CA Unpub Decisions

An information was filed on June 14, 2005, by the District Attorney of San Bernardino County against the defendant. Defendant was charged under Health & Safety Code section 11378 with one count of possession for sale of a controlled substance. Defendant was also charged under Health & Safety Code section 11370.2 with enhancement penalties based on two prior Health & Safety Code section 11378 convictions.
On August 22, 2005, defendant pled guilty to a single charge of violating Health & Safety Code section 11377, subdivision (a) in the amended felony complaint. In exchange for the plea bargain, defendant was given three years of supervised probation with the usual terms and conditions of probation to apply.
Thereafter, defendant was subsequently arrested on a domestic violation charge and the preliminary hearing on that charge was held concurrently with his Vickers hearing. The preliminary hearing was held on May 30, 2006, and the probation revocation (Vickers) hearing proceeded simultaneously with the preliminary hearing. Court have now concluded our independent review of the record and find no arguable issues.
The judgment is affirmed.

Cathy and Charles B. are the maternal grandparents of five year old Jordan N. and two year old H.B. The grandparents are appealing from the denial of their Welfare and Institutions Code section 388 petition, which asked the juvenile court to order the Riverside County Department of Public Social Services (DPSS) to seek an adoptive placement for the children through the Latter Day Saints (LDS) Family Services. The maternal grandparents sole contention on appeal is that the juvenile court erred in denying their section 388 petition. Court reject this contention and affirm the judgment.

On June 2, 2006, in case No. SWF015888, defendant, represented by counsel, pled guilty to a violation of Health & Safety Code section 11378, possession for sale of methamphetamine, as charged in count two of the felony complaint filed by the District Attorney of Riverside County. Defendant also admitted the Penal Code section 12022.1 special allegation filed in support of that count (out on bail enhancement).
Thereafter, and in accordance with the plea bargain, defendant was committed to state prison for 3 years 4 months less custody credits, the remaining counts and special allegations were dismissed and stricken and defendants pleas of guilty taken in case Nos. SWF014132 and SWF012870 were ordered to run concurrent to the underlying case. (Pen. Code, 1385.)
Defendant appealed, and upon his request this court appointed counsel to represent him. Court have now concluded our independent review of the record and find no arguable issues.

Appellant McDonald was charged with five counts of committing oral copulation with a minor, Jane Doe, and one count of violating a court order. He claimed, as a defense to the sexual crimes, that he was mistaken about Jane Does age and believed her to be at least eighteen years old. The first trial resulted in a misdemeanor conviction for violating the courts restraining order, but a hung jury (mistrial) on the other counts. After a firm date was set for retrial of the five counts of oral copulation, the prosecutor learned that a material witness would be out of state during the time of trial. The court granted the prosecutors motion for a conditional examination of the witness, and the video recorded testimony was subsequently admitted into evidence in the second trial. Appellant was then convicted of the five counts of oral copulation. He now appeals, contending that his conviction should be reversed because admission of the video recording violated his constitutional right to confront witnesses. He also contends that the jury was not adequately instructed on which particular acts or incidents it could rely upon to reach its unanimous verdict, and consequently he may have been convicted of uncharged offenses. Although court remand for correction or redetermination by the trial court of certain sentencing issues, in all other respects the judgment affirmed.

Appellant was adjudged a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 after eight counts of felony animal cruelty, seven counts of felony vandalism, one count of feloniously discharging a firearm in a school zone, one count of feloniously discharging a firearm with gross negligence, one count of possessing marijuana, and one count of possession of a smoking device were found true. As to several of the counts, the juvenile court also found true a personal arming enhancement.
Scott challenges the adjudication, asserting the evidence was insufficient to support several of the personal arming allegations, one felony vandalism count, and the discharging a firearm in a school zone count. Further, Scott contends his constitutional rights were violated when the juvenile court found him liable on two of the counts based upon an aiding and abetting theory.
Court affirm.

Appellant was charged with five counts of committing oral copulation with a minor, Jane Doe, and one count of violating a court order. He claimed, as a defense to the sexual crimes, that he was mistaken about Jane Does age and believed her to be at least eighteen years old. The first trial resulted in a misdemeanor conviction for violating the courts restraining order, but a hung jury (mistrial) on the other counts. After a firm date was set for retrial of the five counts of oral copulation, the prosecutor learned that a material witness would be out of state during the time of trial. The court granted the prosecutors motion for a conditional examination of the witness, and the video recorded testimony was subsequently admitted into evidence in the second trial. Appellant was then convicted of the five counts of oral copulation. He now appeals, contending that his conviction should be reversed because admission of the video recording violated his constitutional right to confront witnesses. He also contends that the jury was not adequately instructed on which particular acts or incidents it could rely upon to reach its unanimous verdict, and consequently he may have been convicted of uncharged offenses. Although court remand for correction or redetermination by the trial court of certain sentencing issues, in all other respects the judgment affirmed.

Appellants contend that the superior court abused its discretion when it denied their motions for attorney fees brought under the private attorney general doctrine set forth in Code of Civil Procedure section 1021.5. Appellants are four of the six parties that obtained a partial reversal in County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544. They argue their lawsuit enforced an important right and provided a significant benefit to the general public because this court ruled that Kern County violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, 21000 et seq.) when it adopted a sewage sludge ordinance without preparing an environmental impact report (EIR).
In the first appeal, appellants obtained a victory with respect to (1) the CEQA violation and (2) this courts conclusion that the ordinances impact fee of $3.37 per ton of sewage sludge was invalid to the extent that the funds generated were used for purposes that violated Vehicle Code section 9400.8. Appellants lost other statutory and constitutional challenges that sought to invalidate the ordinance. After the first appeal was remanded, appellants filed their motions for attorney fees.
The superior court denied the motions after determining that each appellant entitys incentive to pursue the litigation was not out of proportion to its litigation costs. The primary issue raised on appeal concerns the application of the statutory requirement that the necessity and financial burden of enforcement are such as to make the award appropriate. ( 1021.5.)
Court conclude that the superior court correctly applied the necessity and financial burden requirement. Specifically, the financial burden requirement mandates an evaluation of a litigants financial stake in the outcome of the litigation measured by the results expected at the time of important litigation decisions, not the results actually achieved. In addition, we conclude that the superior court made findings of fact that were supported by substantial evidence. Therefore, it did not abuse its discretion.
Accordingly, the order denying the motions for attorney fees is affirmed.

At the end of a 15 mile high speed car chase, defendant Agustine Zapata caused an accident that killed the other driver and defendants pregnant passenger. He was convicted of three counts of second degree murder. On appeal, he argues that one instruction the court gave the jury was too confusing to be understood. Court conclude the instruction was proper and affirm the judgment.

On December 8, 2005, a jury convicted appellant, Arnulfo Anthony Villanueva, of assault with a deadly weapon likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1), count one), possession of methamphetamine (Health & Saf. Code, 11377, subd. (a), count two), and giving false information to an officer (Pen. Code, 148.9, subd. (a), count three). The jury further found true an allegation that appellant personally inflicted great bodily injury on the victim (Pen. Code, 12022.7, subd. (a)). The trial court sentenced appellant to the upper four year term on count one, a consecutive three year term for the great bodily injury enhancement, and a consecutive term of eight months on count two for a total prison term of seven years eight months.
On appeal, appellant contends the trial court erred in denying trial counsels request for a continuance after counsel informed the court he had failed to examine photographic exhibits prior to the beginning of trial. Appellant further contends his counsel was ineffective for failing to view the photographic exhibits prior to the beginning of trial. Court affirm.

On April 13, 2005, California Highway Patrol Officer Chris Maselli arrested appellant for driving under the influence of a controlled substance, later determined to be methamphetamine. During the booking process, appellant made a threatening statement to Maselli. On the next day, appellant twice walked past Masellis house with his fists clenched and an angry look on his face. In an unrelated incident, appellant beat his sister into unconsciousness and broke her nose on November 25, 2004.
Appellant was convicted after jury trial of witness intimidation (count 1), stalking (count 2), resisting arrest (count 3), being under the influence of a controlled substance (count 4), driving while under the influence of alcohol or a drug (count 5), and assault by means likely to produce great bodily injury (count 6). (Pen. Code, 136.1, subd. (c)(1), 646.9, subd. (a), 148, 245, subd. (a)(1); Health & Saf. Code, 11550; Veh. Code, 21352, subd. (a).) The jury found true street gang enhancement allegations attached to counts 1 and 2 and a great bodily injury enhancement attached to count 6. ( 186.22, 12022.7.) Appellant admitted a prior strike and a prison prior. ( 667, subds. (b)(i), 1170.12, subd. (a), 667.5, subd. (b).)
Appellant was sentenced to an aggregate term of 51 years to life imprisonment.
Appellant argues that a gang experts testimony about the bases for his opinions that the South Side Locs are a criminal street gang and that appellant is a member of this gang constituted inadmissible testimonial hearsay in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We disagree. People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 (Thomas) rejected this contention; we agree with Thomass reasoning and result. Appellant also argues that his sentence on count 1 is unauthorized. Respondent concedes the sentencing error and court accept this concession as properly made. Thus, court affirm the convictions and remand for resentencing.

Following the trial courts denial of appellants motion to suppress, he pled no contest to forcibly resisting arrest in violation of Penal Code section 69. He was sentenced to a three year prison term. He appeals contending that the trial court erred in denying his motion to suppress. (Pen. Code, 1538.5, subd. (m).)

The parents of Aaliyah R. appeal from the order of the juvenile court at the selection and implementation hearing (Welf. & Inst. Code, 366.26). Anita L. and Luther R. are challenging the setting of adoption as the permanent plan, the termination of their parental rights, and the courts denial of Luthers section 388 petition, which alleged changed circumstances. Aaliyah was born on October 6, 2003. The orders of the juvenile court are affirmed.

Appellant, Moises Hernandez, was convicted of second degree murder (Pen. Code, 187, subd. (a))with a gang enhancement ( 186.22, subd. (b)((1)). On September 3, 2003, this court issued its opinion in case F041897 remanding the matter to the trial court for resentencing and directing the trial court to strike the 10 year gang enhancement it imposed. On November 20, 2003, the trial court sentenced appellant to an indeterminate term of 15 years to life.
On June 9, 2006, Hernandez filed a motion to modify his sentence by striking the $5,000 restitution fine imposed at his initial sentencing hearing on November 8, 2002, alleging that the court did not consider his ability to pay. On July 19, 2006, the court denied Hernandezs motion.Hernandezs motion to deem the motion he filed in superior court a petition for writ of habeas corpus is denied as is his motion to deem his opening brief a petition for writ of habeas corpus in this court. Hernandezs appeal is dismissed without prejudice to him filing a petition for writ of habeas corpus in the trial court.

In a juvenile wardship petition (Welf. & Inst. Code, 602), it was alleged that appellant Alejandro V., a minor, committed a lewd and lascivious act with a child under the age of 14 (Pen. Code, 488, subd. (a)). Appellant admitted the allegation, and following the subsequent disposition hearing, the court denied appellants request for deferred entry of judgment (DEJ) under section 790, et seq.; adjudged appellant a ward of the court; and placed him on probation in the custody of his parents.
On appeal, appellant contends the court abused its discretion in denying appellants request for DEJ. Alternatively, he argues, if this argument is deemed waived by counsels failure to object to the courts denial he was denied his constitutional right to the effective assistance of counsel. Court affirm.