CA Unpub Decisions

Defendant appeals from the judgment entered after a jury convicted him of multiple counts of child molestation. Asencio contends the evidence of force or duress was insufficient to support his convictions of committing a forcible lewd act upon a child under the age of 14 years. Court agree, and reverse his convictions on those counts and remand for resentencing on the lesser included convictions of committing a lewd act upon a child under the age of 14 years.

Defendant Robert Barrett appeals from the trial court's order denying his petition to compel arbitration. Barrett contends the trial court abused its discretion when it declined to enforce the contractual arbitration agreement between Barrett and plaintiff David Sherman, based on Barrett's delay in filing his petition to compel arbitration, and based on the fact that the litigation also involves claims against a third party codefendant, Ivan Mendoza, which are not subject to the arbitration agreement. Court conclude that the trial court did not abuse its discretion in deciding, pursuant to Code of Civil Procedure section 1281.2, subdivision (c), to deny arbitration because of the possibility of conflicting rulings on common issues of law or fact. Court affirm.

Defendant appeals from the judgment entered following his conviction after a court trial on one count of selling a controlled substance (heroin). Bonner contends the trial court's decision to strike the testimony of a defense witness deprived him of his right to a fair trial and violated due process. Court affirm.

Appellant appeals from an order sustaining his former employer's demurrer and the dismissal of the action. We conclude the order sustaining the demurrer without leave to amend was proper, and affirm the ruling. In addition, the action is independently barred by collateral estoppel and judicial immunity.

Defendant has faced two probation violation hearings in this action. In the first hearing, the trial court ruled defendant was not in violation of probation, having resolved credibility issues in defendant's favor. The second probation violation hearing was based on the allegation defendant had committed perjury (Pen. Code, S 118) at the first violation hearing in answering the prosecutor's questions pertaining to two prior arrests. The trial court found defendant had committed perjury at the first hearing and revoked probation. Probation was reinstated on the condition defendant serve 180 days in county jail. Defendant contends in this appeal that there was legally insufficient evidence of perjury to support a probation violation. Court agree and reverse.

In February 2004, Davion M. (then 12 years old) was arrested, then released to his mother and ordered to appear in juvenile court on May 6. On May 6, a petition was filed, alleging that Davion M. (then 13) had committed two counts of robbery. (Pen. Code, S 211.) Davion did not appear as ordered and remained at large until he was again arrested on August 24. An amended petition was filed on September 17, adding a petty theft count. (S 487, subd. (c).) In December, Davion waived his constitutional rights and admitted the petty theft. Pursuant to a case settlement agreement, the juvenile court ordered a suitable placement and set the maximum time of confinement at one year. The orders are affirmed.

Mother appeals from the judgment terminating parental rights to her daughter under Welfare and Institutions Code section 366.26. Mother's only argument on appeal is that there is no substantial evidence to support the trial court's finding of inapplicability of the exception to termination of parental rights pursuant to section 366.26, subdivision (c)(1)(A). Court reject the contention and affirm the judgment.

Defendant, appeals following his guilty plea to selling cocaine base. (Health and Saf. Code, S 11352, subd. (a).) Court appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an "Opening Brief" in which no issues were raised. On November 7, 2006, court advised defendant he had 30 days within which to personally submit any contentions or issues that he wished us to consider. In response, defendant, who represented himself at trial, filed a letter brief in which he argues the trial court improperly denied the following motions: to set aside the information (Pen. Code,S 995); to compel discovery; and to dismiss (S 997.) Defendant also argues: the section 995 motion was actually a section 1538.5 motion; his section 1538.5 motion was timely filed; the probable cause determination was untimely; his parole hold was improperly used as a reason to deny his right to be arraigned within 48 hours (SS 849, subd. (a), 872, subd. (a)); the trial court improperly refused to hear his dismissal motion and demurrer to the complaint on May 24, 2006; and, he made his own section 1538.5 motion to suppress evidence while in the presence of his appointed counsel. The Attorney General argues that defendant was awarded excessive presentence credits. Court affirm with modification.

A mother appeals from an order terminating her parental rights, contending the Department of Children and Family Services failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. S 1901 et seq). Court disagree and affirm.

The District Attorney filed a single count petition alleging that Lajoy had exhibited a deadly weapon. (Welf. and Inst. Code, S 602; Pen. Code, S 417, subd. (a)(1), a misdemeanor.) After a contested hearing, the juvenile court found the allegation true, declared Lajoy a ward of the court, and sent her home on probation under specified terms (with a maximum confinement time of six months).
On November 20, 2006, we notified Lajoy that she had 30 days within which to submit any issues she wanted us to consider. Lajoy has not responded. Based on our independent examination of the record, Court are satisfied that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.)
The judgment is affirmed.

Mother appeals an order terminating parental rights with respect to her five children. Court reject mother's contentions and affirm the order.

A jury found defendant guilty of receiving stolen property, a felony (Pen. Code, S 496, subd. (a); unspecified section references that follow are to the Penal Code), and giving false information to a police officer, a misdemeanor (S 148.9, subd.(a)). The jury found defendant not guilty of possessing ammunition (S 12316, subd. (b)(1)) or burglar's tools (S 466). In a bifurcated proceeding, the trial court found true an allegation defendant served a prior prison term (S 667.5, subd. (b)). The trial court sentenced defendant to the middle term of two years for receiving stolen property, plus one year for the prior prison term. The court sentenced defendant to a concurrent six month jail term for the misdemeanor conviction.
Defendant appeals, contending his conviction for receiving stolen property was not supported by substantial evidence. Court requested supplemental briefing on whether the trial court erred in failing to give a unanimity instruction. Finding that failure prejudicial error, court reverse defendant's conviction for receiving stolen property.

A jury convicted defendant Defendant of willful failure to appear on a felony charge while on bail, and also found to be true an on bail enhancement. He was sentenced to a term in state prison.
On appeal, defendant contends that the prosecutor committed prejudicial misconduct, and the trial court erred in instructing the jury. Court disagree and affirm the judgment.

Defendant was convicted of possessing a sharp instrument while he was an inmate confined in state prison, and the trial court found that defendant had two prior serious felony convictions (murder and attempted murder) within the meaning of the "three strikes law." He was sentenced to state prison for 25 years to life, to be served consecutively to his existing term.
On appeal, defendant contends the trial court erred when it ruled that, based on defendant's proffered evidence, his defense of necessity was inapplicable. He also claims that his conviction constituted an invalid 'slow plea." Court affirm the judgment