CA Unpub Decisions

Defendant pled no contest to conspiracy to commit first degree robbery and admitted personal use of a firearm within the meaning of Penal Code section 12022.53, subdivision (b). In exchange, the People agreed to a maximum sentencing exposure or “lid” of 16 years and to dismiss the remaining charges and enhancements. At the time of the plea, the trial court explained and defendant confirmed he understood that he was ineligible for probation as a result of his plea.
On appeal, defendant contends the trial court erred in determining he was absolutely ineligible for probation because no legal basis exists for such a proposition. Court concluded that a determination on the merits of defendant’s claim would be improper because he failed to obtain a certificate of probable cause. Accordingly, court dismissed the appeal.

A prisoner at Calipatria State Prison, appeals from a judgment dismissing his civil rights claim after the trial court sustained a demurrer without leave to amend. Appellant sued respondent based on Dr. Torchia's failure to treat Cooper for an infection he suffered in February 2004. Court held appellant failed to allege facts showing Dr. Torchia was deliberately indifferent to appellant's need for treatment so as to support a section 1983 claim. Accordingly, court affirmed the judgment.

The City of San Diego (City) filed a petition seeking forfeiture of Bradley Noel's firearm, alleging the return of the firearm would likely result in endangering Noel or others. The court found the City proved this allegation and granted the petition.
On appeal, appellant challenges the sufficiency of the evidence to support the court's finding that returning his firearm would likely result in danger to himself or others. Appellant also contends the court failed to apply the correct legal standard. Court rejected these contentions and affirmed the order.

The mother of minors appeals orders adjudicating her five-year-old daughter, a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (d), and two-year-old Alyssa and two-month-old Elijah dependents of the juvenile court under section 300, subdivision (j). Mother also appeals the orders removing the children from her custody. Mother contends the evidence is insufficient to support the jurisdictional and dispositional orders.
The father of minors, joins in and adopts by reference the arguments presented in mother's opening brief as they relate to minors. Orders are Affirmed.

In these consolidated appeals, the parents of minor, challenge an order denying a change in placement of their son from his de facto parents to the paternal grandmother. Parents also appeals the denial of his Welfare and Institutions Code section 388 petition seeking placement of minor with him, and the judgment terminating parental rights pursuant to section 366.26. Father contends he made the requisite showings under section 388, and the juvenile court erred by not applying the statutory exceptions to adoption based on a beneficial parent-child relationship and on a beneficial sibling relationship.
The San Diego County Health and Human Services Agency (Agency) agrees with the parents that the juvenile court erred by denying placement of D.C. with the paternal grandmother in Case No. D048092. Agency does not take a position on the other appellate issues presented by Parents in Case Nos. D048385 and D048561.
The de facto parents, contend neither the parents nor Agency have standing to appeal the court's denial of the request to change minor's placement, and, in any event, the court acted well within its discretion when it denied the request. The de facto parents also contend the court did not abuse its discretion by denying Tony's section 388 petition, and did not err by not applying the beneficial parent-child relationship and the beneficial sibling relationship exceptions to adoption. Judgment and Orders Affirmed.

Defendant pled guilty to elder abuse and was placed on probation. Roughly eight months later defendant's probation was revoked when he admitted testing positive for marijuana and methamphetamine. The court denied defendant's request for a diagnostic evaluation by the Department of Corrections under Penal Code section 1203.03 and sentenced him to three years in state prison. Defendant appeals, contending the trial court erroneously failed to order a diagnostic evaluation to determine whether to send him to prison before his sentencing. Defendant also contends the trial court erred in failing to assess his eligibility for commitment to the California Rehabilitation Center (CRC). Court concluded that the trial court correctly denied the request for diagnostic evaluation and that defendant waived the commitment issue by not raising it with the sentencing court. Consequently court affirmed the judgment.

Appellant was found guilty after a jury trial of making a criminal threat and of personally using a firearm during the commission of his offense. On appeal, appellant contends the trial court erred in failing to instruct the jury on accomplice testimony. Appellant also contends the court improperly instructed the jury with CALJIC No. 2.27 concerning the testimony of a single witness. Judgment Affirmed.

Appellant appeals from an order of the juvenile court rejecting her petition pursuant to Welfare and Institutions Code section 388 to modify earlier orders of the court denying her reunification services. Appellant further contends the court failed to comply with the Indian Child Welfare Act. Judgment Affirmed.

Defendant appeals his second degree murder conviction, contending insufficiency of the evidence to support the subjective component of implied malice, prosecutorial misconduct during closing argument, and trial court error in concluding he was presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(3), without any findings by either the court or the jury. Court reversed the trial court’s denial of probation and remand the matter for resentencing. Court affirmed the judgment in all other respects.

A modification decision.

This appeal concerns whether the juvenile court erred by declaring objector Orange County Department of Education (OCDE) responsible for implementing the individual education program for a dependent of the juvenile court eligible for special education and related services under the federal Individuals with Disabilities Education Act. Since the juvenile court lacked jurisdiction to issue its ruling, court reversed the order and remanded the matter for further proceedings.

Defendant appeals from a judgment convicting him of attempted murder with enhancements for personally using and discharging a firearm, causing great bodily injury, and acting for the benefit of a gang. Defendant asserts his due process rights were violated because (1) the prosecution peremptorily challenged the only two African-Americans in the jury venire, and (2) he was prevented from presenting the testimony of a defense witness. Court rejected his arguments and affirmed the judgment.

Defendant appeals from a judgment convicting him of sale of cocaine base, possession of cocaine base for sale, and resisting an officer. Defendant's sole contention of error is that the trial court's selection of upper term sentences violated the jury trial right defined in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court rejected his argument and affirmed the judgment.

In consolidated cases defendant entered negotiated guilty pleas to attempted and discharging a firearm at an occupied motor vehicle. The court sentenced him to a stipulated 19 years in prison. Defendant appeals requesting the court to independently review the record. Judgment Affirmed.