as sidewalks.
2. Plaintiffs failed to prove that the lack of sidewalks created a substantial risk of injury when the street was used with due care.
3. The trial court erred by allowing plaintiffs expert to testify that a dangerous condition existed.
4. The jurys apportionment of damages is unsupported by the evidence.
5. The jurys award of damages is excessive as a matter of law.
Court find no error with respect to the finding that the City is liable. We also find no error with respect to the order granting a new trial on the apportionment of damages. Court do agree with plaintiffs that the trial court erred in granting a new trial on the amount of damages, because it failed to file a timely statement of reasons. Nevertheless, Court agree with the City that the amount of damages is excessive as a matter of law.

Following a jury trial, defendant Christopher Carlos Carbajal was convicted of second degree murder (Pen. Code, 187, subd. (a)). The jury also found true the allegation that defendant personally used a deadly and dangerous weapon, a knife, within the meaning of section 12022, subdivision (b)(1). Defendant was sentenced to state prison for a total indeterminate term of 16 years to life. He appeals, contending (1) the trial court erroneously instructed the jury on the element of malice required to sustain a conviction for second degree murder; (2) the trial court erroneously instructed the jury that it could not return a verdict on the lesser offense of voluntary manslaughter unless it first unanimously acquitted defendant of murder; (3) the trial court erred in its instructions to the jury when it repeatedly phrased the offense of manslaughter in terms of reducing homicide from murder to manslaughter; and (4) the cumulative error doctrine applies.
The judgment is affirmed.

Defendant contends (1) the trial court erred in denying his Wheeler/Batson motion; (2) the evidence was insufficient to sustain his convictions for animal cruelty in counts 17 and 18; (3) the trial court erred in instructing the jury that the animal cruelty counts were the natural and probable consequences of the home invasion robbery, residential burglary, grand theft dog, and conspiracy of which he was convicted in other counts; (4) the trial court erred under Penal Code[2]section 654 in imposing a consecutive sentence for count 3; and (5) the abstract of judgment should be corrected to reflect the proper subordinate terms on counts 14 and 15. In a supplemental brief, defendant contends the imposition of aggravated terms for counts 1, 14, and 15 violated his constitutional rights to trial by jury and proof beyond a reasonable doubt.
The People concede that defendants convictions of grand theft dog in counts 3 to 12 must be reversed because they were based on the same conduct as defendants robbery conviction and that defendants sentence on counts 14 and 15 must be modified under section 1170.1, subdivision (a). Court find no other errors.

After defendant waived jury trial, the trial court found him guilty of forty counts of committing lewd and lascivious acts on a minor under the age of 14 (Pen. Code, 288 (a)) and twenty counts of committing lewd and lascivious acts on a minor over the age of 13 (Pen. Code, 288 (c)(1)), involving three different victims. He was sentenced to prison for 75 years, four months. He appeals, claiming the trial court erroneously admitted evidence, permitted the amendment of the Information and sentenced him. Court reject all his contentions save the one concerning the imposition of the upper term on count 17. Therefore, Court affirm the convictions and the sentences, except the term imposed for count 17. As to that count, Court remand the matter to the trial court for a determination of the appropriate sentence in compliance with Cunningham v. California (2007) U.S.[127 S.Ct. 856] (Cunningham).

A complaint charged defendant with (1) spousal abuse under Penal Code section 273.5, subdivision (e) (count 1); (2) false imprisonment by violence under Penal Code section 236(count 2); and (3) felony evading under Vehicle Code section 2800.2 (count 1).
On appeal, defendant contends that the erred in (1) finding that defendant violated the terms of his probation; (2) denying his motion for appointment of a mental health professional; and (3) sentencing him to the upper term. For the reasons set forth below, Court affirm the judgment.

Defendant appeals from his conviction of attempted willful, deliberate, premeditated murder (Pen. Code, 664, subd. (a), 187, subd. (a) count 1), assault with a firearm ( 245, subd. (a)(2) count 2), exhibiting a deadly weapon to an officer to resist arrest ( 417.8 count 5), and two counts of resisting an executive officer ( 69) counts 6 and 7) along with firearm use enhancements ( 12022.5, subds. (a) & (d), 12022.53, subds. (b) & (c)) as to counts 1 and 2.
Defendant contends the trial court committed prejudicial error in (1) denying defendants motion for mistrial after testimony was elicited that the victim was fearful of identifying defendant because defendant was a gang member; (2) admitting evidence that defendant had marijuana packaged for sale in his possession when he was arrested; (3) failing to instruct the jury sua sponte that resisting an officer was a specific intent crime; (4) failing to instruct the jury on section 148, subdivision (a)(1) as a lesser included offense to resisting an executive officer; and (5) denying defendants motion to release juror identifying information to enable defendant to investigate juror misconduct. Defendant also argues that the abstract of judgment must be corrected. The People concede that the abstract of judgment should be corrected. Court find no other prejudicial error, and Court affirm.

Following a jury trial, defendant Earl Eugene Cannedy, Jr., was found guilty of three counts of lewd acts upon a child (Pen. Code, 288, subd. (a)) and one count of dissuading a witness from reporting a crime ( 136.1, subd. (b)(1)). The jury also found true the special allegation in connection with counts 2 and 3, that defendant had substantial sexual conduct with the victim within the meaning of section 1203.066, subdivision (a)(8). He was sentenced to state prison for a total term of 10 years eight months.[2] Defendant appeals, contending (1) the trial court abused its discretion in admitting evidence of his prior sexual activity under Evidence Code section 1108; (2) his counsel was ineffective; and (3) the cumulative error doctrine applies. Court find each of these contentions without merit. Defendant also petitions this court for a writ of habeas corpus. He seeks to reverse the judgment on the grounds his trial counsel rendered ineffective assistance. Court find defendants writ petition without merit. Accordingly, Court affirm the judgment.

Father) and Mother appeal from the juvenile courts order following the jurisdictional/dispositional hearing. Father claims the court violated his right to due process by conducting the hearing in his absence, the court erred in failing to obtain a waiver from him pursuant to Penal Code section 2625, and his counsel was ineffective. In addition to the appeal, Father filed a petition for writ of habeas corpus reasserting his claim that his counsel was ineffective. Court received a response from the San Bernardino County Department of Public Social Services (Department). Father filed a reply to the Departments response. The orders are affirmed and the petition for writ of habeas corpus is denied.