CA Unpub Decisions

Defendant was convicted by jury trial of various crimes arising from two separate shootings of members or associates of rival gangs. On appeal, defendant contends (1) insufficient evidence supported the conviction for shooting at an inhabited vehicle because he opened the door to the vehicle before shooting into it; (2) insufficient evidence supported the gang enhancements; and (3) his sentence violated Blakely v. Washington (2004) 542 U.S. 296 and its progeny. In light of the recent case of Cunningham v. California (2007) 549 U.S., 127 S.Ct. 856 (Cunningham), Court find merit in defendants third claim. Court therefore vacate the sentence on count 7 and remand for resentencing. Court affirm in all other respects.

In Fresno County Superior Court case No. F05906506 1 (case No. 506-1), appellant Kirk House pleaded no contest to felony embezzlement (Pen. Code, 503). Appellant subsequently moved to withdraw his plea, and the court denied the motion. Based on that plea, the court found appellant guilty of the offense and, further, that he was in violation of probation granted in a previous case, Fresno County Superior Court case No. F04900752 7 (case No. 752 7), in which appellant had been convicted of petty theft after having suffered a prior theft related conviction ( 666). In each case, the court imposed a two year term and ordered that the terms run concurrently. The court reserved the issue of restitution. Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant himself, in response to this courts invitation to supplemental briefing, has submitted a brief in which he argues, as best we can determine, that the court erred in denying appellants motion to withdraw his plea. Court affirm.

A jury convicted appellant Oscar Vielma of second degree burglary (Pen. Code, 459; 460, subd. (b)). In a separate proceeding, the court found true enhancement allegations that appellant had served three separate prison terms for prior felony convictions (Pen. Code, 667.5, subd. (b)). The court imposed a prison term of five years, consisting of the three-year upper term on the substantive offense and one year on each of the three prior prison term enhancements.
On appeal, appellant contends (1) the court erred in denying appellants motion for a continuance, and (2) he was denied his rights to trial by jury and due process of law under the United States Constitution because the court imposed the upper term based on circumstances in aggravation that were not found by a jury beyond a reasonable doubt. Court affirm.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450 8.452 (rule)) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing as to her daughter, S. Court conclude her petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court dismiss the petition as facially inadequate.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 (rule)) to vacate the order of the juvenile court issued at a post-permanency review hearing (Welf. & Inst. Code, 366.3) setting a section 366.26 hearing as to her son, R.J. 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 order of the juvenile court issued at a post-permanency review hearing (Welf. & Inst. Code, 366.3) setting a section 366.26 hearing as to his son, R.J. Court deny the petition.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing as to his son, C. We conclude his petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court dismiss the petition as facially inadequate.

The County of Orange appeals from an order denying its motion for a determination that Troy Michael Younge is the legal father of 15 year old T., and obligating him to continue paying child support for her. The County argues the trial court erred because Younge qualified as T.s legal father under both the doctrine of paternity by estoppel, and the presumption created by Family Code section 7611, subdivision (d). Court are unpersuaded. None of the cases Court have found applies the doctrine of paternity by estoppel to an alleged father whose conduct was based upon the honest, but incorrect, belief that he actually was the childsnatural father. As for Family Code section 7611, subdivision (d), it applies only to one who both receives the child into his home and openly holds out the child as his natural child. In this case, it is undisputed that Younge never received T. into his home. Consequently, the order is affirmed.

Keith Howard Odom pleaded no contest to six counts of second degree burglary, two counts of attempted second degree burglary, one count of petty theft with a prior conviction, and one count of possession of a controlled substance. (Pen. Code, 459 460, 664 459, 666, Health & Saf. Code, 11377.) He also admitted one prior strike conviction and four prison prior convictions. (Pen. Code, 1170.12, 667, subds. (b)-(i), 667.5, subd. (b).) Appellant entered his no contest pleas in exchange for a sentence of 20 years in state prison. At sentencing, he was sentenced to 20 years in state prison and ordered to pay victim restitution as set forth in the probation report. The total amount of restitution ordered was $42,090.00.
Appellant contends that he "must be permitted to withdraw his plea because $42,000 worth of victim restitution fines were not a part of his plea agreement and because he was misadvised as to the consequences of his plea." Court affirm.

A jury convicted defendant Robin Rinaldo Lammers of multiple counts of grand theft and related criminal violations of the Civil Code stemming from the marketing and sale of automobile engine distributorships. The trial court sentenced defendant to five years in prison, which involved the trial courts reliance on aggravating facts so as to impose an upper term and consecutive sentences. On appeal, defendant contended that the trial courts imposition of the upper term violated his state and federal constitutional rights to have his sentence based only on facts found by a jury. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely).) In an opinion filed on January 11, 2007, we affirmed the judgment based upon the then controlling authority. (People v. Black (2005) 35 Cal.4th 1238.) We thereafter granted defendants petition for rehearing to consider the effect of Cunningham v. California 549 U.S.[127 S.Ct. 856] [2007 U.S. LEXIS 1324] (Cunningham). Court reverse the judgment and remand for resentencing.

Reyna M. appeals from an order terminating her parental rights to her daughter D. pursuant to Welfare and Institutions Code section 366.26.[1] Appellant contends: (1) the juvenile court erred by failing to appoint a guardian ad litem for her; and (2) there was insufficient evidence to support the juvenile courts finding that D. was adoptable. Court find no error and affirm.

Defendant appeals from his conviction after a plea of no contest to carjacking, possession of a deadly weapon, and evading arrest and certain sentencing enhancements including prior convictions. He challenges only the trial courts denial of his motion to strike one of the prior convictions. The trial court did not abuse its discretion and Court affirm.

In their second appeal in this dependency matter, Jamie J. (Mother) and Louis B. (Father), parents of Louis B., Jr. (Lou), born in 1999, and Justice B. (Justice), born in 2003, separately challenge the order terminating their parental rights to their children and selecting adoption as the permanent plan. They contend the juvenile court engaged in judicial misconduct and also abused its discretion in restricting their contact with their children and allowing Lous therapist to work exclusively with his foster mother. Court affirm the juvenile courts order.

Holly W. (born in June 2004) was made a dependent of the Del Norte County Juvenile Court in October 2005. (Welf. & Inst. Code, 300.) Pursuant to rule 8.452 of the California Rules of Court, her mother, Rachel W., has filed a petition for extraordinary writ review, challenging the juvenile courts denial of her demurrer to the section 387 supplemental petition and its order setting a hearing to select and implement a permanent plan pursuant to section 366.26. Court deny the petition.