CA Unpub Decisions

Defendant was convicted after jury trial of second degree murder, and discharging a firearm at an occupied motor vehicle. After denying defendant’s motion to reduce the conviction to manslaughter, the court sentenced defendant to the indeterminate term of 40 years to life. On appeal defendant contends that (1) he was deprived of due process when the court refused to instruct the jury with CALJIC No. 5.43; (2) he was deprived of due process when the court instructed the jury with CALJIC Nos. 5.54 and 5.55; (3) he was deprived of due process when the court refused to instruct the jury that a pellet gun is a dangerous and deadly weapon; (4) the court erred by failing to instruct the jury sua sponte that a citizen may use deadly force in order to apprehend a fleeing burglar; (5) the judgment must be reversed due to cumulative prejudice resulting from the above errors; (6) he was deprived of due process when the court failed to instruct the jury sua sponte that a citizen may justifiably kill a burglar when the nature of the crime is such that it yields a reasonable fear of death or great bodily harm; (7) the murder conviction must be reversed due to the court’s error in instructing the jury on the principles of felony murder; and (8) the court erred by failing to grant his motion. Court affirmed the conviction.
Defendant has also filed a petition for writ of habeas corpus contending that he was deprived of the effective assistance of counsel, which the court ordered considered with the appeal. Court disposed of the petition by separate order filed this date.

After a jury found appellant to be a sexually violent predator, the trial court ordered that he be committed to Atascadero State Hospital pursuant to the Sexually Violent Predator Act. On appeal, defendant raises contentions relating to jury instructions. Judgment affirmed.

Appellant appeals from an order denying her a hearing on her Welfare and Institutions Code section 388 petition for modification. Court found no error and affirmed.

This case involves a petition by the County of Santa Clara (the County) for disclosure of juvenile dependency records pursuant to Welfare and Institutions Code section 827 (hereafter section 827). The County was a defendant in a federal action alleging misconduct and constitutional violations on the part of County social workers. A mother of four children who had been subjects of juvenile dependency proceedings had submitted a declaration in the federal action, asserting that in the course of the dependency proceedings certain County social workers had made statements violating her rights of association. In its petition under section 827, the County sought access to the juvenile court files in order to be able to counter the contentions in the mother’s declaration in the federal action.
Following two hearings in July of 2005, the juvenile court granted the County’s petition and ruled that the County attorney could examine all files in the dependency cases, but must make copies of the documents he wished to utilize and show them to the court before using them in the federal action. The court included protective orders providing that the documents not be used outside of the federal action.
The mother appealed the order and court reviewed it in an unpublished opinion. Court found that it was unclear from the record before us if the mother’s declaration in the federal case had been submitted to the juvenile court as the factual basis for the County’s section 827 petition. The declaration was not included in the record on appeal, and the court did not mention or specifically refer to it during the hearing. Although the record was later augmented with a copy of the declaration, it was not file-stamped or authenticated in any way. Court therefore remanded the matter so that the record could be perfected with the necessary declaration. However, in order to avoid the necessity of a second appeal and further delay, court proceeded to address the other arguments raised by the mother challenging the disclosure of the juvenile court records, and court rejected all of those arguments. Judgment Affirmed.

A jury found defendant guilty of second degree murder. Jury found true an enhancement for personally discharging a firearm and causing death, but it found a gang enhancement not true. The trial court sentenced defendant to 40 years to life in prison.
Defendant now contends: 1. There was insufficient evidence to support a conviction for murder, rather than voluntary manslaughter on “a sudden quarrel or heat of passion.” 2. When the jury indicated that it was deadlocked, the trial judge gave it erroneously coercive instructions. 3. The trial court erroneously calculated defendant’s pretrial custody credits. Court held that the trial court erred prejudicially by giving prohibited and coercive instructions to the deadlocked jury. Although the court must reverse on this ground, court also discuss the sufficiency of the evidence of murder, because, if defendant is correct, he could be retried for voluntary manslaughter but not for murder. Court held, however, that there was sufficient evidence of murder. Court did not discuss defendant’s contention regarding custody credits.

A modification decision.

Pursuant to a plea agreement, defendant pleaded guilty to one count of corporal injury to a spouse; in return, the remaining two counts were dismissed. Defendant was thereafter placed on formal probation for three years on various terms and conditions. On appeal, defendant contends (1) the probation condition requiring him to submit to continuous monitoring by a Global Positioning System device or other device as directed by the probation officer is invalid, unreasonable, and unconstitutional; (2) the probation condition requiring him to submit to and cooperate in field interrogations is vague, overly broad, and infringes upon his Fifth Amendment right against self-incrimination; and (3) there was insufficient evidence to support the trial court’s finding that he had the ability to pay attorney fees and the cost of probation and presentence investigation fees. Court rejected these contentions and affirmed the judgment; however, court agreed with defendant that probation condition No. 10 conditioning probation on compliance with the payment schedule cannot be imposed as a condition of his probation and must be stricken.

Plaintiff appeals from a judgment entered in favor of defendant, as Trustee of the Marjorie T. Houston Living Trust as amended on January 8, 1997, (Trustee) after a court trial. It claims that the trial court erred in failing to find that it had demonstrated the existence of sufficient written memoranda to constitute a contract for its purchase of real property from Trustee. Alternatively, it claims that the trial court erred both in failing to find that it avoided the bar of the statute of frauds because it partially performed the contract, and in failing to find Trustee equitably estopped to assert the defense. Appellant also claims that the trial court both erroneously allowed the testimony of a witness, because Trustee did not identify him during discovery, and erroneously awarded Trustee costs for attempted, but unsuccessful, service of process. Court affirmed.

Defendant, represented by counsel, pled guilty to a violation of Penal Code sections 211, robbery by force and fear and 273a, subdivision (a), child endangerment. Thereafter, Defendant was committed to state prison for two (2) years and awarded the appropriate custody credits.
Defendant appealed, requesting the court to independently review the record. Court offered the defendant an opportunity to file a personal supplemental brief, which was not done. Judgment affirmed.

On January 19, 2005, the defendant, represented by counsel, pled guilty to count one, a violation of Penal Code section 264.1, forcible rape while acting in concert, as charged in a five-count information filed by the District Attorney of San Bernardino County.
In accordance with the negotiated disposition, the defendant was placed on a formal grant of probation for 5 years on condition he spend 365 days in the local jail and the remaining counts were dismissed on motion of the District Attorney and in the interests of justice pursuant to Penal Code section 1385. Defendant appealed requesting an independent review by the court. Court concluded independent review of the record and find no arguable issues. Judgment affirmed.

A modification decision.

Petitioner seeks an extraordinary writ to vacate the orders of the juvenile court denying an evidentiary hearing on his Welfare and Institutions Code section 388 petition, terminating reunification services and setting a section 366.26 hearing as to his son. Court granted the petition.

On appeal, appellant contends he was denied his constitutional right to trial by jury and due process of law because the court imposed the upper term on the assault count based on aggravating factors that were not found by a jury beyond a reasonable doubt. Judgment affirmed.

Petitioner seeks an extraordinary writ to vacate the orders of the juvenile court issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her three children. Court denied the petition.