CA Unpub Decisions

The mother of Katherine Y., seeks extraordinary writ relief (Welf. & Inst. Code, 366.26, subd. (l), Cal. Rules of Court, rule 8.452), challenging the juvenile court's order terminating her reunification services after six months and setting the section 366.26 permanency planning hearing for Katherine. Connie contends that the court erred by finding that she had not regularly participated in, nor made substantive progress with, her case plan.
Court issued an order to show cause, and Katherine's counsel, who opposes Connie's petition, responded. The San Diego County Health and Human Services Agency (Agency), which supports Connie's petition, also responded. The parties waived oral argument. Court review the petition on the merits and grant it.

A jury convicted Spiro Notis of inflicting corporal injury upon his then live in girlfriend, now wife (Pen. Code, 273.5, subd. (a)). In a separate bench trial, the court found true that defendant had a prior conviction for second degree robbery ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The trial court sentenced defendant to six years in prison. In his appeal, defendant claims the trial court erred in admitting certain portions of the experts testimony on the battered womens syndrome. Defendant also claims the court erred in denying his request for a jury instruction on the lesser included offense of battery upon a spouse or cohabitant. Court reject these claims and affirm the judgment.

Defendant and appellant (defendant) challenges the trial courts order revoking his probation and imposing the previously suspended six year sentence. As discussed below, court conclude the trial court did not abuse its discretion and so affirm the decision.

Defendant and Appellant Joe M. (Joe) claims he is the biological and presumed father of one year old David E. Joe appeals from the orders and findings of the juvenile court denying him reunification services or visitation with David. Joe claims the court erred in finding that he was not a presumed father and failing to offer him reunification services or visitation with David. As explained below, court reject these contentions and affirm the judgment.

Defendant pled nolo contendere on May 4, 2005, to one count of false personation (Pen. Code, 529), and admitted a so called prison prior (Pen. Code, 667.5, subd. (b)), as alleged in an amended information. In accordance with the terms of a plea agreement, the trial court suspended imposition of sentence for the purpose of placing defendant on probation for a period of three years, a term of which required defendant serve 365 days in county jail. Pursuant to the plea agreement, the trial court dismissed four other counts and struck three other alleged prison priors. On May 24, 2006, the district attorney filed a petition to revoke defendants probation and on May 26, 2006, the trial court summarily revoked probation. After the trial court appointed counsel to represent defendant, an issue arose regarding defendants mental competence, and the trial court suspended proceedings in accordance with section 1368. On July 13, 2006, the trial court found defendant mentally competent and reinstated criminal proceedings. Defendant then waived his right to a hearing under People v. Vickers (1972) 8 Cal.3d. 451 and admitted each of the probation violations. The trial court sentenced defendant to state prison for a total term of two years four months, comprised of the low term of 16 months on the false personation conviction plus an additional year on the prison prior enhancement. The judgment is affirmed.

After the juvenile court terminated her parental rights at a permanent plan hearing held pursuant to Welfare and Institutions Code section 366.26, defendant and appellant Dawn C. (mother) challenges the jurisdictional findings, the disposition, and the denial of visitation made at the disposition hearing, which mother characterizes as pending the section 366.26 hearing. As described below, the time for appealing each of these rulings has passed, and so the appeal is dismissed.

Defendant, the girlfriend of a prison inmate, Williams, was convicted by jury verdict of unlawfully possessing marijuana at a prison (Pen. Code, 4573.6; count 1) and of bringing marijuana to an inmate in prison ( 4573.9; count 2). The trial court sentenced her to five years of probation. On appeal, defendant contends (1) the trial court erred by admitting expert testimony because the witness was not qualified as an expert and because his testimony was based on speculation, (2) the trial court erred by permitting the jury to hear a recording of a telephone call between defendant and Williams and to receive a transcript of the call without the courts first determining the audibility of the recording and the accuracy of the transcript, and (3) insufficient evidence supported the convictions because it was inherently improbable under the circumstances that the inmate porter was able to insert drugs into his rectum. Defendant also contends her counsel provided ineffective assistance by failing to object to the expert testimony, to the admission of the telephone conversation transcript, and to Portillos testimony of what he saw on the surveillance tapes. Finding no merit in these assertions, court affirm the judgment.

Appellant, challenges his conviction for assault with the infliction of great bodily injury on a person who was at least 70 years of age. (Pen. Code, 245, subd. (a)(1) and 12022.7, subd. (c).) Appellant contends the photo lineup procedure was impermissibly suggestive and thus he was denied due process by the admission of the victims extrajudicial and in court identifications. Appellant further argues that the sentencing court erred in imposing an upper term based on findings of aggravated facts not found true by the jurys verdict in violation of Blakely v. Washington (2004) 542 U.S. 296.
Contrary to appellants position, the dentification procedure was not unduly suggestive. However, appellant was improperly sentenced under Cunningham v. California (2007) ___U.S. ___ [127 S.Ct. 856]. Accordingly, the judgment of conviction affirmed and the judgment of sentence reversed.

In case No. VCF130264, appellant, Estevan Reyna, pled guilty to one count each of possession of methamphetamine (Health & Saf. Code, 11377) and being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a)). In case No. VCF143290, a jury convicted Reyna of one count of possession of stolen property (count 3/Pen. Code, 496, subd. (a)). On December 5, 2005, the court sentenced Reyna to the midterm of two years on his possession of stolen property conviction and a concurrent two year term on his possession of methamphetamine conviction. On appeal, Reyna contends that in case No. VCF143290 the court erred in charging the jury with CALJIC No. 2.62. Court affirm.

Appellant, challenges his conviction on two counts of threatening another person with immediate great bodily injury in violation of Penal Code section 422. According to appellant, the evidence does not support the finding that the victims were in sustained fear for their safety. Appellant further contends that the trial court erred in finding that his two prior Oregon convictions for attempted sodomy with a child qualified as strike priors under California law.
As discussed below, the sustained fear element of the criminal threat counts is supported by the record. Further, the evidence was sufficient to prove beyond a reasonable doubt that the prior Oregon convictions contained all of the elements required for a crime to be deemed a serious or violent felony in California. Accordingly, the judgment affirmed.

The Madera County Superior Court readjudged appellant, Carlos H., a ward of the court (Welf. & Inst. Code, 602) after it sustained allegations in petition No. BJL015830 A (the A petition) charging Carlos with possession of a concealed dirk or dagger (Pen. Code, 12020, subd. (a)(4)), an allegation in petition No. BJL015830 B (the B petition) charging Carlos with public intoxication ( 647, subd. (f)), and allegations in petition No. BJL015830 that he violated his probation. The court also found true a gang enhancement ( 186.22, subd. (b)(1)(A)) with respect to Carloss possession of a concealed dirk or dagger offense. On May 2, 2006, the court ordered Carlos to enroll in the Juvenile Correctional Camp for a period of two years (six months confinement and 18 months aftercare). On appeal, Carlos contends (1) the evidence is insufficient to sustain the courts true finding on the gang enhancement; (2) the court erred in requiring Carlos to register as a gang member; and (3) the evidence is insufficient to sustain the courts true finding with respect to the public intoxication offense. Court find merit to these contentions. In all other respects, court affirm.

On March 9, 2006, the trial court denied motions by appellant, to suppress, quash and traverse a search warrant. On March 21, 2006, Fuentes entered into a plea agreement in which she pled no contest to being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (e), count two) and maintaining a place for the sale of a controlled substance (Health & Saf. Code, 11366, count six). Allegations that Fuentes possessed a controlled substance, was an ex felon in possession of a firearm, and two misdemeanor allegations were dismissed. A prior prison term enhancement and an enhancement for being personally armed with a firearm also were dismissed. Under the terms of the plea agreement, a lid of three years eight months was placed on Fuentess prison term.
On April 3, 2006, the trial court sentenced Fuentes to the California Rehabilitation Center (CRC) for three years on count two plus a consecutive term of eight months on count six for a total term of three years eight months. The court imposed a restitution fine and granted Fuentes applicable custody credits.

Appellant, the County of Kern (County), filed the underlying action against respondent, retired, for violation of the False Claims Act and negligent misrepresentation. The County alleged that Sparks falsely certified sheriffs department payrolls resulting in certain employees receiving unauthorized premium pay adjustments. At the conclusion of the Countys case in chief, the trial court granted Sparkss motions for nonsuit and a directed verdict.
The County contends the trial court erred. According to the County, there was sufficient evidence to support a verdict in its favor.
As discussed below, giving the Countys evidence all the value to which it is legally entitled, and indulging in every legitimate inference that may be drawn from the evidence, it must be concluded that the nonsuit/directed verdict motions should not have been granted as to the false claims cause of action. Sparks did not have the authority to give premium pay to a commander, and a reasonable jury could infer from the Countys evidence that Sparks acted recklessly when certifying that this unauthorized premium pay was proper. However, as a public employee acting in the scope of his employment, Sparks is immune from liability for negligent misrepresentation. Accordingly, the judgment be reversed in part and affirmed in part.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450 8.452 [formerly rule 38 38.1]) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his two sons. Court deny the petition.