CA Unpub Decisions

After pleading nolo contendere to possession of a controlled substance for sale (Health & Saf. Code, § 11378)[1], defendant Raul Litonjua, Jr., was placed on probation for three years. He was subsequently taken into custody by Immigration and Customs Enforcement. Defendant then filed a motion to withdraw his guilty plea, alleging that he was denied effective assistance of counsel when his trial counsel failed to advise him of the immigration consequences of his guilty plea. The trial court denied the motion. Defendant filed a notice of appeal challenging the validity of his plea and claiming that the court erred in hearing the motion to withdraw his plea over defense counsel’s objection. Defendant also filed a request for certificate of probable cause, which the court granted.
On appeal, defendant contends that he received ineffective assistance of counsel (IAC) because his trial counsel failed to advise him of the immigration consequences of his guilty plea.[2] We affirm the judgment.

Bentley filed a timely notice of appeal.
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 Bentley the opportunity to file her own brief on appeal, but she has not responded.
STATEMENT OF FACTS
On April 18, 2012, Bentley was apprehended by Walmart security personnel with approximately $60 in stolen cosmetics in her bag. At trial, Bentley testified she had gone to Walmart to purchase items and to exchange cosmetics. She denied stealing any items and denied she had concealed cosmetics in her purse.
On June 3, 2012, Bentley and a man were apprehended at a Costco store with five DVD's concealed in Bentley's purse. She admitted to the security personnel that she and the man were shoplifting.
At trial, Bentley denied shoplifting at Costco and denied that she was aware the man had taken any DVDs. She denied that she had admitted to the security personnel that she had been shoplifting.
Prior to trial, Bentley made two "Marsden"[2] motions to replace appointed counsel. Both motions were denied.

Following a contested adjudication hearing, the juvenile court found true an allegation that Paul R. (the Minor) committed vandalism by defacing property with graffiti causing damage of less than $400, a misdemeanor violation of Penal Code section 594, subdivisions (a) and (b)(2)(A).
The Minor was declared a ward of the court and granted probation, subject to certain conditions. The Minor was placed with his parents.
Counsel for the Minor 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 the Minor the opportunity to file his own brief on appeal, but he has not responded.

Charles B. appeals jurisdictional and dispositional orders concerning four of his children, F.B., G.B., C.B. and E.B. (together the children). He contends jurisdiction over the children was not proper under Welfare and Institutions Code[1] section 300, subdivision (d) because there was no evidence any of them had been or were at risk of being sexually abused; and jurisdiction was not proper under section 300, subdivision (b) because there was no evidence they were at substantial risk of serious physical harm or illness. He also asserts the court erred by ordering the children removed from his custody. We affirm the orders.

In 2009, the court placed Miguel A. Millan on three years' probation for burglary (Pen. Code, § 459; case No. SCN233183) and receiving stolen property (Id., § 496, subd. (a); case No. SCN264484). In 2010, the court placed him on three years' probation for first degree burglary (Id., §§ 459 & 460; case No. SCN268130). In June 2012, the court summarily revoked probation in all three cases. In July, the court reinstated probation for three years and suspended execution of a four-year prison sentence: the four-year middle term in No. SCN268130 and concurrent two-year middle term sentences in each of the other two cases. Millan appeals.

A jury convicted Roberto J. Diego of assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1)) and found that Diego inflicted great bodily injury within the meaning of section 12022.7, subdivision (a) and did so to promote, further and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1).
The trial court found the alleged prison prior (§ 667.5, subd. (b)) to be not true but found true allegations that Diego had suffered a serious felony prior conviction (§ 667, subd. (a)(1)) and a strike prior (§ 667, subds. (b)-(i)).
At the time of sentencing the trial court struck the "strike" prior and the gang enhancement. The court then denied probation and selected the lower term of two years for the offense. The court then imposed three years consecutively for the great bodily injury enhancement and five years consecutively for the serious felony prior conviction for a determinate term of 10 years in prison.
Diego appeals challenging only the sentence imposed for the offense. He argues the case must be remanded for resentencing because the trial court did not understand it had discretion to strike the great bodily injury enhancement. We find the argument wholly without merit and affirm.

Community Assisting Recovery, Inc. (CARe)[1] and George Kehrer appeal from the trial court's order denying their special motion to strike on the ground that this action is a strategic lawsuit against public participation under Code of Civil Procedure section 425.16 (commonly known as the anti-SLAPP statute, hereafter section 425.16). As we will explain, we conclude that the trial court erred in denying the special motion to strike, and we therefore reverse.

Chance Sherwin Burgess appeals from a post-judgment order revoking and reinstating his probation with modified terms and conditions.
In 2009 Burgess was charged in a felony complaint with willfully inflicting corporal injury upon Quanae Williams, the mother of his child (Pen.Code, § 273.5, subd. (a), [1] count 1), first degree burglary with a person present (§§ 459, 667.5, subd. (c)(21), count 2), petty theft (§ 484, subd. (a), count 3) and misdemeanor vandalism (§ 594, subd. (a), count 4).
Burgess waived his constitutional rights to a preliminary hearing and a trial and entered a plea of no contest to inflicting corporal injury as charged in count 1. In accordance with the negotiated agreement, the trial court suspended imposition of sentence and placed Burgess on five years of formal probation on condition he serve 180 days in county jail and participate in one year of domestic violence counseling and one year of parenting classes. The remaining counts were dismissed on the People’s motion.

A jury convicted Chance Allan Warriner of burglary (Pen. Code,[1] § 459; count 1) and receiving stolen property (§ 496, subd. (a); count 2). It found true an allegation the burglary was of an inhabited dwelling. (§ 460.) In bifurcated proceedings, Warriner admitted he had suffered various prison priors, serious felony priors, and strike priors. The court sentenced him to a total prison term of 18 years.
Warriner contends: (1) the court erroneously admitted two statements, one of which did not qualify as a prior consistent statement, and another that did not qualify as an inconsistent statement; (2) the court improperly admitted a defense investigator's testimony that did not qualify as lay or expert opinion; (3) the court erroneously instructed the jury with CALCRIM No. 371 regarding consciousness of guilt; (4) the prosecutor committed misconduct during closing argument; (5) there was cumulative error; and (6) the court's failure to award him presentence conduct credits under the amended version of section 4019 violated his constitutional right to equal protection. We affirm the judgment.

Between February 13, 2012, and February 22, 2012, defendant Michael Bazley stole checks belonging to Kathleen Rosing and deposited them in his bank account. As a result, SAFE Credit Union suffered a $400 loss and Golden 1 Credit Union incurred a loss of $3,799.73.
Defendant was charged with second degree burglary ( ADDIN BA xc <@st> xl 16 s FKLFAW000001 xpl 1 l "Pen. Code, § 459" Pen. Code, § 459),[1] possession of a completed check or other financial instrument with intent to utter or pass it fraudulently ( ADDIN BA xc <@osdv> xl 16 s FKLFAW000015 xpl 1 l "§ 475, subd. (c)" § 475, subd. (c)), and identity theft ( ADDIN BA xc <@osdv> xl 18 s FKLFAW000016 xpl 1 l "§ 530.5, subd. (a)" § 530.5, subd. (a)) with an allegation that he had a prior conviction for a serious felony under the "Three Strikes" law -- a 1967 Louisiana conviction for armed robbery. Pursuant to a negotiated plea, defendant pled no contest to identity theft with a stipulated sentence of three years in state prison in exchange for dismissal of the remaining charges and the strike allegation. The trial court sentenced defendant to the stipulated three-year state prison term, imposed various fines and fees, ordered defendant to pay $4,199.73 in victim restitution, and awarded 402 days’ presentence credit (201 actual and 201 conduct).
Defendant appeals. His request for a certificate of probable cause was denied.

Appointed counsel for defendant Reginald Dewayne Gaston, Jr., asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
I

The minors I.N. and E.N. and their mother A.C. appeal from the juvenile court’s orders terminating parental rights. ( ADDIN BA xc <@st> xl 34 s DFQYXH000001 xpl 1 l "Welf. & Inst. Code, §§ 395, 366.26" Welf. & Inst. Code, §§ 395, 366.26.)[1]
They contend the juvenile court erred in failing to apply the beneficial parent/child relationship exception to adoption. In addition, the minors contend the juvenile court deprived them of due process by failing to inquire into a potential conflict of interest involving their trial counsel. We affirm.

In this case, a juvenile court referee made an order terminating the parental rights of C.W. (father) and La.J. (mother) as to minor L.J. (Welf. & Inst. Code, § 366.26.) (Case No. C071919.) Both parents filed notice of appeal from that order. However, father simultaneously moved for rehearing or reconsideration of the order (§ 252; Code Civ. Proc., § 1008),[1] alleging the hearing proceeded in his absence despite his voice mail message to the court clerk advising that he would be late. The referee purported to grant the motion and to set aside the order. At a subsequent hearing attended by father, the referee made a new order purporting once again to terminate the parental rights of both parents. Father alone filed a notice of appeal from this order. (Case No. C072166.)
After receiving father’s notice of appeal from the second order, we requested letter briefs from the parties as to whether the first appeal was moot and consolidated the appeals on our own motion and. Having read and considered those briefs, we conclude that the appeal in case No. C071919 is not moot because the referee’s original order terminating parental rights was final and conclusive. We also conclude that because all acts done by the referee after issuing that order were void for lack of jurisdiction, the appeal in case No. C072166 must be dismissed.
On the merits, the parents contend that the matter must be remanded due to failure of compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Mother, joined by father, also contends that the juvenile court abused its discretion by denying mother’s request for placement of the minor with the maternal grandmother. Respondent Sacramento County Department of Health and Human Services (the Department) disputes both contentions and asserts that the disentitlement doctrine bars the parents’ appeals because they actively concealed the minor’s whereabouts for over a year.
We conclude (1) the disentitlement doctrine does not apply; (2) assuming mother has standing to attack the denial of placement with the maternal grandmother, the court did not err by denying that placement; and (3) a limited ICWA remand is required. We reverse in case No. C071919 for further proceedings limited to ICWA and dismiss father’s appeal in case No. C072166.

After his life spiraled downhill from methamphetamine addiction, defendant Arondrei Abel-Bey killed his grandfather in a confrontation that ensued following the announcement by defendant’s wife that she was going to leave defendant. A jury found defendant guilty of first degree murder by personally using two deadly weapons, and the trial court sentenced him to 25 years to life in prison plus an additional one year for the weapon enhancements.
Defendant appeals, raising one instructional error and one abstract of judgment error. We order the abstract modified and affirm.
DISCUSSION