CA Unpub Decisions

C. G., mother of the minor, appeals from orders of the juvenile court terminating her parental rights and denying her petition for modification. (Welf. & Inst. Code, 366.26, 388, 395 [further undesignated statutory references are to this code].) Appellant contends the court abused its discretion in denying her petition for modification. Court affirm.

In February 2003, a 25-year-old, 2,000 pound marquee sign located at a shopping center owned by Arena Group 2000, L.P., the City of San Diego and Elizabeth Nolan dba U.R.C. Management (collectively, Arena), fell and injured the plaintiffs, who were walking beneath it. The plaintiffs filed personal injury actions against Arena Group and others and Arena in turn cross-complained against various persons for indemnity, contending that their acts or omissions contributed to the accident; Sign Ad Corporation (Sign Ad) was one of those cross defendants.
Arena appeals an order granting Sign Ad's motion for summary judgment and the judgment thereon, contending that the superior court erred in concluding that Sign Ad did not owe it a duty of care because its evidence was sufficient to permit an inference that Sign Ad disturbed the sign's braking system during its inspection of the sign in 1996. Court disagree that Arena's evidence permitted such an inference and affirm.

A jury convicted Ronald Robles of four counts of first degree residential burglary (Pen. Code, 459, 460).[1] The trial court found that Robles had suffered one prior serious felony conviction and one prior strike, and sentenced him to 15 years in prison.
Robles appeals, contending that the trial court: (i) abused its discretion in denying his new trial motion, which contended that newly discovered evidence necessitated a retrial; (ii) erroneously ruled that the prosecution would be permitted to impeach him if he testified with two prior convictions that were more than a decade old; (iii) and erroneously ordered that he pay restitution for the benefit of a private insurer. Court conclude that these contentions are without merit, and affirm.

A jury convicted Santiago Oviedo Mancilla of numerous counts of selling and transporting methamphetamine and possessing methamphetamine for sale. He contends the trial court abused its discretion by discharging a juror for bringing marijuana into the courthouse during the trial. The judgment is affirmed.

A jury convicted Eddy Fabian Lopez of assault by means of force likely to produce great bodily injury and resisting a peace officer. Lopez appeals, contending the trial court incorrectly responded to a jury note. Court find no prejudicial error warranting reversal of the conviction and affirm the judgment.

A jury convicted Fezell Robinson, Jr. of possession of cocaine (Health & Saf. Code, 11350, subd. (a); count 1), with resisting an executive officer (Pen. Code, 69; count 2), and of possessing narcotics paraphernalia (Health & Saf. Code, 11364; count 3). In a bifurcated proceeding, the trial court found true allegations that Robinson had suffered a prior prison term ( 667.5, subd. (b)) and four serious felony strike convictions under the Three Strikes law ( 667, subds. (b)-(i), 668, 1170.12). The court sentenced Robinson to prison for a total term of 26 years to life.
Robinson appeals, contending he was denied his right to due process by the court's failure to instruct the jury that resisting an executive officer required a specific intent and his life term for possession of cocaine base constitutes cruel and unusual punishment. Finding no merit in either assertion, Court affirm.

Blanca L. appeals an order of the juvenile court denying her request to have her minor son, Alejandro S., placed with her under Welfare and Institutions Code[1]section 361.2, subdivision (a) because she was a non-offending, noncustodial parent. Blanca challenges the sufficiency of the evidence to support the court's finding that placing Alejandro with her would be detrimental to him. Court affirm the order.

In a third amended information, Tony Armster, Manuel Varela, and Reina Reyes were charged with one count of conspiracy to commit murder (Pen. Code, 182, subd. (a)(1); count 1), five counts of willful, deliberate, and premeditated attempted murder ( 664, 187, subd. (a); counts 2-6), one count of assault with a firearm ( 245, subd. (a)(2); count 7), and one count of discharging a firearm at an inhabited dwelling ( 246; count 8). Reyes was also charged with one count of making criminal threats. ( 422; count 9.) As to Armster and Varela, various firearm enhancements within the meaning of sections 12022.53, subdivisions (c) and (d) and 12022.5, subdivision (a) were alleged in counts 1 through 8.[2] As to Reyes, it was alleged a principal was armed with a firearm in counts 1 through 6 and 8, within the meaning of section 12022, subdivision (a)(1). Reyes further claims that her consecutive sentence on count 7 (assault with a firearm) should have been stayed in view of her consecutive sentence on count 8 (shooting an inhabited dwelling). Lastly, defendants claim the trial court abused its discretion in imposing consecutive sentences on all counts, and their consecutive sentences and Reyess upper term sentence on count 8 violate their right to a jury trial under Blakely. Court find each of these claims without merit.
Accordingly, Court modify the judgments to stay defendants sentences and enhancements on count 1, the conspiracy to commit murder count. In all other respects, Court affirm the judgments.

The Western Municipal Water District (Water District) condemned a permanent easement to real property, located on Jefferson Street in Riverside, for the purpose of constructing a portion of an underground pipeline connecting to a canal pump station. The property owner, Atomic Investments, Inc. (Atomic), disputes the existence of a public interest and necessity to acquire the easement.
On appeal, Atomic contends the trial court erred when it failed to dismiss the case after finding the Water District had possibly violated the Ralph M. Brown Act (Gov. Code, 54950 et seq.) by meeting without notice to Atomic. As additional grounds for dismissal, Atomic complains it did not receive access to pubic records concerning the project in violation of the California Public Records Act. (Gov. Code, 6250 et seq.)
Atomic contends the appellate court should conduct an independent review and reverse the judgment. (City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1212.) The Water District maintains the proper standard of review is substantial evidence. (San Bernardino County Flood Control Dist. v. Grabowski (1988) 205 Cal.App.3d 885, 898.) Under either standard of review, Court affirm.

A jury convicted defendants Mario Lopez Delcid and James Patrick Salas for their involvement in a drug deal with an undercover officer. The People charged defendants with selling methamphetamine (count 1) (Health & Saf. Code, 11379, subd. (a)) and conspiring to sell methamphetamine (count 2) (Pen. Code, 182, subd. (a)(1)). The jury convicted Salas of the crime charged in count 1 and the lesser-included offense of attempting to sell methamphetamine (Pen. Code, 11379, 664) in count 2. The jury convicted Delcid as charged. Salas admitted having served two prior prison terms (Pen. Code, 667.5, subd. (b)[1]) and Delcid admitted having two prior felony drug convictions (Health & Saf. Code, 11370.2, subd. (c)). The trial court sentenced Salas to five years and Delcid to nine years. On appeal, Salas raises the following claims: the evidence was insufficient to support his conviction for conspiracy; the trial court erred in giving instructions on conspiracy; and the attempt crime was necessarily included in the conspiracy charge or, alternatively, both crimes were committed with the same objective and therefore the sentence in count 1 should have been stayed under section 654. In addition to joining in Salass arguments, Delcid also argues that the trial court erred in instructing the jury on conspiracy by giving a modified version of CALJIC No. 2.10. For the reasons stated below, we reject defendants claims of insufficient evidence and instructional error. Court agree, however, with both Salas and the People, that the trial court should have stayed the sentence in count 1 under section 654. Court affirm in part and reverse in part.

A jury found defendants guilty as charged of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a); count 1), possession of methamphetamine for sale ( 11378; count 2), possession of cocaine ( 11350, subd. (a); count 3), and transportation of cocaine ( 11352, subd. (a); count 4). Juarez admitted he had two prior narcotics-related convictions within the meaning of section 11370.2. Juarez was sentenced to 10 years in prison.[2] Radilla was granted probation and given credit for time served. Defendants appeal, and join each others contentions.
First, defendants contend the trial court erroneously denied their Batson/Wheeler[3]motions alleging the prosecutor improperly excluded six Hispanics from the jury on the basis of race or ethnicity. We conclude that the trial court fully and properly considered the prosecutors stated reasons for excluding the six Hispanic jurors; that substantial evidence supports the courts conclusion that the prosecutors stated reasons were race-neutral and genuine; and that defendants have failed to demonstrate group bias based on a comparative analysis of the prosecutors stated reasons for excusing the six Hispanic jurors with similar characteristics of unexcused jurors. Second, Radilla contends the trial court erroneously admitted into evidence at trial statements he made at the police station after waiving his Miranda[4] rights. We reject this contention, because the totality of the circumstances show the statements were voluntary and therefore admissible.
Finally, Radilla claims the court violated his privacy rights under the federal and state Constitutions by ordering him to submit to DNA testing. (Pen. Code, 296.) Court reject this claim, as have numerous other courts. Accordingly, Court affirm the judgments.

A jury convicted defendant of driving under the influence, causing injury (Veh. Code, 23153, subd. (a)), driving with a blood alcohol level of 0.08 percent or greater (Veh. Code, 23153, subd. (b)) and leaving the scene of an accident (Veh. Code, 20001, subd. (a)), during all of which he inflicted great bodily injury on the victim. (Pen. Code, 12022.7, subd. (a).) In bifurcated proceedings, he admitted suffering two felony convictions for which he served prison terms (Pen. Code, 667.5, subd. (b)) and the trial court found that he suffered a third.[1] He was sentenced to prison for 17 years 4 months, and appeals, claiming the trial court erred in allowing him to represent himself, in excluding evidence and in sentencing him. After the case was fully briefed, the United States Supreme Court decided Cunningham v. California (Jan. 22, 2007, No. 05-6551) U.S. [2007 D.A.R. 1003]. Therein, the court held that the California determinate sentencing law violates a defendants Sixth and Fourteenth Amendment rights to trial by jury by allowing the trial court to impose the upper term based on facts found by it, applying a preponderance of the evidence standard.
Under the compulsion of Cunningham, Court reverse the sentence for count 1 and remand the matter to the trial court to permit the People to have an opportunity to present what they believe are factors justifying the imposition of an upper term to a jury. In the event they opt not to do so, or if a jury does not find such factors, the trial court shall resentence defendant, imposing either the mid or low term for driving while under the influence, causing injury (count 1).
Court reject defendants remaining contentions and affirm his convictions and sentences on counts 2 and 3 and the prior convictions/prison enhancments.

In March 2006, half sisters Anna C. (born December 1999) and Kayla K. (born April 2003) were declared dependents of the juvenile court, after which Anna was placed in foster care and Kayla was placed, pursuant to Welfare and Institutions Code section 361.2, with her noncustodial nonoffending father, Donald K. Holly K., the girls mother, appeals the courts jurisdictional findings and dispositional orders, contending they are not supported by substantial evidence. She also argues the court erred in failing to make a finding that placing Kayla with Donald would not be detrimental to Kaylas emotional health and well-being and that, in any event, the sibling bond between Kayla and Anna constitutes substantial evidence of detriment so as to preclude Kaylas placement with Donald. Further, she contends the court failed to recognize that representation of the two siblings by the same trial counsel constituted a conflict of interest, and erred in not requiring the Department of Public Social Services (DPSS) to rectify errors and omissions in the notices it served pursuant to the Indian Child Welfare Act (ICWA). Finding no merit to any of her contentions, Court affirm.

A jury convicted defendant of one count of robbery, one count of dissuading a witness, and the personal use of a firearm in committing these offenses, all of which occurred in March 2001. (Pen. Code, 211; 136.1, subd.(c)(1); 1192.7, subd. (c)(7) and (8); 12022.5, subd. (a); and 12022.53, subd. (b).)[1] Three other counts were dismissed. All the crimes occurred in the same general vicinity in Corona.
The court sentenced defendant to a total prison term of 13 years, the middle term of three years on count 1 for robbery plus an additional 10 years for the personal firearm use. The court imposed a concurrent three-year sentence on count 2 and stayed the 10-year firearm sentence.
Defendant appeals, contending the trial court erred by allowing testimony from Danny Verdugo regarding defendants suspicious conduct at a Shell station located near the robbery sites. In a related claim, defendant charges prosecutorial error. Additionally, defendant challenges the courts ruling denying his mistrial motion. Finally, defendant also maintains the trial court should have stayed the three-year sentence on count 2 rather than imposing it concurrently with the sentence on count 1. Court reject all defendants contentions and affirm the judgment.