CA Unpub Decisions

Defendant once again appeals from a trial court order granting plaintiff attorney's fees on appeal. Jaleh filed a motion for attorney's fees under Code of Civil Procedure section 527.6, subdivision (i), upon remittitur from this court's award in his favor in the matter of Jaleh v. Alford (June 10, 2005, E036160) (nonpub. opn.), wherein Court affirmed the trial court's award of attorney's fees upon the remittitur from a prior award on appeal (Jaleh v. Alford (Sept. 9, 2003, E032876) (nonpub. opn.)). Court take judicial notice of these prior opinions in order to provide context for this appeal. As he did in appeal E036160, Alford claims that the trial court erred in granting Jaleh' motion for attorney's fees as costs on appeal. He argues that the trial court (1) failed to determine Jaleh's entitlement to an award of attorney's fees on appeal and failed to state the legal ground upon which its award was made, (2) failed to exercise its discretion in a manner consistent with satisfying legislative intent because it did not require proof from Jaleh's attorney that he took on the appeal only because of the existence of the fee shifting statute, (3) allowed Jaleh's attorney to earn a fee from Jaleh and be paid by Alford thereby "double dipping,"and (4) wrongfully awarded fees to an attorney whose services were in violation of the rules of professional conduct. We find these arguments unpersuasive and affirm the order.

Based on two separate, gang-related incidents in March and April 2001, defendant was charged in a consolidated, amended information with the attempted robbery (count 1); assaulting with a deadly weapon (S 245, subd. (a)(1), count 2); the willful, deliberate, and premeditated attempted murder of Alfonso Stollwarth (SS 187, subd. (a), 664, count 3); shooting at an inhabited dwelling (S 246, count 4); and two counts of actively participating in a criminal street gang (S 186.22, subd. (a), counts 5 & 6). It was further alleged that defendant had one prior strike conviction (S 667, subds. (c) & (e)(1)); and committed counts 1 through 4 for the benefit of a criminal street gang (S 186.22, subd. (b)). Firearm enhancements, within the meaning of section 12022.53, subdivisions (c) (personal discharge), (d) (personal discharge causing great bodily injury), and (e) (vicarious gang liability) were alleged in counts 3 and 4. Defendant admitted the prior strike conviction, and a jury found him guilty as charged and found all enhancement allegations true. Defendant was sentenced to an aggregate term of 110 years to life, plus six years four months in prison. Defendant appeals. He contends the information did not put him on notice he was being charged with the premeditation enhancement on the attempted murder charge in count 3; insufficient evidence supports his attempted robbery conviction in count 1; the jury was erroneously instructed on the malice element of attempted murder in count 3; and the trial court erred in failing to instruct sua sponte on the lesser included offense of simple assault in count 2 and on battery as a lesser included offense in count 1. Court agree that the trial court erroneously failed to instruct on the lesser included offense of simple assault in count 2, and that the error was prejudicial. Court therefore reduce defendant's conviction in count 2 to simple assault, and remand the matter for resentencing. Court find defendant's other aforementioned claims without merit. Defendant also raises multiple claims of pleading, instructional, and sentencing error regarding the firearm and gang enhancements in counts 3 and 4. We agree with three of defendant's claims of sentencing error. Thus, Court remand the matter for resentencing in light of these errors as well as the reduction of defendant's conviction to simple assault in count 2. In all other respects, court affirm the judgment.

Defendant (father) appeals from the juvenile court's order terminating the visitation order with his daughters, and son, Father claims that the court abused its discretion in terminating visitation without finding changed circumstances or that visitation was detrimental to his children. Court disagree and affirm.

Defendant (minor) contends that the juvenile court abused its discretion in committing him to the Department of Juvenile Justice (DJJ) (formerly the California Youth Authority (CYA)). Court find no abuse of discretion.

On March 17, 2005, an amended information was filed by the Riverside County District Attorney, which charged defendant with one count of possession for sale of cocaine base (Health & Saf. Code, S 11351.5) (count 1) and one count of sale/transportation of cocaine base (S 11352, subd.(a)) (count 2). Various prior convictions were also alleged within the meaning of section 11370.2, subdivision (a), along with five prior prison terms which were also alleged, within the meaning of Penal Code section 667.5.
On June 1, 2005, the trial court denied defendant's motion to suppress evidence (Pen. Code, S 1538.5). Thereafter, on April 12, 2006, defendant plead guilty to count 2, transportation of cocaine base (S11352, subd. (a)), admitted two of the section 11370.2, subdivision (a) allegations, and one prior prison term allegation. He was sentenced that day to the low term of three years, plus an additional three years for each of the two section 11370.2 enhancements, and one year for the prior prison term enhancement, for a total prison commitment of ten years. Defendant was awarded the appropriate custody credits and his sentence was ordered to run concurrent to any parole violation.

Defendant was convicted by guilty plea of a violation of Penal Code section 289, subdivsion (d), sexual penetration of an unconscious person, and sentenced to probation, the terms of which included a year in the county jail. The remaining count of rape of an unconscious person in violation of section 261, subdivision (a)(4), was dismissed.
Defendant was arrested at his home for domestic violence, and after a contested violation of probation hearing, defendant was found to be in violation of his probation and sentenced to the middle term of six years.

Appellant is the father of minor. At a hearing held pursuant to Welfare and Institutions Code section 366.26, the juvenile court terminated father's parental rights to A. On appeal, he asserts that the court failed to comply with the notice requirements of the Indian Child Welfare Act (the ICWA) and California Rules of Court, rule 1439. Court hold that there was no violation of the ICWA. To the extent that the requirements of rule 1439 were not met, court find that any error was harmless. Accordingly, court affirm.

Defendant was convicted of robbery after driving off with the victim's portable electric generator. Defendant challenges on appeal the fact that the trial court did not give a jury instruction on the lesser-included offense of petty theft. Court conclude that the evidence warranted that instruction and that the court was required to give it on its own motion. Since the jury's choice between robbery and petty theft would have depended simply on which witnesses the jury believed, the failure to give the instruction was not harmless error.

Defendant appeals his convictions for evading arrest and driving with a suspended license. Defendant contends that the trial court erred in denying his request to change from self representation to counsel representation. Defendant also contends that the trial court erred in using a prior prison term as both an enhancement and an aggravating factor. Finally, he complains that his sentence is unconstitutionally excessive under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court agree that the one-year enhancement for the prior prison term was erroneous and should be stricken. Court affirm the judgment in all other respects.

On August 29, 2005, the Kern County District Attorney filed an information in superior court charging appellant Arturo Ramos Castro, his brother Alfredo Castro (Alfredo), and one Alfredo Lepe (Lepe) with a variety of criminal offenses. The district attorney charged appellant with the following offenses:
Counts I and III conspiracy to sell methamphetamine (Pen. Code, S 182, subd. (a)(1); Health and Saf. Code, S 11379) with five overt acts as to count I and six overt acts as to count III; and counts II and IV unlawful sale of amphetamine (Health and Saf. Code, S 11379, subd. (a)).
On August 30, 2005, appellant was arraigned, pleaded not guilty to the charges, and demanded a jury trial.
On November 9, 2005, jury trial commenced.
On November 16, 2005, both sides rested and the jury returned verdicts of guilty on counts I-IV and found the overt acts alleged in the conspiracy counts to be true.
On December 16, 2006, appellant filed a mitigating sentencing letter.
On December 19, 2005, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of five years in state prison. The court imposed the upper term of four years on count II and a consecutive middle term of one year on count IV. The court stayed upper terms of imprisonment on counts I and III (Pen. Code, S 654). The court awarded 289 days of custody credits, imposed a $200 restitution fine (Pen. Code, S 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (Pen. Code, S 1202.45), and a $20 court security fee (Pen. Code, S 1465.8). The court ordered appellant to provide samples of bodily fluids and prints (Pen. Code, S 296) and to register as a narcotics offender (Health and Saf. Code, S 11590).
On January 9, 2006, appellant filed a timely notice of appeal.
The judgment is affirmed.

On October 11, 2005, the Merced County District Attorney filed an information in superior court charging appellant Fletcher Beck as follows: count I transportation of a controlled substance (Health & Saf. Code, S 11352) with a prior controlled substance offense (Health & Saf. Code, SS 11352, 11370.2, subd. (a)) for the benefit of a criminal street gang (Pen. Code, S 186.22, subd. (b)(1)(A)).

Appellant challenges his conviction for driving under the influence of methamphetamine by arguing the trial court should have excluded from evidence his statement to officers about his methamphetamine habit. Appellant contends the statement (1) was unduly prejudicial under the applicable provisions of the Evidence Code and (2) its admission into evidence violated his due process right to a fair trial. Court conclude the trial court did not abuse its discretion in admitting the statement into evidence and that appellant's constitutional right to due process was not violated. Thus, the judgment is affirmed.

In case No. F03901692-4 (692-4) appellant entered a plea of no contest to one count of possession for sale of marijuana (Health & Saf. Code, s 11359). In case
No. F05905312-5(312-5) he entered a plea of no contest to one count of transportation for sale of cocaine base (Health & Saf. Code, s 11352, subd. (a)), and admitted a Penal Code section 12022.1 allegation that he committed this offense while he was out on bail in the aforementioned case 692-4. The pleas were pursuant to a plea bargain in which the parties agreed that appellant's sentence would not exceed six years (a "six-year lid"). Other counts charged against appellant were dismissed pursuant to the plea bargain.

Mother appeals from an order terminating her parental rights (Welf. & Inst. Code, S 366.26) to her two sons, She contends the court erred by rejecting her argument that termination would be detrimental to the boys based on their relationship with her. On review, Court affirm.