CA Unpub Decisions

Defendant Tory Dwanell Stuart was convicted of assault with a deadly weapon. He now argues that the trial court abused its discretion in denying three of his motions for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We disagree.

In March 2011, defendant Alvin Dalton shot his next door neighbor, Danetta H., and her two teenage children, Dazhane H. and Dezmon H., after intervening in a physical altercation involving defendantʼs girlfriend, Lora White. As a result of the shooting, Danetta died from a gunshot wound to the head, Dazhane suffered serious injuries requiring surgery, and Dezmon suffered superficial injuries.
After defendantʼs first trial ended in a mistrial, a second jury convicted him of one count of second degree murder (Pen. Code,[1] § 187; count 1) and two counts of unpremeditated attempted murder (§§ 187, 664; counts 2 & 3). The jury found true the allegations that defendant personally used a handgun in the commission of each count (§ 12022.5, subd. (a)) and that he intentionally discharged a firearm in the commission of each count, causing death or great bodily injury in counts 1 and 2 (§ 12022.53, subds. (c); count 3, (d); counts 1 & 2). The jury also found true the allegation that defendant inflicted great bodily injury in the commission of count 2 (§ 12022.7, subd. (a).) Defendant was sentenced to an aggregate term of 83 years to life.
On appeal, defendant contends: (1) the prosecutor committed prejudicial misconduct in closing argument by misstating the law regarding heat of passion; (2) the trial court erred by failing to instruct the jury that the enhancement allegations required proof of the union of act and intent; (3) the trial court erred in imposing a $296 probation report fee without first making a determination of defendantʼs ability to pay; and (4) the trial court erred in imposing a $10,000 restitution fine. Defendant also raises ineffective assistance of counsel claims in connection with each of his contentions. We affirm.

Plaintiffs appeal from the judgment entered in their favor in this wrongful death action, asserting the damages awarded were inadequate as a matter of law. We conclude that the failure to award any damages for the noneconomic loss of two of the daughters rendered the lump-sum damages award inadequate as a matter of law. Accordingly, we reverse and remand for a retrial of the issue of damages only.

Mother appeals the juvenile court’s order terminating parental rights to her son, T.G. (almost nine years old), and daughters, S.G. (eight years old) and A.G. (six years old). She also challenges the court’s order denying her Welfare & Institutions Code[1] section 388 petition to change the court’s order terminating reunification services and setting a section 366.26 hearing.
Mother contends there was insufficient evidence to support findings that the children were adoptable and that CFS had complied with heightened ICWA[2] requirements. Mother also argues the juvenile court erred in summarily denying her section 388 petition and in not applying the beneficial parent relationship exception to termination of her parental rights. We reject mother’s contentions and affirm the judgment.

A jury convicted defendant Kristopher Dominque Sheridan of robbery (count 1 – Pen. Code, § 211)[1] and possession of a firearm by a felon (count 4 – § 29800, subd. (a)).[2] The jury additionally found true allegations defendant was personally armed with a handgun in his commission of the count 1 offense (§ 12022.53, subd. (b)) and had suffered two prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate, determinate term of 17 years’ imprisonment consisting of the following: the upper term of five years on the count 1 offense, a consecutive 10 years on the personal-use enhancement, and consecutive one year terms on each of the two prior prison terms.
After defendant’s trial counsel filed the notice of appeal, this court appointed counsel to represent defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a brief statement of the facts, and identifying six potentially arguable issues: 1) whether the trial court violated defendant’s due process right to a fair trial in requiring the defendant to be shackled during the first day of trial; 2) whether the prosecution committed prejudicial, burden-shifting misconduct by arguing there was no evidence defendant was shot in the back; 3) whether the court prejudicially erred by overruling defendant’s objection to the People’s ostensible misconduct; 4) whether the court abused its discretion by imposing the upper term on count 1; 5) whether substantial evidence supported the jury’s true finding defendant had served two, separate prior prison terms for which he failed to remain free from custody for five years; and 6) whether the court erred in finding a vehicle was used in the commission of defendant’s offenses and, thereby, revoking his driver’s license. We affirm.

Father, M.J., appeals, challenging the juvenile court’s jurisdictional, dispositional, and visitation orders involving his son, D.S. Father contends the dependency pleadings were defective and substantial evidence did not support the court’s findings and orders. We disagree and affirm the orders of the juvenile court.

Defendant Amos Terrill Ryles appeals from judgment entered following a jury conviction for making criminal threats (Pen. Code, § 422;[1] count 1). The jury also found true allegations that defendant had been convicted of a serious or violent felony (§§ 1170.12, subd. (a)(1), and 667, subds. (c) & (e)(1)), and served two prior prison terms (§ 667.5, subd. (a)). The jury found defendant not guilty of trying to prevent an executive officer from performing her duty (§ 69; count 2). The trial court sentenced defendant to 11 years in prison.
Defendant contends the introduction into evidence of an inordinate amount of prejudicial evidence of defendant’s uncharged misconduct violated his constitutional rights to due process and a fair trial. We disagree and affirm the judgment.

While defendant Darren Cooper waited at a hospital for his son to be treated for a broken jaw, the police arrested him on an outstanding warrant.[1] After searching his car, the police found 12.90 grams of methamphetamine in the trunk.
A jury convicted defendant of one count of simple possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), a lesser included offense of the charged offense, possession for sale. (Health & Saf. Code, § 11378.) Because the jury was unable to reach a verdict on count 2 for street terrorism (Pen. Code,[2] § 186.22, subd. (a)), the trial court declared a mistrial. The court found five prior convictions to be true and that two of the priors were serious or violent felony convictions. On September 6, 2012, the trial court sentenced defendant to a total determinate term of 11 years and awarded him 732 days custody credit (366 actual days, plus 366 days conduct credit). (§ 4019.)
On appeal, defendant makes two claims: the trial court erred in its rulings on the admissibility of defendant’s statements to the police and the trial court should have awarded him four additional days of credit. We affirm the judgment, modifying defendant’s custody credit to 490 days.

A modification decision.

This action reaches us at a very rudimentary stage. Plaintiff Altisource Solutions, Inc. (Altisource) filed a complaint accusing defendants of fraud and breach of contract. Simultaneously, it applied for a right to attach order, which the trial court granted against some defendants and denied against others. The facts are murky; there has been no discovery yet; and both sides have inexplicably failed to introduce evidence that one would have expected them to introduce.
It is not even clear how many appellants there are. The notice of appeal was filed on behalf of defendants Quick Home Restore (QHR) and S&H Global Trades, LLC (S&H). There is some evidence that QHR is merely a “dba” name of S&H and has no separate existence. However, there is also some contrary evidence that QHR may be a separate entity. The opening brief asserts that these two entities are one and the same, but the attached Certificate of Interested Entities or Persons suggests otherwise. We will use the term “appellants” to encompass both QHR and S&H collectively.
In this appeal, appellants contend that the trial court erred by issuing a right to attach order against them because:
1. Altisource failed to carry its burden of showing the probable validity of its breach of contract claim.
2. The trial court shifted the burden of proof by requiring defendants to produce evidence.
We find no error. Hence, we will affirm.

Marissa B. appeals the termination of her parental rights to her daughter, M.B., contending the court erred by declining to apply the beneficial relationship exception (Welf. & Inst. Code,[1] § 366.26, subd. (c)(1)(B)(i)). We affirm.

Rey Armando Murillo was charged in a fourth amended information with 22 felony counts of sex offenses involving children. He entered into a plea agreement, under the terms of which he pleaded guilty to three counts of forcible child molestation (Pen. Code,[1] § 288, subd. (b)(1)), and one count of lewd acts upon a minor (§ 288, subd. (a)). Murillo also admitted the acts involved substantial sexual conduct and agreed to a prison sentence of 36 years.
Prior to sentencing Murillo filed a motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), seeking to replace appointed counsel and seeking to set aside his guilty pleas. Both motions were denied. Thereafter the court sentenced Murillo to a determinate term of 36 years in prison in accordance with the plea agreement.
Murillo filed a timely notice of appeal and requested a certificate of probable cause (§ 1237.5). The request for a certificate of probable cause was denied.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), raising possible, but not arguable issues. We offered Murillo the opportunity to file his own brief on appeal, and he has done so. We will consider his contentions below.
STATEMENT OF FACTS
This conviction arises from a guilty plea. Thus we take the summary from the probation report. The offenses at issue here involve Murillo's molestation of his daughter from age 6 through age 13.
Murillo's plea occurred after the jury in his trial had been impaneled. Prior to his plea the trial court engaged in lengthy discussions with Murillo and fully advised him of his rights. The parties agreed that the transcript of the preliminary hearing would be used by the trial court as the factual basis for the guilty pleas.
At the sentencing hearing probation was denied and Murillo was sentenced to a prison term of 36 years. In addition the court imposed a restitution fine of $300, a security fee of $40 for each count, and a court facilities fee of $30 for each count. There were no objections to the imposition of the sentence or fees imposed.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, Lisa M. Maldonado, Deputy County Counsel, and Georgia A. Gebhardt for Plaintiff and Respondent.
C.W. appeals the juvenile court's judgment terminating her parental rights to her three children and choosing adoption as the appropriate permanent plan. (Welf. & Inst. Code § 366.26.)[1] C.W. challenges the sufficiency of the evidence supporting the juvenile court's finding that the parent-child beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) does not apply. We affirm.

E.F. and B.C. (respectively, Father and Mother) are the unmarried parents of A.F., who is now four years old. The juvenile court terminated parental rights; found the exception to termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)[1] (the "continuing benefit exception") did not apply; and ordered adoption as A.F.'s permanent plan.
Father appeals, arguing the court issued an unlawful visitation order more than a year before the termination of parental rights; the visitation order led to the diminishment of the bond between A.F. and Father, and the diminished bond led to termination of his parental rights. We conclude Father forfeited this argument, as he did not timely challenge the visitation order.
Mother also appeals, arguing the court's findings are not supported by substantial evidence; the court considered improper factors when determining whether the continuing benefit exception applied; and the court should have chosen guardianship as A.F.'s permanent plan. We conclude substantial evidence supports the court's findings, and the court did not consider improper factors in its determination.
We affirm the judgment.