CA Unpub Decisions

Mother appeals from the orders made July 14, 2006, terminating parental rights to the children under Welfare and Institutions Code section 366.26. Mother never visited the children or attended the proceedings. She contends the prior orders denying reunification services and referring the matter for a hearing under section 366.26 ("referral orders") must be reversed, because substantial evidence does not support the finding under section 361.5, subdivision (b)(10) that mother previously failed to reunify with a sibling of the children and subsequently did not make reasonable efforts to rehabilitate herself. Mother argues this court has jurisdiction to review the referral orders even though she failed to file a petition for extraordinary writ under former rule 38.1 of the California Rules of Court(renumbered rule 8.452 effective January 1, 2007), because she did not receive notice of her right to file a writ petition. Mother further contends the dependency court prejudicially erred in terminating parental rights, because notice of the continuance of the parental rights termination hearing was not proper and the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. SS 1901-1963) was not complied with. Court hold that notice of the right to file a writ petition was properly provided and the referral orders are not reviewable in this appeal. Court also hold that failure to comply with the statutory notice procedure was nonprejudicial in this case, and the dependency court complied with the ICWA. Accordingly, the orders are affirmed.

This is a mother's original petition for extraordinary writ challenging the denial of reunification services in a dependency case. (Former Cal. Rules of Court, rule 38.1, now rule 8.452.) Court deny the petition.

Petitioner seeks extraordinary writ relief (Welf. and Inst. Code, S 366.26, subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile court's order, made at the conclusion of the statutory limit for reunification (S 366.22), setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for her eight year old son's petition is opposed by the Department of Children and Family Services (Department) and also by Manuel, who has filed a joinder in the Department's response. Court deny the petition.

Defendant, purports to appeal from an order refusing to recall his sentence pursuant to Penal Code section 1170, subdivision (d). Court noted that such a post judgment order may not be appealable. Court have a duty to raise issues concerning our own 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.) Such an order is not appealable. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726; People v. Gainer (1982) 133 Cal.App.3d 636, 641; People v. Druschel (1982) 132 Cal.App.3d 667, 668-669; People v. Niren (1978) 76 Cal.App.3d 850, 851.) Hence, the appeal must be dismissed. The appeal is dismissed.

Mother, petitions for extraordinary writ review under California Rules of Court rule 8.452 (formerly rule 38.1) of the orders made November 9, 2006 at a hearing under Welfare and Institutions Code section 366.21, subdivision (f) ("referral hearing") terminating reunification services with S. K., born in 1993, M. D., born in 1997, and I. S., born in 2005, (the "children and setting a permanent plan hearing under section 366.26. Mother contends the orders are not supported by substantial evidence. Court find substantial evidence supports the court's rulings. Accordingly, court deny the petition.

As amended during trial, the consolidated information charged defendants with multiple felonies and enhancements in connection with a shooting on February 7, 2003, and a home invasion robbery on April 3, 2003. It charged both defendants with attempted murder (Pen. Code, SS 187, subd. (a) and 664 count one), discharging a firearm at an occupied motor vehicle (S 246 count two), assault with a semiautomatic firearm (S 245, subd. (b) count three), robbery (S 211 -- count five), residential burglary (S 459 -- count six), and assault with a semiautomatic firearm (S 245, subd. (b) count seven). The consolidated amended information also charged Martinez with receiving stolen property. (S 496, subd. (a) -- count four.) Among the numerous enhancements, it alleged defendants committed the offenses alleged in counts one, two and three for the benefit of, at the direction of, and in association with a criminal street gang. (S 186.22.) The jury found defendants guilty of all counts and found true all the special allegations. The court found true the special on bail allegation. (S 12022.1.) The court sentenced Martinez to an aggregate term of 31 years and eight months, and Brown to an aggregate term of 16 years plus 23 years to life.
On appeal, defendants argue they are entitled to reversal because: (1) the court abused its discretion in granting consolidation and denying severance; (2) the court abused its discretion in granting the prosecution leave to file an amended information to add a charge of attempted murder; (3) the prosecutor committed prejudicial misconduct; and (4) cumulative prejudice violated defendants' right to due process. Court affirm the judgment.

Defendant pled no contest to four counts of forcible lewd conduct on a child under the age of 14 years (Pen. Code, S 288, subd. (b)(1)), with the understanding that he would be sentenced to 28 years in state prison. Defendant's plea was based on an incident in which he engaged in sexual conduct with a seven year old female, including touching her vagina with his hand, tongue and penis, and during which he prevented the victim's attempts to get away. The trial court denied probation and sentenced defendant to 28 years in state prison in accordance with the plea agreement.
Defendant appealed. Court have undertaken an independent examination (People v. Wende (1979) 25 Cal.3d 436,)of the record and have found no arguable error.

Defendant pled no contest to four counts of forcible lewd conduct on a child under the age of 14 years (Pen. Code, S 288, subd. (b)(1)), with the understanding that he would be sentenced to 28 years in state prison. Defendant's plea was based on an incident in which he engaged in sexual conduct with a seven year old female, including touching her vagina with his hand, tongue and penis, and during which he prevented the victim's attempts to get away. The trial court denied probation and sentenced defendant to 28 years in state prison in accordance with the plea agreement.
Defendant appealed. Court have undertaken an independent examination (People v. Wende (1979) 25 Cal.3d 436,)of the record and have found no arguable error.

Defendant pled guilty to arson of forest land (Pen. Code, S 451, subd. (c)) and admitted he had served a prior prison term (S 667.5, subd. (b)), with the understanding that a remaining charge and enhancement would be dismissed and defendant would be sentenced to state prison for three years. The charges stemmed from an incident in which defendant set fire to the median strip on Interstate 5. At the subsequent sentencing hearing, the trial court denied probation and sentenced defendant in accordance with the plea agreement.
Court have undertaken an independent examination of the entire record in this case and have found no arguable error that would result in a disposition more favorable to defendant.

A jury convicted defendant of one count of robbery (Pen. Code, S 211), and the trial court found that defendant had suffered a prior serious felony conviction and two prior strikes (S 667, subds. (a)(1), (b) - (i)). The court sentenced defendant to 30 years to life in prison and added an additional five year term for defendant's violation of his probation conditions in an earlier case.
Defendant appeals. Defendant contends that his conviction must be reversed because the trial court erred in denying his motion to suppress evidence that was allegedly seized in violation of the Fourth Amendment. Defendant also contends that his sentence is erroneous because the trial court abused its discretion in declining to exercise its authority under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531 (Romero) to strike one of his prior strikes and impose a more lenient sentence.

A jury convicted Defendant of conspiracy (Pen. Code, S 182, subd. (a)(1); count 1), residential burglary (SS 459, 460; count 2), two counts of receiving stolen property (S 496, subd. (a); counts 4 and 6), and grand theft (S 487, subd. (a); count 5). In a bifurcated proceeding, Baker admitted she had four "probation denial priors" (S 1203, subd. (e)(4)), two serious felony priors (S 667, subd. (a)(1)), and two priors under the Three Strikes law (SS 667, subds. (b)-(i), 1170.12). The trial court then revoked probation in two earlier cases (San Diego Superior Court Case numbers SCE222812 and SCN145193) and set the matter for sentencing.
Court agree with the People and accordingly reverse in part and affirm in part.

A jury convicted of corporal injury to a cohabitant in violation of Penal Code section 273.5, subdivision (a), which provides in part that any person who willfully inflicts upon a current or former "cohabitant" corporal injury resulting in a traumatic condition is guilty of a felony. The jury found that Lampkin had inflicted such a corporal injury upon his former cohabitant Ladonica Whyte. The court suspended imposition of sentence and placed Lampkin on three years' supervised probation. Defendant appeals, contending the court erroneously instructed the jury as to what constitutes cohabitation under section 273.5, subdivision (a). Specifically he contends that the instruction was not a correct statement of law as it did not include a statement regarding the importance of a relationship's duration. Alternatively, he contends that the wording of the cohabitation instruction misled the jury by suggesting that a couple who live apart may be cohabitants. Court reject these contentions and affirm the judgment.

A modification decision.

Defendant pled guilty to inflicting corporal injury upon a spouse under Penal Code, section 273.5, subdivision (a) (count 1), and assault by means of force likely to produce greatly bodily injury under section 245, subdivision (a)(1) (counts 2 and 3). Defendant also admitted all of his 10 prior strike allegations. Defendant was sentenced to a total of 25 years to life in state prison under the "Three Strikes" law.
On appeal, defendant contends that: (1) the trial court erred in denying his motion to withdraw his guilty plea; (2) the trial court erred in failing to strike his prior convictions; and (3) his sentence constitutes cruel and/or unusual punishment. For the reasons set forth below, court affirm the judgment.