CA Unpub Decisions

A jury convicted defendant of one count of battery by a prisoner upon a non-confined person. The court sentenced him to the upper term of four years in prison.
Defendant appeals, contending that his conviction must be reversed because the trial court: (i) abused its discretion in denying his request for a continuance after a prosecution witness revealed that he had looked through a series of photographs prior to identifying Parra; and (ii) erred in instructing the jury pursuant to CALJIC No. 2.92 that it should consider an eyewitness's certainty in determining the weight to give eyewitness identification testimony. Parra also argues that the trial court violated his federal constitutional rights as established in Blakely v. Washington by sentencing him to an upper-term sentence under California's determinate sentencing law. Court found defendant's claims to be without merit and affirmed the judgment.

After the court denied a motion to suppress evidence, defendant entered a negotiated guilty plea to possessing stolen property. The court sentenced him to a stipulated 16-month lower term in prison.
On appeal, defendant’s counsel refers to as possible but not arguable issues: (1) whether defendant's guilty plea was constitutionally valid; (2) whether an adequate factual basis supports the guilty plea; and (3) whether the trial court erred in denying the motion to suppress evidence. The judgment is affirmed.

On September 30, 2003, defendant entered a negotiated guilty plea to robbery. On October 31, the court suspended imposition of sentence, placed him on three years' probation, and ordered defendant to pay a $200 restitution fine. The terms of defendant's probation included a condition that defendant "[n]ot associate with any known gang member . . . ." Between May 2004 and July 2005, the court repeatedly revoked Pena's probation most commonly for associating with known gang members. On January 10, 2006, the court revoked probation after finding defendant again associated with known gang members and possessed a deadly weapon. It sentenced Pena to prison for the three-year middle term for robbery, imposed a $600 restitution fine and a $600 parole revocation fine. Defendant appeals.
The judgment is affirmed as modified. The trial court shall amend the abstract of judgment to reflect reduction of the parole revocation fine from $600 to $200 and the striking of the $600 restitution fine ordered January 24, 2006.

The mother of minor appeals the judgment terminating her parental rights under Welfare and Institutions Code section 366.26. Minor contends the juvenile court erred by finding: (1) Minor was likely to be adopted; (2) the beneficial parent-child relationship exception to adoption did not apply; and (3) the Indian Child Welfare Act (ICWA) did not apply. Also, minor's appellate counsel requests we take judicial notice of postjudgment developments concerning minor's adoptability. Minor's appellate counsel and D.C.'s appellate counsel argue that if the court take judicial notice of the requested material, the court should allow the juvenile court to revisit its adoptability finding upon remand for defective ICWA notice.
The San Diego County Health and Human Services Agency (Agency) concedes, and court agreed, there was noncompliance with ICWA. Court otherwise found no error. Court declind to take judicial notice of the postjudgment developments. Accordingly, court reversed with directions on the ICWA issue.

The mother of minor appeals the adjudication and disposition order, challenging the sufficiency of the evidence to support the juvenile court's denial of reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(10), (11) and (13). Mother also contends reversal is required because the court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA).
Court concluded substantial evidence supports the denial of reunification services. Court agreed, however, that the ICWA notice was deficient as it appears the San Diego County Health and Human Services Agency did not attempt to obtain information from minor's maternal grandmother. Court reversed the order denying reunification services and directed the juvenile court to ensure proper notice is given under the ICWA.

Victim was stabbed multiple times outside a Riverside bar. When he was treated for his wounds, a nurse negligently administered an excessive amount of Heparin, a blood thinning agent. Owens subsequently bled to death. A jury convicted defendant of second-degree murder and assault with a deadly weapon plus related knife-use and street-gang enhancements. The court sentenced defendant to a total collective prison sentence of 25 years to life.
On appeal, defendant contends the medical error was a superseding cause of victim’s death, which absolved defendant of criminal culpability. Court held the medical error was a contributing cause but not the sole cause of victim’s death. Court rejected defendant’s arguments and affirmed the judgment.

A jury convicted defendant of first degree murder for strangling 67-year-old victim. The trial court sentenced defendant to 25 years to life. On appeal, defendant claims there was insufficient evidence to support that the killing was deliberate and premeditated. Defendant also claims that the trial court failed to instruct adequately on the provocation that could reduce first degree murder to second degree murder. Court concluded that there was substantial evidence to support the jury’s verdict of premeditated murder. Court also concluded that the court had no sua sponte duty to provide an additional instruction and that the instructions on the lesser offense were adequate when viewed as a whole. Court affirmed the judgment.

Defendant was the driver in a drive-by shooting which killed one person and injured another. Defendant challenges his conviction for discharge of a firearm from a vehicle and challenges the sufficiency of the evidence in support of gang enhancement allegations. Defendant also presents a number of challenges to the sentence. Court affirmed the conviction. However, court agreed that the sentence on count 3 must be stayed pursuant to Penal Code section 654 and that the parole revocation fine must be stricken. Court otherwise affirmed the sentence.

Defendant appeals from judgment entered following jury convictions for willful infliction of corporal injury (domestic violence) and misdemeanor battery. Defendant contends the trial court erred in (1) admitting evidence that, prior to the charged offenses, the victim, sustained on August 13, 2004, injuries similar to those inflicted in the charged domestic violence offense; (2) admitting an irrelevant, prejudicial portion of a 911 recorded call; and (3) giving inappropriate instructions on flight (CALJIC No. 2.52) and on prior acts of domestic violence (CALJIC No. 2.50.02). Defendant also alternatively argues, in the event he waived these issues, that he received ineffective assistance of counsel, and complains of cumulative prejudicial error. Court concluded that there was no prejudicial error, either individually or cumulatively, and thus affirmed the judgment.

Defendant pled guilty to one count of sexual penetration with a foreign object and two prior strike allegations, one for burglary and one for attempted rape. A court trial was commenced based on defendant’s additional plea of not guilty by reason of insanity. Trial was delayed due to various continuance requests, competency proceedings, and periods in which defendant was found not competent to stand trial. Trial was finally completed, and defendant was found to have been sane at the time of the offense. Defendant was then sentenced under the “Three Strikes” law to an indeterminate term of 25 years to life in prison. Defendant appealed. Judgment affirmed.

A jury convicted defendant of burglary and grand theft. In bifurcated proceedings, the trial court found him guilty of petty theft and with having suffered 6 prior convictions for which he served prison terms. Defendant was sentenced to prison for 7 years, four months.
Defendant appealed requesting this court to undertake a review of the entire record.
Court offered the defendant an opportunity to file a personal supplemental brief, and Defendant filed a thirty-seven page supplemental letter brief which was read and considered. Court concluded the independent review of the record and found no arguable issues.
The judgment is affirmed.

In case No. SWF012306, defendant pled guilty to stalking, making criminal threats, and obstructing a police officer with violence or threats. Defendant was sentenced to the agreed-to term of two years in prison. In case No. SWF012503, defendant pled guilty to arson. Defendant was sentenced to local time, which was run concurrently with his prison sentence in the case mentioned above. There is no certificate of probable cause in the record before this court.
Defendant appealed requesting the court to undertake a review of the entire record. Court concluded the independent review of the record and found no arguable issues.

Defendant pled no contest to theft from an elderly adult and making criminal threats. Defendant was granted probation, which was revoked when he violated its terms. Defendant was sentenced to prison for two years. His request for a certificate of probable cause was denied by the trial court.
Defendant appealed requesting this court to undertake a review of the entire record. Court concluded independent review of the record and found no arguable issues.

Plaintiff was a probationary deputy sheriff with the County of Riverside Sheriff’s Department. Plaintiff’s personnel file contained an incomplete background investigation into allegations that he solicited prostitutes and was involved in drug activity. During the probationary period, plaintiff was terminated for unrelated reasons. Plaintiff sought a hearing to respond to the allegations and to contest his termination. The trial court granted plaintiff only a hearing to respond to the allegations of misconduct and clear his name. Plaintiff appealed the trial court’s decision and, in an unpublished opinion, this court affirmed the trial court’s decision, holding that plaintiff was entitled to only an administrative appeal to respond to the allegations as required under the Public Safety Officer’s Procedural Bill of Rights Act. On remand, the County afforded plaintiff an opportunity to respond to the allegations. Although the County admitted that there was insufficient evidence to continue an investigation into the allegations, the hearing officer made no factual findings and the County kept the information as part of plaintiff’s background investigation file. Plaintiff filed a petition for writ of mandate in the trial court seeking a new hearing consistent with due process and any other appropriate relief. The trial court granted the petition and ordered the County to remove the allegations and any related references from plaintiff’s personnel file. The County appeals from the trial court’s decision granting plaintiff’s writ of mandate. On appeal, the County argues that the court erred in both requiring the removal of information contained in plaintiff’s background file and prohibiting the County from disclosing the information to other law enforcement agencies. Court concluded that the trial court properly interpreted the Bill of Rights Act and other relevant provisions to find that the County improperly retained the allegations of misconduct in plaintiff’s file without providing him with an adequate administrative appeal. Court also concluded that the trial court’s order to remove the allegations and all references to them from plaintiff’s file constituted appropriate relief under Government Code section 3309.5.