CA Unpub Decisions

Frances L., the mother of Ricky R., appeals the 12-month review order terminating her reunification services. Frances contends the juvenile court erred by finding the San Diego County Health and Human Services Agency (Agency) had provided her with reasonable reunification services.

On November 15, 2004, Ricky A. Ballard entered a negotiated guilty plea to failing to register as a sex offender. (Pen. Code, 290, subd. (g)(2).) He waived the right to appeal denial of a motion to suppress, issues related to a prior strike conviction, and a stipulated sentence. The court suspended imposition of sentence and placed him on probation for three years including conditions he obey all laws, report to the probation officer as directed, complete a residential substance abuse treatment program if directed by the probation officer, and avoid contact with the victim of the earlier crime. On November 1, 2005, Ballard admitted failing to obey all laws. The court revoked probation and imposed a two year middle term in prison. It stayed the sentence and reinstated probation. On July 18, 2006, the court held an evidentiary hearing and revoked probation, finding Ballard violated probation conditions by failing to report to the probation officer as directed, failing to properly register as a sex offender, failing to present proof of enrollment in a residential substance abuse treatment program, and making contact with the victim of the earlier crime. The court lifted the stay on the two year prison sentence and awarded Ballard 559 days of credit for time served. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b), former rule 30(b).)

Following a joint trial, a jury found Anthony Mark Ortiz and Brandon Jamaal OGuynn (hereafter referred to jointly as defendants, and referred to individually by last name) guilty of first degree murder in the shooting death of Leydeer Molina. With respect to defendant Ortiz, the jury further found true the special allegation under Penal Code section 12022.53, subdivision (d), that in the commission of the crime, defendant Ortiz personally and intentionally discharged a firearm which proximately caused great bodily injury and death. Based on the jurys verdicts and true finding, the trial court sentenced each defendant to a term of 25 years to life in state prison on the first degree murder conviction and sentenced defendant Ortiz to the additional mandatory consecutive term of 25 years to life in prison on the section 12022.53, personal gun use enhancement.
Each defendant raises various claims of error on appeal, the details of which Court recount below, in our discussion of those claims. Court agree with defendant OGuynns assertion that the evidence is insufficient to support the jurys verdict finding him guilty of first degree murder. Therefore, Court reverse his conviction on that charge. Court conclude that defendant Ortizs claims are meritless, and affirm his conviction.

After a jury trial, defendant Thomas Anthony Nerys was convicted of one count of assault with a firearm on Johnathan Zane, one count of assault with a firearm on Gina Brown (Pen. Code, 245, subd. (a)(2); counts 1 & 2), and possession of a firearm by a felon (count 3). ( 12021, subd. (a)(1).) The jury also found true the allegations that counts 1 and 2 were serious and violent felonies ( 1192.7, subd. (c) & 667.5., subd. (c)), and that defendant personally used a firearm. ( 12022.5, subds. (a) & (d)) The jury also made a special finding as to count 3 that defendant possessed the following firearms: a .22-caliber revolver, a Browning semiautomatic shotgun, and a rifle.
Defendant contends the prosecutor engaged in illegal group bias by systematically excluding a cognizable group of people involved in a spiritual prison ministry. Court conclude that people who participate in a religious or spiritual prison ministry is not a cognizable group. Defendant also asserts the trial court abused its discretion in allowing testimony that defendant shot a pistol into a daybed because it was more prejudicial than probative. Court find the trial court did not abuse its discretion in admitting evidence of the prior uncharged act. Finally, Court agree with the parties that the abstract of judgment should be corrected to reflect that counts 2 and 3 run concurrent to count 1, and that the trial courts minute order and abstract of judgment should correctly reflect that defendant was sentenced to three years for count 2, four years for the personal use enhancement in count 2, and two years on count 3. In all other aspects however, Court find no error and affirm the judgment.

Defendants (Seay) and Curtis Blaine Reynolds (Reynolds) challenge their convictions after sheriffs deputies executed a search warrant on Seays home and found methamphetamine packaged for sale. As discussed below, Court conclude that sufficient evidence supports the convictions and so affirm the judgment.

Defendant and appellant Gran Destino Garrett appeals from a petition for continued involuntary treatment filed pursuant to Penal Code section 2970, et seq. Defendants sole contention on appeal is that the trial courts minute order fails to properly reflect the trial courts verbal commitment order. The People agree with defendant. For the reasons set forth below, Court order the trial court to amend the minute order to accurately reflect the trial courts verbal order.

After three sustained petitions under Welfare and Institutions Code section 602, the juvenile court committed minor and appellant Jasper R. (minor) to the California Youth Authority (CYA). On appeal, minor contends that the juvenile court abused its discretion in placing him at CYA. For the reasons set forth below, Court affirm the disposition of the juvenile court.

C.V. (the mother) and J.V. (the father) appeal from an order terminating their parental rights to their infant twins, Jeanna V. and Michael V.
Both parents contend that the juvenile court erred by denying their changed circumstances petitions. (Welf. & Inst. Code, 388 ( 388).) In addition, the mother contends that the juvenile court erred by finding that the beneficial parental relationship exception to termination did not apply. (Welf. & Inst. Code, 366.26, subd. (c)(1)(A).) Finally, the mother also contends that notice was not given as required by the Indian Child Welfare Act (the ICWA). (25 U.S.C. 1901 et seq.)
Although there was an attempt to give notice, Court hold that the notice was not in substantial compliance with the ICWA. However, Court find no other error. Accordingly, Court order a limited remand for the purpose of complying with the ICWA.

A jury found Joshua Michael Mejia guilty of the first degree murder of Robert Johannes, and the trial court sentenced him accordingly to an indeterminate term of 25 years to life in state prison. (Pen. Code, 187, subd. (a); 189; 190, subd. (a).)
Mejia contends the trial court erred by failing to give certain jury instructions regarding accomplice testimony; by giving an incomplete instruction regarding witness credibility; and by allowing a witness to testify pursuant to an improper condition in a plea agreement. Alternatively, Mejia argues his trial counsel was ineffective for acceding to these alleged errors. Court disagree with these claims, and affirm the judgment.

On November 22, 2005, the Kern County District Attorney filed a complaint in superior court charging appellant Ricky Gene Moten, Jr. and codefendants Shaliquese Leftrich and Deondray McGregory as follows:
Count Ipersonally carrying a loaded and concealed firearm (Pen. Code, 12031, subd. (a)(2)(F)) for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) (all defendants);
Count IIbeing an ex felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)) for the benefit of a criminal street gang ( 186.22, subd. (b)(1)) and with two prior prison terms ( 667.5, subd. (b)) (appellant only); and
Count IIIbeing an ex-felon in possession of ammunition (Pen. Code, 12316, subd. (b)(1)) (appellant only). Appellant contends the trial court abused its discretion by refusing to permit him to withdraw his pleas of nolo contendere.
The trial court is directed to designate in its minutes that counts II and III (substantive offenses and attendant special allegations) are dismissed without referring to such dismissal being conditional. In all other respects the judgment is affirmed.

Petitioners, minors, seek an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the dispositional order of the juvenile court denying them visitation with their sister, S. Court deny the petition.

A jury convicted defendant Hobert Mejia Gomez of assault with a deadly weapon and attempting to make a criminal threat. The trial court sentenced him to three years in state prison for the assault and an additional one year concurrent term on the attempt. Defendant claims the trial court committed reversible error by allowing the prosecution to impeach him with a prior Florida burglary conviction and by the manner in which it sanitized reference to that conviction.
He also asserts two sentencing error claims. First, defendant argues the assault and the threat were part of a single criminal act, and the trial court violated Penal Code section 654, subdivision (a) by failing to stay the sentence on count 2. Second, he claims the trial court shorted him a day in calculating his custody credits.
The Attorney General concedes defendants sentencing claims have merit. In light of these concessions, Court modify defendants sentence. However, we conclude no error occurred in the use of defendants prior Florida conviction to impeach him and affirm his conviction.

Petitioner challenges a judgment entered after a partial retrial of her divorce case. The retrial occurred after the Court of Appeal, Fourth District, Division One, reversed the portion of the initial judgment awarding Epstein credits to respondent James Kelly, and remanded for modification of the judgment not inconsistent with [its] opinion. (In re Marriage of Kelly (May 22, 2001, D037277) [nonpub. opn.], pp. 17-18 (Kelly I).) Sharon[2]contends the trial court erred in conducting a retrial on the amount of Epstein credits because the appellate opinion required the trial court to simply strike the Epstein credit award from the initial judgment. Sharon alternatively contends the trial court erred in limiting the retrial to the amount of the Epstein credits and precluding her from challenging Jamess entitlement to these credits. Sharon also contends the trial court abused its discretion in awarding her only $7,000 in attorney fees because her attorneys declaration documented she expended $120,000 in total fees. In a cross-appeal, James also challenges the sufficiency of the evidence to support the fee award.
Court conclude the trial court did not err in granting a retrial on the amount of the Epstein credits. The appellate opinion did not direct the trial court to modify the previous judgment by striking the Epstein credits. Nor did the opinion specify the procedural manner in which that portion of the judgment was to be modified. The law of the case doctrine did not bar retrial because Sharon stipulated to the admission of an expert report on the amount of Epstein credits due James, thus justifying a retrial based on new and additional evidence.
Court also reject Sharons contention the trial court erred in limiting the new trial to the amount of the Epstein credits. The appellate opinion reversed the Epstein credit award solely because substantial evidence did not support the calculation of the award, and expressly affirmed all other aspects of the first judgment, including the trial courts determination James was entitled to Epstein credits. Finally, we conclude the trial court did not abuse its discretion in the attorney fee award to Sharon. Accordingly, Court affirm the judgment.

Daniel S. Henry challenged a need-based attorney fees award issued by the trial court in favor of his ex-wife, Marcia Henry. In an unpublished opinion, In re Marriage of Henry (Mar. 16, 2006, G035104), we reversed the award, and remanded the matter for further proceedings to permit the court to show it exercised its discretion and considered all relevant factors under Family Code sections 270, 2030, 2032, and 4320. (All further statutory references are to the Family Code, unless otherwise indicated.) On remand, the parties made written submissions and had an opportunity to make oral argument to the court. The court then issued a new attorney fees award in favor of Marcia, and Daniel appealed.
Court find no merit in any of the arguments raised by Daniel in this second appeal. The trial court followed our instructions on remand. Court find no abuse of discretion and therefore affirm.