CA Unpub Decisions

Appellant was originally charged with 58 separate counts of burglary, forgery, and larceny. Following the Peoples case in chief, the trial court dismissed 13 of the 58 counts. The jury found appellant guilty of six counts of first degree burglary (Pen. Code, 459), 20 counts of grand theft personal property ( 487, subd. (a)), three counts of forgery ( 475, subd. (c)), seven counts of making, drawing, uttering, or delivering a nonsufficient fund check ( 476a, subd. (a)), and two counts of misdemeanor petty theft ( 484, subd. (a)). The trial court sentenced appellant to a total prison term of 13 years 4 months.
Appellant contends there is insufficient evidence to support the burglary convictions in four counts and the grand theft convictions in three counts. Appellant also contends the trial court erred when it failed to instruct with CALJIC No. 17.01, when it imposed the upper term on one count, and when it failed to stay sentence on numerous counts, pursuant to section 654, for crimes committed as part of an indivisible continuous course of conduct. Court agree only with appellants last contention, and in all other respects affirm.

Appellant was fired from her position as a customer account representative with respondent Merced Irrigation District (the District). After a two-day administrative hearing, the hearing officer upheld the termination and the District adopted the hearing officers findings. Appellant then filed a petition for writ of mandate in the superior court, arguing the termination was not supported by the evidence and, in the alternative, she should have been demoted as a lesser disciplinary action. The court denied the petition. On appeal, she contends the petition was improperly denied, the District did not have just cause to terminate her, and the District should have demoted her as an alternative disciplinary action. The judgment is affirmed. Costs on appeal to respondents.

On December 16, 2004, appellant, entered into a plea bargain in case Nos. F04901731 - 0 and F04901836-7. In case No. F04901731- 0, Ball pled no contest to assault with a firearm (Pen. Code, 245, subd. (a)(2)) and admitted a gang enhancement ( 186.22, subd. (a)(2)), a personal gun use enhancement ( 12022.5, subd. (a)(1)), and allegations that he had a prior conviction within the meaning of the three strikes law ( 667, subd. (b)-(i)). In case No. F04901836 - 7, Ball pled no contest to arson of an inhabited building ( 451, subd. (b)). The agreement also provided that Ball would receive a prison term of 17 to 19 years.
On appeal, Ball contends: 1) his sentence must be reduced or he must be permitted to withdraw his plea because his sentence contains three unauthorized components; and 2) the court erred by not giving him actual custody credit for his custody time from the date of his original sentencing to the date of his resentencing. Court find merit to his second contention and that his first contention is not cognizable on appeal. In all other respects, Court affirm.

Ronald B. appeals from an August 26, 2006, order terminating his parental rights (Welf. & Inst. Code, 366.26). On appeal, Ronald contends the court erred in failing to acknowledge his arguments that the court erred in denying his petition to change earlier orders due to changed circumstances ( 388) and termination of parental rights would be detrimental to the child based on the beneficial relationship exception ( 366.26, subd. (c)(1)(A)). Court disagree and affirm the judgment.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 [formerly rule 38-38.1]) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing as to her daughter E. Court grant the petition.

The prosecution charged defendant with residential burglary. Defendants first trial ended in a mistrial when the jury failed to reach a verdict. After a second trial, the jury found defendant guilty as charged, and the court sentenced him to state prison. Defendant contends the trial court erred by admitting new testimony from one witness at his second trial, its handling of a second witness change in her trial testimony from the first trial, and by its further instruction of the jury during deliberations. Court find no prejudicial error and affirm the judgment.

Defendant appeals from a judgment after a jury convicted him of numerous offenses arising out of a crime spree committed from March 2004 to June 2004. Bergeron argues he received ineffective assistance of counsel, there was instructional error, insufficient evidence supported two of his convictions and one of his prior convictions, and there were sentencing errors. Court agree there was insufficient evidence to support the finding on his prior conviction. Court affirm the convictions and remand for further proceedings.

Following a contested jurisdiction hearing, the juvenile court sustained a petition alleging Christian P., a minor, had committed four aggravated assaults for the benefit of a criminal street gang. The minor contends insufficient evidence supports the courts findings he participated in the attacks or that the assaults were likely to produce great bodily injury. Court agree the evidence was insufficient to support the finding on count 1 that the assault was committed with force likely to inflict great bodily injury and modify the order to reflect the minor committed the lesser included offense of simple assault. Court also agree with the minors contention the court failed to specify the maximum period of confinement as required by Welfare and Institutions Code section 726, subdivision (c) and remand the case for the court to specify that term in the minutes. In all other respects, the order is affirmed.

Defendant was charged by information with second degree robbery in violation of Penal Code sections 211 and 212.5, subdivision (c). Defendant pled not guilty. A jury found defendant guilty, as charged, of second degree robbery. The court sentenced defendant to state prison for the midterm of three years. Defendant appeals.
Substantial evidence supports the finding that defendant drove the getaway car at the gas station robbery. However, the court erred in instructing the jury on the elements of aiding and abetting. It gave conflicting instructions that would have permitted the jury to find that defendant committed an act of aiding and abetting a robbery without finding that she had the requisite intent. It has not been shown beyond a reasonable doubt that the error did not contribute to the jurys verdict. Accordingly, Court reverse and remand.

In an earlier opinion (People v. Stubbs (Sept. 15, 2005, G032482) [nonpub. opn.]), Court affirmed Tony Stubbss convictions on two counts of carjacking (Pen. Code, 215, subd. (a)), but accepted the Attorney Generals concession and reversed a finding that defendant suffered a strike under the Three Strikes law for a prior juvenile delinquency adjudication for carjacking in 1996. The prosecutor elected not to retry defendant on the prior conviction allegation, and the trial court resentenced defendant on January 6, 2006. As it had at the original sentencing, the court imposed the upper nine year term for carjacking on count one, citing several aggravating factors relating to defendant and the crime. (Cal. Rules of Court, rule 4.421(b)(1) [defendant engaged in violent conduct indicating a serious danger to society]; rule 4.421(b)(2) [defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness]; rule 4.421(a)(1) [crime involved threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness].) The court added a consecutive 20 month term for count two.
The trial court imposed an upper term sentence on count one based on several aggravating sentencing factors that were not tried to and found by a jury. Based on Cunningham, Court reverse defendants sentence and remand the matter for resentencing.

The County of Orange (the County) appeals from the trial courts order granting, based on principles of fairness, Kip Robert Dishmans second motion to vacate a stipulation and order establishing paternity and requiring child support of Frank C. The County argues the court erroneously granted the motion because: (1) Family Code section 7645 et seq., provides the comprehensive statutory framework for vacating a paternity judgment; (2) the principle of res judicata prevents Dishman from relitigating his motion; (3) there was no evidence of extrinsic fraud; and (4) the County, despite public policy concerns to the contrary, is required to follow existing law. Dishman did not file a respondents brief.
As Court explain below, Court conclude the trial court abused its discretion in granting the motion to vacate based on principles of fairness because section 7645 et seq., provides the comprehensive statutory framework for vacating a paternity judgment, Dishman did not file his motion within the statutorily required period, and there was no evidence of extrinsic fraud. Court reverse the order.

Rosemarie Smith is the conservator of the estate of Virginia Reams. Kathy Maluy is the conservator and administrator for the estate of Carrol Reams. She is also Carrols niece. This appeal concerns a dispute over the sale proceeds of a home Virginia and Carrol purchased in Oregon. The home was sold after Carrols death. The court granted Smiths petition for an order directing Maluy to transfer the sale proceeds to Virginia. On appeal, Maluy seeks reversal based on her contention the petition was barred by the one year statute of limitations found in Code of Civil Procedure section 366.2. Court find her argument lacks merit and affirm the order.

Defendant appeals from a judgment following his guilty plea to second degree commercial burglary and possession of a controlled substance. Defendant argues the trial court erred by denying his motion to suppress evidence discovered by the police while conducting an inventory search of his truck.
The Attorney General concedes the trial court should have granted defendants motion. Court agree. The police did not have authority to impound defendants truck, which was parked on private property. Therefore, the warrantless search conducted incident to impounding the truck was unreasonable, and the evidence should have been suppressed. Court reverse the judgment based on defendants guilty plea, and remand the matter with directions to the trial court to grant the motion to suppress. Defendant may then, if he chooses, move to withdraw his guilty plea.

Petitioner appeals from an order denying her petition to enforce a contract to divide the estate of Theresa Gray. She contends the court erred when it found there was insufficient consideration for the agreement. Court agree and reverse.