CA Unpub Decisions

The children who are the subject of this dependency proceeding, sisters J.M.P. and J.A.P., were detained from their mother L.P. and her husband, statutorily presumed father Jose P., in February 2005. The girls biological father, Rodrigo R., sought to have his paternity established. The juvenile court (1) found Jose P. was entitled to presumed father status and Rodrigo had not overcome that statutory presumption, (2) on that basis denied Rodrigo family reunification services, and (3) relieved Rodrigos attorney on the ground that he lacked standing to appear. We affirmed those rulings in a previous appeal (B184876 consolidated with B185887). In particular, we held that Rodrigo had not carried his burden under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) to be entitled to presumed father status.
After voluntarily undergoing parenting and domestic violence prevention classes and regularly visiting the children, Rodrigo brought a petition for modification under Welfare and Institutions Code[1] section 388. In the petition, he sought again to be declared a presumptive father under Kelsey S., reunification services, and unmonitored visits with the girls. The juvenile court denied the petition and terminated parental rights. Rodrigo brings this second appeal contending he should be given Kelsey S. status now, where L.P. and Jose have failed to reunify. Court disagree with Rodrigo and affirm the order.

Hans L. appeals the order of wardship (Welf. & Inst. Code, 602) entered following the juvenile courts findings he unlawfully drove or took a vehicle (Veh. Code, 10851, subd. (a)), and drove without a valid license (Veh. Code, 12500, subd. (a)). The juvenile court ordered Hans L. committed to a Camp Community Placement Program for a period of six months. Court affirm the order of wardship.

Jose Jesus Jimenez (Jimenez) appeals the judgment entered following his plea of no contest to second degree burglary of a motor vehicle (Pen. Code, 459) and his admission he previously had served a prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Jimenez to four years in state prison. Court affirm the judgment.

Kevin Marine appeals from the judgment entered following a contested hearing on violation of probation, which was originally granted in conjunction with defendants negotiated plea of no contest to petty theft with a prior theft-related offense (Pen. Code, 666) and admission of two prior convictions under Penal Code section 667.5, subdivision (b), in return for a suspended sentence of five years in state prison and a grant of probation. The petty theft conviction arose from an incident of January 3, 2005, when defendant entered his brothers residence and took a cell phone. The probation violation was based on an incident of April 1, 2006, when defendant beat up his girlfriend. Upon violation of probation, the previously suspended sentence was imposed.
Defendant appealed (People v. Wende (1979) 25 Cal.3d 436, 441442.) Court have examined the entire record and are satisfied that defendants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109110; People v. Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed.

Petitioner Veronica W. is the mother of J. H. The dependency court terminated reunification services, found that the relative placement preference no longer applied, and set the juvenile proceeding for permanency planning hearing. (Welf. & Inst. Code, 366.26.) Petitioner filed a petition for extraordinary writ review. (Cal. Rules of Court, rules 8.450, 8.452, 8.456.) Court deny the writ.

Petitioner Raymond M. seeks extraordinary relief (Welf. & Inst. Code, 366.26, subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile courts order, made at the 12-month review hearing ( 366.21, subd. (e)) held just six weeks before the expiration of the 18-month statutory limit for reunification ( 361.5, subd. (a)(3), 366.22), setting a hearing pursuant to section 366.26 to consider termination of parental rights and implementation of a permanent plan for nine year old O.M., seven year old Z.B., and six year old R.M. Court deny the petition.

Petitioner Jesus P. seeks reversal of the juvenile courts order terminating reunification services and setting the matter for a hearing under Welfare and Institutions Code section 366.26. Real party Department of Children and Family Services (DCFS), joined by the attorney for the minor Angel P., opposes the petition. Court conclude that substantial evidence supports the courts order and deny the writ.

A jury convicted defendant Jennifer Lee Tucker of grand theft (Pen. Code, 487, subd. (a) count I),[1]petty theft ( 484, subd. (a) count IX), nine counts of second degree burglary ( 459 counts IV through VIII, X through XIII), and two counts of receiving stolen property ( 496, subd. (a) counts XIV, XV). The jury acquitted defendant on three other counts [counts II and III (second degree burglary) and XVI (receiving stolen property)]. Sentenced to state prison for an aggregate term of eight years, defendant appeals, contending (1) the trial court erroneously failed to conduct an in camera review of the juvenile dependency file of her stepson, J.T., a crucial witness against her, and erroneously limited cross examination of J.T. and (2) she was improperly convicted of both stealing and receiving some of the same property. Court agree that the trial court erroneously failed to conduct an in camera review of J.T.s dependency file and shall reverse and remand for such review with directions. If remand results in no new trial being granted and judgment is reinstated, counts XIV and XV are reversed because we agree that defendant was improperly convicted of stealing (counts I and IX) and receiving (counts XIV and XV) the same property.

While adjusting a hay load in his truck alongside the road, plaintiff Emilio Morales Zavala (Morales) was struck by a passing pickup truck, suffering devastating injuries. Morales filed suit against the driver of the pickup and other defendants, including James R. Jones, dba JEB Farms (JEB Farms), for negligence. JEB Farms moved for summary judgment, arguing Morales was either a general or special employee of JEB Farms and therefore the exclusive remedy of workers compensation barred his action. The trial court granted the summary judgment motion, finding no triable issue of material fact concerning Moraless status as a special employee. Morales appeals, contending triable issues of fact exist as to whether he operated as JEB Farmss special employee. Court disagree and affirm the judgment.

In a trial to the court sitting without a jury, defendant Andono Leon Morris was convicted of driving in willful or wanton disregard for the safety of persons or property while eluding a pursuing peace officer (count one) and of driving a vehicle involved in an injury accident and thereafter failing to aid the injured person and give pertinent information to the person and an officer (count two). The court found defendant had two prior serious felony convictions for purposes of the three strikes law and had served two prior separate prison terms. He was sentenced to state prison for 25 years to life plus two years for the prior prison term enhancements.
On appeal, defendant contends his conviction on count two is not supported by sufficient evidence that he knew his passenger was injured, (2) the imposition of concurrent prison terms for counts one and two violated Penal Code section 654, (3) 27 years to life is cruel and/or unusual punishment, (4) the court abused its discretion in denying his motion to strike one of his prior serious felony convictions for purposes of sentencing ( 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (hereafter Romero), and (5) the amended abstract of judgment must be corrected. Court affirm the judgment and order the court to correct the abstract.

After a jury found that defendant Bruce L. Clotfelter is a sexually violent predator (SVP), the court recommitted him to the custody of the state Department of Mental Health for an additional two years.
Defendant appeals and raises the following six contentions: (1) the court prejudicially erred in excluding testimony of two defense witnesses; (2) the court erred in admitting evidence that defendant previously had been committed as an SVP; (3) the court erred by admitting evidence of Atascadero State Hospitals conditional release program; (4) the court erred in refusing defendants pinpoint jury instruction; (5) the court erred in allowing a clinical psychologist at Atascadero to testify as an expert witness regarding castration; and (6) the courts cumulative errors require reversal. Disagreeing with these contentions, Court affirm the judgment.

A jury found defendant Javier Virelas Lopez guilty of attempted murder (Pen. Code, 664, 187, subd. (a)),[1]discharging a firearm at an occupied vehicle ( 246), assault with a firearm ( 245, subd. (a)(2)), transportation of an assault weapon ( 12280, subd. (a)(1)), and being a felon in possession of a firearm ( 12021, subd. (a)(1)). The jury also found true special allegations that defendant committed several of the offenses for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), used and discharged a firearm ( 12022.53, subd. (d), 1203.06, subd. (a)(1), 12022.5, subd. (a)), and personally inflicted great bodily injury ( 12022.7, subd. (a)). The court sentenced defendant to an aggregate prison term of 57 years to life.
On appeal, defendant contends there was insufficient evidence to support the true findings regarding gang enhancements under section 186.22, subdivision (b)(1). Court affirm the judgment.

The 12 year old victims allegation that her brother in law raped her was corroborated by forensic evidence including three acute tears in her vagina, two of which were bleeding, and DNA evidence taken from defendant Donny Deshawn Smiths penis and boxer shorts. Rejecting the defense that there had been an accidental transfer of the victims genetic material from her vagina to his penis and boxer shorts, the jury convicted defendant of two counts of forcible lewd and lascivious acts upon a child under the age of 14 (Pen. Code, 288, subd. (b)(1)) and one count of forcible rape (Pen. Code, 261, subd. (a)(2)). The Attorney General concedes the abstract of judgment must be corrected. Finding no merit to defendants claim of evidentiary errors, Court order the abstract corrected but affirm in all other respects.

As a result of his involvement in an offense in which another individual shot at two rival gang members, defendant James Willard Whitfield pled no contest to attempted murder and admitted an enhancement for having served a prior prison term. In exchange for his plea, the remaining charges and enhancements, as well as another case, were dismissed with the understanding that defendant would be sentenced to eight years in state prison. He was sentenced in accordance with the plea agreement.
Defendant appeals, claiming the trial court erred by failing to make adequate inquiry during two Marsden[1]hearings as to whether there had been an irreconcilable breakdown in his relationship with his trial attorney. Court agree with the People that defendants contention is not cognizable on appeal absent a claim that his plea was not voluntarily and intelligently entered. Accordingly, Court dismiss the appeal.