CA Unpub Decisions

Defendant was convicted by jury trial of second degree murder for the shooting of Leland Terrell. On appeal, he contends that the prosecutor committed six instances of misconduct. Court affirm the judgment.

On July 6, 2004, appellant, threw himself against the door to his jail cell causing the latch to come out of the wall and the door to open. The county initially invested $169 to repair the door but eventually had to replace it at a cost of $2,359. On October 1, 2004, Defendant was convicted of felony willful and intentional damage to jail property in excess of $400 (Pen. Code, 4600, subd. (a)). On November 8, 2004, the court sentenced Franklin to 25 years to life.
Following independent review of the record we find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

Jennifer G. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her son, I.R. She contends the court should have found that termination would substantially interfere with her sons sibling relationship and thus would be detrimental to him. On review, Court disagree and affirm.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter M. Court deny the petition.

Defendant was convicted of first degree burglary (count 1; Pen. Code, 459, 460, subd. (a); all further statutory references are to this code unless otherwise specified) and two counts of first degree robbery while acting in concert with two or more others (counts 2 and 3; 211, 212.5, subd. (a), 213, subd. (a)(1)(A)). The jury found true that he was vicariously armed ( 12022, subd. (a)(1)); the court found true a prior strike conviction ( 667, subds. (a)(1), (d) & (e), 1170.12, subd. (b)) and a prior prison term allegation ( 667.5, subd. (b)).
On appeal, defendant claims the evidence is insufficient. He also argues the court erred in denying a motion to exclude a witnesss identification of his car, admitting a statement made before he received a Miranda warning (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), and refusing to give a jury instruction that the prosecution had not timely disclosed evidence. He additionally maintains his counsel was ineffective for failing to challenge a seated juror. Finding none of these claims meritorious, Court affirm.

Defendant challenges his conviction for second degree robbery. He first contends the prosecutor committed prejudicial misconduct during closing argument. Defendant has forfeited this argument because he did not object to the prosecutors argument or request an admonition from the trial court. Even if we were to reach the merits, we would conclude (1) the closing argument did not constitute misconduct, and (2) even if there was misconduct, there was no prejudice to defendant.
Defendant next argues substantial evidence did not support the jurys verdict. We also reject this argument. The victim of the robbery clearly identified defendant after the robbery, in a photographic lineup, and at trial. A police officer who had had numerous contacts with defendant also identified him from the stores security videotape. Therefore, Court affirm.

Appellant sued respondent, the guardian of the estates of Coronados three children, for negligence and embezzlement related to Chaddocks management of trust property that belonged to the children. The trial court sustained Chaddocks demurrer to Coronados complaint without leave to amend and dismissed the action.
On appeal, Defendant contends that the court erred when it sustained the demurrer on the ground that Coronado did not have standing to sue, that the court erred when it failed to state its reasons for sustaining the demurrer without leave to amend in its order, and that the court abused its discretion when it failed to grant leave to amend. Coronado also argues that the court abused its discretion when it failed to rule on his motion for change of venue and when it failed to rule on Chaddocks motion for a protective order. Court find no error and affirm the judgment of dismissal.

Defendant was convicted by plea in three different felony cases. He was given consecutive prison sentences and ordered to pay certain fines and fees. On appeal, defendant asserts two sentencing errors: (1) he challenges the $6,400 restitution fund fine imposed in one case, and (2) he argues for additional sentence credits in another. Court reject both of defendants challenges and affirm.

Wendy T., mother of three year old Zachary T., appeals from the juvenile courts order terminating her parental rights. The sole issue on appeal is the failure to provide notice under the Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.) (ICWA). The Orange County Social Services Agency (SSA) concedes ICWA notice was not given, but argues the error was harmless since notice was given in a separate dependency proceeding involving Zacharys older siblings. Based on the record before us, Court cannot conclude the failure to provide ICWA notice was harmless, since we do not know that no additional information regarding Zacharys Indian heritage would have been provided, which was not provided in connection with the ICWA notice for his siblings. Therefore, Court reverse and remand with directions to the juvenile court to ensure proper ICWA notice is given. If, after notice is given, there is no response showing that Zachary is an Indian child, the order terminating parental rights shall be reinstated.

On August 2, 2005, for some unknown reason, defendant went berserk. He drove a truck (which did not belong to him) toward victim Kathern Rodriguez; according to Rodriguez, he hit her with it, knocking her down. He then deliberately smashed the truck into a parked car. Next, he got out of the truck, got a hammer, and ran toward Rodriguez, who was hiding behind a shipping container. Because she turned and ran, she did not actually see him swing the hammer, but it hit the shipping container, close enough to make her ears ring. A jury found defendant guilty of unlawful taking or driving of a vehicle. (Veh. Code, 10851, subd. (a).) It found him not guilty of assault with a deadly weapon, to wit, [h]ammer (Pen. Code, 245, subd. (a)(1)), but guilty of the lesser included offense of simple assault (Pen. Code, 240). It was unable to reach a verdict on another count of assault with a deadly weapon, to wit, [m]otor [v]ehicle, and this count was dismissed. Defendant admitted one 1-year prior prison term enhancement (Pen. Code, 667.5, subd. (b)) and one strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12). As a result, he was sentenced to a total of four years in prison.
Defendant contends there was insufficient evidence that he swung the hammer toward Rodriguez to support his conviction of assault. He also contends that the trial court misunderstood a question from the jury, which was confused about whether it had to find that defendant swung the hammer toward Rodriguez, and, as a result, it failed to respond adequately to the question. Court hold that there was sufficient evidence that defendant did swing the hammer toward Rodriguez. Court also hold that any error in the trial courts response to the jurys question was waived by defense counsels failure to object.

Jay Wynn and his daughter Dalya Wynn appeal from a trial court judgment holding them liable for fraud, negligence, and violations of the Home Equity Sales Contract Act, Civil Code section 1695 et seq. (HESCA), and the Elder Abuse Act, Welfare and Institutions Code, section 15600 et seq. Appellants contend there is insufficient evidence to support the judgment. Court affirm.

Defendant appeals his conviction by jury trial of three counts of attempted murder (Pen. Code, 664, 187, subd. (a)), five counts of assault with a deadly weapon ( 245, subd. (a)(1)), first degree burglary ( 459, 460, subd. (a)), infliction of unjustifiable physical pain or mental suffering on a child ( 273a, subd. (a)), and second degree burglary ( 459, 460, subd. (b)). The jury found true the great bodily injury enhancement allegations charged in connection with the three attempted murder counts and four of the assault with a deadly weapon counts, and found that defendant was sane at the time the offenses were committed.
Defendant contends the sanity finding was not supported by substantial evidence, defense counsel provided ineffective assistance, the courts insanity instruction was erroneous and the court committed Blakely error (Blakely v. Washington (2004) 542 U.S. 296). Court agree that Blakely error was committed and remand for resentencing.

Defendant was convicted of first degree murder and attempted murder. On appeal, he alleges a multitude of errors, including instructional error, wrongful admission of evidence, and cumulative error. Court affirm.

Appellant appeals from his conviction of second degree murder. He claims that the court erred in failing to conduct an in camera investigation of a witnesss invocation of her Fifth Amendment rights and in failing to grant judicial immunity to that witness. He also argues that the court erred in failing to instruct the jury, sua sponte, with CALJIC No. 3.02. Court affirm.