CA Unpub Decisions

Defendant appeals from the judgment following his jury trial and conviction of attempted criminal threat. (Pen. Code, SS 664, 422.) After the jury failed to reach a verdict on a second degree commercial burglary charge, appellant pleaded guilty to misdemeanor petty theft. (S 484, subd. (a).) The trial court sentenced him to one year for attempted criminal threat, a concurrent six-month sentence for petty theft, and a consecutive one year term pursuant to section 667.5, subdivision (b). Appellant contends that court should reverse the attempted criminal threat conviction because it is not supported by substantial evidence, the police failed to preserve exculpatory evidence, and the trial court violated its sua sponte duty to give the jury self defense instructions. Court affirm.

Plaintiff, was injured in an automobile collision. He filed, but later dismissed, a personal injury action against others involved in the accident. This case arises out of a contractual uninsured motorist arbitration proceeding between plaintiff and his insurer, defendant, Geico General Insurance Company. (Ins. Code, S 11580.2.) Prior to the arbitration, plaintiff served on defendant a Code of Civil Procedure section 998 offer to compromise for $9,999. Defendant rejected the offer. The arbitrator subsequently awarded plaintiff the $30,000 uninsured motorist policy limit. An April 5, 2006 judgment was entered in conformity with the arbitrator's award. Plaintiff then sought an award of costs. On June 14, 2006, the trial court denied plaintiff's motion for costs and granted defendant's motion to tax costs. The trial court ordered, "No costs are allowed." The trial court found this "was an ordinary uninsured motorist arbitration pursuant to the Insurance Code," and plaintiff had not cited any authority for an award of costs. The trial court also held, insofar as plaintiff requested costs incurred in his dismissed personal injury action, "[C]osts incurred in a civil action are not attributable to the insurer in a separate [uninsured motorist] proceeding." Plaintiff filed a timely notice of appeal from the order denying costs. Plaintiff has not raised any issue on appeal specific to the trial court's denial of costs incurred in connection with the dismissed personal injury complaint.
The June 14, 2006 order denying costs is reversed. On remand, the trial court is to determine the proper cost award in favor of plaintiff, John Clements, consistent with Pilimai v. Farmers Ins. Exchange Co., supra, 39 Cal.4th at pages 139-151. Plaintiff is to recover his costs on appeal from defendant, Geico General Insurance Company.

After defendant was arrested and charged with attempted murder, drug enforcement agents twice questioned him in jail without counsel. Although the agents ostensibly sought information about matters unrelated to the attempted murder charge, they also discussed with defendant the events leading to that charge, learned he intended to proffer a claim of self defense, and then shared that information and the factual basis for his claim with the alleged victim.
On appeal, defendant renews his contention that dismissal is the proper remedy for the admitted violations of his Sixth Amendment right to counsel and fair trial rights. Under the circumstances, court agree the trial court's refusal to dismiss the charges was error, and reverse the judgment.

After the trial court denied a motion to suppress evidence (Pen. Code, S 1538.5) and dismiss the information (Pen. Code, S 995), Gene Wright entered a negotiated guilty plea to possessing methamphetamine for sale (Health and Saf. Code, S 11378) and admitted two prior drug convictions within Health and Safety Code, section 11370.2, subdivision (c) and a prior strike (Pen. Code, SS 667 subds. (b) (i), 1170.12, 668). The court denied a motion to strike the prior strike and sentenced Wright to a prison for five years eight months: double the 16-month lower term for possessing methamphetamine for sale with a prior strike enhanced three years for a prior drug conviction. It struck the second prior drug conviction finding. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304.)

Appellant appeals an order reinstating to his former wife, Jessica Alley (Jessica), unsupervised visitation with their two minor children. He contends the lower court abused its discretion because: (1) Family Code section 3030 prohibits unsupervised visitation with a person convicted under Penal Code section 273a; and (2) unsupervised visitation with Jessica is not in the children's best interests.
The order is affirmed.

D.W. appeals the judgment terminating her parental rights over Clarence J. and James J. She contends that the juvenile court abused its discretion by summarily denying her Welfare and Institutions Code section 388 modification petition and erred by declining to apply the beneficial relationship exception to termination (S 366.26, subd. (c)(1)(A)). Court affirm.

A jury found defendant guilty of possessing stolen property under Penal Code section 496, subdivision (a) (count 1), and driving a stolen vehicle under Vehicle Code section 10851, subdivision (a) (count 2). The trial court sentenced defendant to five years in state prison. On appeal, defendant contends that the judgment must be reversed because the prosecutor committed misconduct during closing argument. Court hold that any alleged misconduct was harmless. Therefore, the judgment is affirmed.

Defendant pled guilty to spousal abuse under Penal Code section 273.5, subdivision (a), and admitted a prior conviction under section 273.5, subdivision (e). The trial court sentenced defendant to three years' probation. On appeal, defendant contends that one of the probation conditions is constitutionally overbroad. Court agree.

Mother challenges the juvenile court's order terminating her parental rights to her son, Andre, pursuant to Welfare and Institutions Codesection 366.26. Her only contention is that the San Bernardino County Department of Children's Services (DCS) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA), requiring reversal. Court find that DCS substantially complied with the notice requirements and therefore reject mother's claim.

The petition for rehearing filed in the above-referenced matter is denied. On the court's own motion and for good cause shown, section II of the opinion filed in the above-referenced matter on January 16, 2007, is hereby replaced.

A modification decision.

The court adjudged appellant, Juan R., a ward of the court (Welf. and Inst. Code, S 602) after it sustained allegations charging him with assault with a deadly weapon (count 1/Pen. Code, S 245, subd. (a)(1)), challenging another person to fight (count 2/Pen. Code, S 415, subd. (1)), and brandishing a deadly weapon (count 3/Pen. Code, S 417, subd. (a)(1)). The court also found true a gang enhancement in count 1 (Pen. Code, S 186.22, subd. (b)(1)(B)) and allegations in counts 2 and 3 that the underlying offense in those counts were committed for the benefit of a street gang (Pen. Code, S 186.22, subd. (d)). On March 17, 2006, the court set Juan's maximum period of physical confinement (MPPC) at 11 years 8 months and placed him in the custody of the probation officer for placement in the Youth Treatment Center for 45 to 180 days. On appeal, Juan contends: 1) the evidence is insufficient to sustain the court's finding that he committed assault with a deadly weapon; 2) the court's disposition order violated Penal Code section 654; and 3) the court erred in setting his MPPC. Court affirm.

On June 1, 2003, appellant, was arrested by a Palace Casino security guard in Lemoore and turned over to Kings County sheriff's deputies after Gonzales was seen smoking methamphetamine in a parked truck. Inside Gonzales's truck, the deputies found four plastic packages containing .6 grams, 1.5 grams, 6.7 grams, and 2.12 grams of methamphetamine. After Gonzales was transported to jail, an additional package containing .3 grams of methamphetamine was found under the back seat of the patrol car where Gonzales had been sitting.Following independent review of the record court find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.

On November 22, 2005, the Kings County District Attorney filed an information in superior court charging appellant as follows:
Count I unlawful sale of a controlled substance (Health and Saf. Code,S 11379, subd. (a));
Count II unlawful possession of a controlled substance for purpose of sale (Health and Saf. Code, S 11378);
Count III unlawful possession of a controlled substance (Health and Saf. Code, S 11377, subd. (a));
Count IV misdemeanor false identification (Pen. Code, S 148.9, subd. (a)); Count V misdemeanor fighting in a public place (Pen. Code, S 415, subd. (1)); Count VI misdemeanor being under the influence in a public place (Pen. Code, S 647, subd. (f)); and
Count VII misdemeanor possession of not more than 28.5 grams of marijuana (Health and Saf. Code, S 11357, subd. (b)).
As to counts I to III, the district attorney specially alleged appellant had served a prior prison term (Pen. Code, S 667.5, subd. (b)).
On July 10, 2006, appellant filed a notice of appeal based on the sentence or other matters occurring after the plea and challenging the validity of his plea or admission.
The judgment is affirmed.