CA Unpub Decisions

Appellants J.R. (mother) and B.R. (father) challenge jurisdictional and dispositional orders as to their nine children. Their sole argument is that the orders should be reversed because of a failure to comply with the notice provisions of the Indian Child Welfare Act of 1979 (25 U.S.C.A. § 1901 et seq.) (ICWA). We disagree and affirm.

This case arises out of the efforts of defendant Mirian Duncan to deprive her former husband, plaintiff Edward E. Duncan, of his right to a one-half interest in the home of her uncle, Henry Rodriguez, following his death in 2007 after years of care provided to him by plaintiff. The trial court found that after marital difficulties arose between plaintiff and defendant, defendant caused Rodriguez to change the terms of his trust so that plaintiff would no longer have a one-half interest in the home upon Rodriguez’s death and concealed that change from plaintiff thereby inducing him to continue supporting Rodriguez.
The trial court’s statement of decision and judgment awarded plaintiff a one-half interest in the property valued at between $700,000 and $750,000 and ordered imposition of a constructive trust to protect that interest. The court also determined that defendant engaged in a “clear and deliberate attempt to defraud” plaintiff, and awarded him $50,000 in punitive damages based upon the evidence of plaintiff’s expenditures on the house, the benefit defendant would otherwise receive from those expenditures and plaintiff’s efforts, and the reasonable value of the house as improved by plaintiff.

Defendant Robert Lee Eison appeals following his conviction by a jury of several sex offenses including rape causing great bodily injury. His sole contention on appeal is that the victim’s pregnancy and subsequent abortion is insufficient to support the finding of great bodily injury. We disagree and shall affirm.

Defendant Ernest J. Tacherra appeals from the trial court’s statement of decision and interlocutory judgment (judgment) after a bench trial regarding the causes of action brought against him by his brother, plaintiff James M. Tacherra, in an action for partition and other causes of action related to their partnership. The trial court found that defendant violated his partnership responsibilities in various ways and exercised its equitable powers to partition partnership real properties via sale, establish the partnership assets due to each partner, and issued related orders and relief. Defendant argues the trial court made various errors of law in doing so. Plaintiff opposes defendant’s arguments for the most part, agreeing only that the trial court made a mathematical error of $5,060 dollars that should be corrected. We agree with plaintiff.

Daniel Leonard appeals his conviction for first degree residential burglary, contending that the trial court gave an erroneous jury instruction with respect to the evaluation of eyewitness identification and that his counsel rendered ineffective assistance in failing to request a clarifying instruction. We shall affirm.

Appellant Girouard, the former husband of respondent Frazier, appeals from a judgment of dissolution entered by the trial court, a judge pro tem stipulated to by the parties. Appellant contends that the court erred by giving respondent a reimbursement from the community property estate for one-half of the value of a community property investment in two pieces of appellant’s separate real property both of which were sold during the marriage. The trial court ordered this reimbursement pursuant to the rule of In re Marriage of Moore (1980) 28 Cal.3d 366 (Moore) and In re Marriage of Marsden (1982) 130 Cal.App.3d 426 (Marsden). We conclude that, under the facts present here and the applicable law regarding the Moore/Marsden rule, the trial court erred. We hold that respondent was not entitled to any additional monetary payment at the time of the parties’ divorce because of the Moore/Marsden interest in appellant’s two previously-held properties. We thus reverse and remand the matter to the trial court for further proceedings consistent with this opinion.

This case returns to us after we decided two prior appeals in the same matter. Larisa Khazan (Khazan) and Boris Khazan (collectively plaintiffs) brought this action against Felix Braynin (Braynin), Vera Braynin, Vladislav Chernoguz (Chernoguz), and Biana Chernoguz (collectively defendants). Plaintiffs sought judicial foreclosure of a deed of trust on a property in San Francisco, alleging that defendants had defaulted on a promissory note secured by the deed of trust. They also alleged that defendants had defaulted on a second promissory note, committed fraud, and violated the Racketeer Influenced and Corrupt Organizations Act, 18 United States Code section 1961 et seq. (RICO). Defendants cross-complained for slander of title and cancellation of cloud on title. Plaintiffs prevailed on their causes of action for judicial foreclosure, declaratory relief, and default on the second promissory note and on the cross-complaint, but were unsuccessful in their fraud-based and RICO causes of action. The trial court then awarded plaintiffs contractual attorney fees in the amount of $1,370,604.
In one of the earlier appeals, Khazan v. Braynin (March 30, 2009, A113035) [nonpub. opn.] (Khazan I), we affirmed the judgment on the merits. On the same date, we reversed the order determining the amount of attorney fees and directed the trial court to reconsider plaintiffs’ fee request. (Khazan v. Braynin (March 30, 2009, A114369) [nonpub. opn.] (Khazan II). The trial court has now done so. Defendants appeal the resulting decision, and plaintiffs have filed a cross-appeal challenging the trial court’s ruling on when interest on the award should begin to accrue.
We reject defendants’ challenges to the amount of the attorney fee award, and conclude the trial court correctly ruled that interest should run from the date of the fee award on remand.

) and also found true special circumstance allegations that the murder was committed in the course of rape and burglary (§§ 190.2, subd. (a)(17)(C) & (G)). Davis was sentenced to life in prison without parole.
On appeal, Davis contends the judgment must be reversed and a new trial ordered because: (1) the jury conducted an unauthorized experiment; (2) the trial court excluded scientific material relevant to the prosecution’s DNA evidence; (3) the jury was told that Davis exercised his Miranda[2] rights during a police interview; (4) the prosecutor misled the jury during closing argument; and (5) Davis was denied his constitutional right to confront witnesses against him.
In a decision filed September 14, 2010, this court found that juror misconduct and multiple violations of Davis’s constitutional right to confrontation required us to reverse the judgment and remand this case for a new trial. Thereafter, the People filed a petition for review and, on December 21, 2010, the California Supreme Court granted the People’s petition but deferred taking further action in this case pending consideration and disposition of cases already before the court which involved the federal constitutional right to confrontation. (People v. Davis (Dec. 21, 2010) 2010 Cal. LEXIS 13302 (S187515).)

T.C. (Mother) is the mother of T.V., who was 14 years old at the time of the challenged jurisdiction and disposition orders. Mother contends the juvenile court’s jurisdiction and disposition orders should be reversed because: (1) the juvenile court conducted the disposition hearing in T.V.’s absence despite her request to be present and without inquiring as to whether she was given the opportunity to attend; (2) insufficient evidence supports removing T.V. from mother’s care; and (3) the Riverside County Department of Public Social Services (DPSS) sent incomplete ICWA[1] notices and failed to notify all required Indian tribes. As discussed post, we find the first two arguments to be without merit. However, we agree that the ICWA requirements were not satisfied, and we therefore conditionally reverse and remand for further proceedings in compliance with ICWA.

Police officers arrived at the home of defendant Joe Louis Armenta to arrest him on an outstanding warrant. One officer claimed that, in addition to knocking on the front door, he announced that they were the police; his supervisor, however, who was also knocking, did not remember this announcement.
Meanwhile, other officers opened a sliding glass door in the rear of the house. This caused an alarm to sound. Defendant started yelling. At this point, officers in both the front and rear announced their identity and purpose. Some officers then entered through the rear sliding glass door.
Defendant fired at least two shots at the officers. They fired back at him. There was a standoff for at least 40 minutes, during which the officers continued to announce their identity and purpose. Defendant fired one last shot before the officers managed to escape the house. It took a police negotiator about four hours to talk defendant into surrendering.
Defendant claimed that he mistook the officers for members of his former gang, which had put out a “green light” on him. When he realized his mistake, he tried to commit “suicide by cop.”

Defendant and appellant Chad Robert Boyko was charged with corporal injury to a spouse, cohabitant, or parent of his child, resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a), count 1),[1] stalking (§ 646.9, subd. (a), count 2), dissuading a witness by force or threat (§ 136.1, subd. (c)(1), count 3), and cutting a utility line (§ 591, count 4). It was further alleged that defendant had suffered a prior prison conviction. (§ 667.5, subd. (b).) Defendant entered a plea agreement and pled guilty to count 1. In exchange, the trial court sentenced him to two years in state prison and dismissed the remaining charges and allegation. The court imposed various fees, including a booking fee and appointed counsel fees. The court also imposed a restraining order prohibiting defendant from having any contact with the victim for the next 10 years.
On appeal, defendant contends that: (1) the imposition of the restraining order was an abuse of discretion, since the trial court failed to consider the required factors under section 273.5 before imposing it; (2) the restraining order is constitutionally overbroad; and (3) the court failed to determine defendant’s ability to pay before ordering him to pay booking fees and appointed counsel fees.[2] We agree that the trial court improperly issued the restraining order without considering the factors listed in section 273.5. We thus reverse the restraining order and remand the matter for the court to consider such factors to determine if a restraining order is necessary. We also reverse the order to pay appointed counsel fees and remand the matter for the court to make a determination of defendant’s ability to pay such fees. In all other respects, we affirm.

A modification decision.

A modification decision.

Defendant challenges Condition No. 15 of his probation—that he “reside at a residence approved by the probation officer and not move without prior consent of the probation officer”—on constitutional grounds. The trial court imposed this condition after granting defendant probation, in return for a guilty plea, and instead of imposing a three-year prison term, for entering the home of his ex-girlfriend, beating her bloody, snatching a necklace from her neck, and later violating the terms of an emergency restraining order. As discussed below, we conclude that the challenged probation condition should be changed.