CA Unpub Decisions

William D. contends the court erred when it set a hearing to select and implement a permanency plan for his son, Edward K., under Welfare and Institutions Code section 366.26. Court deny the petition.

Defendant Myron Lee Perkins was convicted by a jury of four counts of second degree commercial burglary (Pen. Code, 459) and two counts of forgery ( 470, subd. (a)). Based on these and prior convictions, defendant was sentenced to 13 years in prison. He contends the trial court violated section 654 because it did not stay the execution of sentence on three out of the four burglary charges. Defendant also argues his sentence is unconstitutional for two reasons: First, defendant claims he was denied his right to retained counsel of his choice at sentencing. Second, defendant claims the trial court imposed the upper term for the burglary charged in count 1 based on factors not found true by a jury in violation of the Supreme Courts recent decision in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].
The trial courts imposition of the upper term on count 1 is reversed, and Court remand this matter for further proceedings not inconsistent with this opinion and Cunningham. The judgment is affirmed in all other respects.

Defendant Manuel Larry Falcon (defendant) challenges the sufficiency of the evidence for one of his four assault convictions. Court affirm.

In case No. FVI020225, the District Attorney of San Bernardino County filed a complaint, charging defendant and appellant, David Charles Wheeler, with violating Health and Safety Code sections 11350, subdivision (a) (count 1 possession of cocaine base) and 11550, subdivision (a) (count 2 under the influence of a controlled substance). In case No. FWV035766, the San Bernardino County District Attorney filed another complaint against defendant; it alleged violations of Penal Code sections 666 (count 1 petty theft with a prior) and 459 (count 2 commercial burglary).
Defendant, represented by counsel, pled guilty to (1) possession of cocaine base, count 1, in case No. FVI020225, and (2) petty theft with a prior, count 1, in case No. FWV035766. Thereafter, defendant filed a motion to withdraw the pleas. The trial court denied the motion.
Defendant subsequently appealed, and his application for a certificate of probable cause was denied. Defendant filed an amended notice of appeal challenging his sentence.
Court offered defendant an opportunity to file a personal supplemental brief, and he has not done so. Court have now concluded our independent review of the record and find no arguable issues.
The judgment is affirmed.

Pursuant to a plea agreement, defendant pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, 11378). In return, defendant was granted three years of formal probation on various terms and conditions, including serving 120 days in county jail. On appeal, defendant contends (1) the probation condition requiring him to give the probation officer 24 hours written notice of any change in his pet ownership is unreasonable, and (2) the probation condition requiring him to submit to and cooperate in field interrogations infringes upon his Fifth Amendment constitutional right against self incrimination and is unconstitutionally overbroad and must be modified. Court reject these contentions and affirm the judgment.

Appellant Stacey R. (mother) appeals from a Welfare and Institutions Code section 366.26 order terminating her parental rights to her daughter, E.W. (born in April 2005) (the child). Mother argues that the order should be reversed because the juvenile court abused its discretion in denying her section 388 petition. Court affirm.

Appellant and defendant Rafael Epifanio Salas pled guilty to one count of possession of methamphetamine for sale. (Health & Saf. Code, 11378.) The court granted probation for a period of three years, subject to certain terms and conditions. On appeal, defendant argues that some of the probation conditions are invalid and unconstitutional as applied to him. Court disagree and affirm.

On April 26, 2006, in case No. INF51714, the District Attorney of Riverside County filed a first amended information which charged defendant with three counts of violating Penal Code sections 288.5 (count one) and 288, subdivision (a) (counts two and three). Special allegations were also filed pursuant to sections 1203.066, subdivision (a)(8), section 667, subdivisions (c) & (e)(1), and section 1170.12, subdivision (c)(1).
Court offered the defendant an opportunity to file a personal supplemental brief, which he has not done. Court have now concluded independent review of the record and find no arguable issues.
The judgment is affirmed.

On June 3, 2002, the juvenile court committed C. H. to the California Youth authority (CYA) for life with the possibility of parole for attempting to murder her mother by poisoning. Her commitment was upheld on appeal. (No. F041083) On November 7, 2005, she filed a petition to set aside her commitment to CYA and to terminate the courts jurisdiction, claiming new evidence called into question the scientific conclusions of the prosecutions expert at the adjudication hearing.
The juvenile court denied her petition without conducting a full hearing. C. appeals, claiming the juvenile court applied the wrong standard of review, the juvenile courts findings are untenable, and at a minimum the juvenile court erred in refusing to set the matter for a full hearing. Court reverse the order denying the petition for modification and remand for further proceedings.

On September 5, 1993, respondent Edwin Gregory (Edwin) shot and killed Jack Burrow. He subsequently pled not guilty and not guilty by reason of insanity (NGI) to a charge of murder (Pen. Code,[2] 187) and denied personally using a firearm in commission of the offense ( 12022.5, subd. (a)). Edwin later was found incompetent to stand trial and was committed to Atascadero State Hospital. On May 16, 1994, following restoration of his competency, he pled no contest to second degree murder with the use of a firearm, and submitted the issue of his sanity to a jury. Three psychiatrists Drs. Terrell, Velosa, and Mills testified as expert witnesses for the defense. All opined that Edwin suffered from schizophrenia manifested most significantly by a paranoid delusion that persons acting through Burrow (notably Frank Lisney, a business contact in Russia) were intent on killing Edwin and his family. All three concluded Edwin was suffering from the disorder when he shot Burrow, such that he was incapable of appreciating the wrongfulness of his actions and thus was legally insane. Psychologist and law professor Steven Morse appeared for the prosecution. Morse questioned whether Edwins behavior prior to the shooting could be considered evidence of incipient schizophrenia; instead, he suggested its interpretation as such was the product of retrospective bias. In Morses opinion, Edwin was not manifestly psychotic until after he was jailed. Morse declined to express an opinion about whether, at the time of the shooting, Edwin was legally sane in the sense that he understood the difference between right and wrong; however, he did testify that Edwin was not so detached from reality at the time as to be considered legally insane.
The California Supreme Court dismissed review in Gregory II on July 27, 2005, S110450. With the case again properly before it, the trial court conducted further proceedings on Edwins petition, granted the writ, and deemed the plea of no contest withdrawn. Once again the People appeal. For the reasons that follow, Court reverse and remand the matter to the trial court with directions to reinstate Edwins no contest plea and the judgment and sentence.

Appellants contend that the superior court committed reversible error when it dismissed their petition for a writ of mandate to enforce the California Environmental Quality Act (CEQA)and subsequently denied them relief from the dismissal under Code of Civil Procedure section 47. Court conclude that the superior court correctly interpreted and applied the dismissal provisions contained in section 21167.4. Dismissal of the CEQA petition occurred because appellants did not file a request for hearing within 90 days of filing their petition, as was required by subdivision (a) of section 21167.4. Furthermore, filing a request for hearing on the 91st day did not cure the failure to meet the deadline, even though it was filed before the motion to dismiss. In addition, Court conclude the superior court did not abuse its discretion when it denied relief under the discretionary relief provisions of Code of Civil Procedure section 473. Accordingly, the order dismissing the CEQA action is affirmed.

Appellant urges us to find the lower court abused its discretion when it awarded the Recording Industry Association of America (RIAA) $150,001 in restitution for lost profits. Because Court find a rational basis for the amount ordered, Court affirm.

Appellant (Mother) appeals from the jurisdictional findings and dispositional orders of the juvenile court regarding her three children. She contends there was insufficient evidence to support the petitions allegations and the removal of the children from the home. Court reverse the dispositional orders as to two of the children and affirm the orders in all other respects.

Following a contested jurisdiction hearing, the juvenile court found true an allegation that respondent Aaron R. (Aaron), a minor, committed violations of Vehicle Code section 10851, subdivision (a) (unlawfully driving or taking a vehicle) and Penal Code section 594, subdivision (b)(1) (vandalism causing damages of $400 or more). Following the subsequent disposition hearing, the court, inter alia, declared the latter offense a felony and former offense a misdemeanor; adjudged appellant a ward of the juvenile court; and placed him on probation with various terms and conditions, including that he pay restitution, for which he is jointly and severally liable with his mother, in the amount of $143.01. The court refused the Peoples request to order restitution in the amount of $14,498.44.
The People appeal. The Peoples sole contention on appeal is that the court erred in failing to order appellant and his mother to pay restitution in the amount of $14,498.44. Court reverse the restitution order and remand for further proceedings.