CA Unpub Decisions

Mother appeals from the judgment and orders declaring her son, Tylor M., a dependent of the court under Welfare and Institutions Code section 300. She contends substantial evidence does not support the findings that Tylor comes within the dependency courts jurisdiction. Court conclude substantial evidence supports the findings and affirm the judgment and orders.

Plaintiff appeals following an order of dismissal for failure to diligently prosecute his case against defendant Park West Family Partnership (and related defendants, collectively referred to as Park West). Contrary to Poredoss contentions, the record read in its proper context does not establish that the trial court thought it had no choice but to grant the motion for terminating sanctions, and the court did not abuse its broad discretion in dismissing the action rather than imposing some lesser sanction. The judgment is affirmed.

Defendant appeals from the judgment entered after a jury convicted him of selling cocaine base, possessing cocaine base for sale, and of cocaine base possession. For the reasons set forth below, court reverse the judgment insofar as it imposed a concurrent sentence for the cocaine possession charge and modify the judgment to reflect that the sentence is stayed instead. In all other respects, the judgment is affirmed.

N.F., a 16 year old dependent of the juvenile court, challenges the proposed adoption of her 6 year old half sister, M.F. N.F. argues that parental rights should not be terminated because it would substantially interfere with her sibling relationship with M.F. (Welf. & Inst. Code, 366.26, subd. (c)(1)(E).) Court affirm the juvenile courts order terminating parental rights.

In 2001, appellant pled no contest to one count of rape by threat, pursuant to a plea bargain. He was placed on five years of probation, with numerous conditions. In 2006, just before the five year period ended, probation was revoked. He was then sentenced to prison for the upper term of eight years. On appeal, his sole contention is that under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), imposition of the upper term violated his rights to jury trial and due process, safeguarded by the Sixth and Fourteenth Amendments of the United States Constitution. After reviewing the record, court requested supplemental briefing on these issues:
(1) Did appellants guilty plea include a plea to the upper term?
(2) Did the trial court violate appellants Sixth Amendment right to a jury trial, as interpreted in Cunninghamv.California (2007) 549 U.S.[127 S.Ct. 856], by imposing an upper term sentence based on aggravating factors that were not found true by a jury? If so, what is the proper remedy?
After considering the supplemental briefing, court have concluded that this case must be remanded for resentencing under Blakely, supra, 542 U.S. 296 and Cunningham v. California, supra, 127 S.Ct. 856 (Cunningham).

Dylan H. is the son of Heather M. (Mother) and David H. (Father). Father is not a party to the appeal. Mother contends that there was insufficient evidence to support the juvenile court order that declared Dylan to be a dependent child of the court, pursuant to Welfare and Institutions Code section 300, subdivisions (b), (d) and (j). Court disagree with her, and affirm.

Defendant, purports to appeal after he pled no contest to a drug charge and his probable cause certificate issuance request was denied. Court have a duty to raise issues concerning our jurisdiction on our own motion and thus issued an order to show cause concerning possible dismissal of the appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) Defendant has failed to fully and timely comply with both Penal Code section 1237.5 and California Rules of Court, rule 8.304(b). (In re Chavez (2003) 30 Cal.4th 643, 651; People v. Mendez (1999) 19 Cal.4th 1084, 1099; People v. Way (2003) 113 Cal.App.4th 733, 736.) Without a probable cause certificate, defendant cannot appeal. (People v. Kaanehe (1977) 19 Cal.3d 1, 8; People v. Ribero (1971) 4 Cal.3d 55, 61; People v. West (1970) 3 Cal.3d 595, 600 601; People v. Ward (1967) 66 Cal.2d 571, 574 576.) There is no merit to defendants argument that any decision on whether this case is appealable must await full briefing on the merits. When there is no evidence of an intent to appeal noncertificate issues or any basis for believing any exist, the appeal must be dismissed. (People v. Shelton (2006) 37 Cal.4th 759, 769; People v. McEwan (2007) 147 Cal.App.4th 173, 178.)
The appeal is dismissed.

Court hold that the trial court abused its discretion in refusing to grant a certificate of probable cause where the defendant presented a reasonably meritorious issue for appeal.

A jury convicted defendant of committing sexual offenses against V. and B., two girls under 14 years of age. On appeal, defendant argues the court abused its discretion by denying his motions to continue and to substitute retained counsel for his appointed counsel. Court affirm the judgment.

Defendant was charged with the robberies of three banks in Sacramento during a one week period in November 2003. His defense was mistaken identity. Defendant, representing himself, obtained an acquittal of one of the robberies, a deadlocked jury on the second, and a guilty verdict on the lesser offense of grand theft as to the third. Defendant argues the trial court should have granted his motion to dismiss the third robbery count because the police willfully failed to obtain potentially exculpatory evidence. He also contends the court erred by refusing to incorporate his proposed modification to the standard instruction that permits a jury to infer guilt from the defendants possession of recently stolen property. Defendants final contention concerns a miscalculation of presentence custody credits, which the People concede. Aside from correcting the credit miscalculation, court affirm the judgment.

In August 2001, a petition was filed to extend defendant Timothy Seeboths commitment as a sexually violent predator (SVP) from September 2001 to September 2003. In March 2003, a jury was unable to reach a unanimous verdict on the petition, and a mistrial was declared. In July 2003, a petition was filed to extend the commitment from September 2003 to September 2005. The Peoples motion to consolidate the two petitions was granted. In April 2005, a jury found to be true the allegation that, by reason of a diagnosed mental disorder, defendant is an SVP within the meaning of Welfare and Institutions Code section 6600, subdivision (a). (Further section references are to the Welfare and Institutions Code unless otherwise specified.) Based on the jury finding, defendants commitment to the Department of Mental Health was extended to September 2005.
On appeal, defendant contends (1) his appeal is not moot, (2) the evidence supporting the commitment is insufficient, (3) irrelevant inflammatory evidence was admitted over his objection, (4) privileged information was erroneously admitted, and (5) the jury was erroneously advised of the length of the commitment.
The relevant factual and procedural background is set forth in the Discussion. Court affirm the judgment.

Among other crimes, a jury found defendant Jesse Joseph Vasquez guilty of conspiracy to transport approximately 49 kilograms of cocaine for sale from one county to another noncontiguous county within the state. The trial court sentenced him to an aggregate term of 26 years and eight months in prison.
On appeal, defendant contends the trial court erred in: (1) denying his motion to suppress the results of a wiretap on his telephone; (2) instructing the jury on the 40 kilograms weight enhancement; and (3) failing to instruct the jury on the lesser included offense of conspiracy to transport cocaine for sale. Finding no error, court affirm the judgment.

A jury convicted defendant Chancellor Lenard Wade of second degree robbery (Pen. Code, 211). In bifurcated proceedings, defendant admitted a prior felony conviction for purposes of a five year enhancement ( 667, subd. (a)(1)) and as a strike prior ( 667, subds. (b) (i), 1170.12).
Sentenced to state prison, defendant appeals, contending the trial court erroneously denied his Wheeler/Batson motion. Court disagree and affirm.

Defendant was convicted by a jury of three armed robberies (Pen. Code, 211), and the false imprisonment of two victims in each of the armed robberies. ( 236.) The jury found true a personal use of a firearm enhancement as to each of the nine charged counts. ( 12022.53, subd. (b), 12022.5, subd. (a).) The trial court found defendant had suffered eight prior robbery convictions bringing defendant within the provisions of sections 667, subdivisions (a) and (b) (i), and 1170.12.
Defendant was sentenced to consecutive terms of 35 years to life for the three robbery convictions and to consecutive terms of 33 years to life for three of the six false imprisonment convictions. The court stayed imposition of sentence on the remaining three false imprisonment convictions pursuant to section 654. The trial court imposed additional 10-year terms on the robbery convictions pursuant to section 12022.53, subdivision (b), and additional consecutive 10-year terms on the three false imprisonment convictions pursuant to section 12022.5, subdivision (a). The court imposed additional consecutive 20 year terms for six prior serious felony convictions pursuant to section 667, subdivision (a). The total prison term imposed amounted to 384 years to life.
On appeal defendant claims (1) the jurys discovery during deliberations of an item not in evidence, specifically an ATM receipt in the coat where the revolver was found, prejudiced his constitutional rights, (2) the prosecutor committed misconduct in closing argument, (3) the trial court abused its discretion in denying defendants repeated Marsden[2]motions, and (4) there was insufficient evidence to prove defendants eighth prior conviction. Court reject all of defendants claims except the last. As to the last claim, court accept respondents concession of error and court remand the matter for resentencing.