CA Unpub Decisions

Mary B. (mother) seeks extraordinary writ review (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested, combined jurisdictional/dispositional hearing denying reunification services under Welfare and Institutions Code section 361.5, subdivisions (b)(13) and (e)(1),[1] and setting a section 366.26 hearing as to her seven-month-old daughter, L.B.[2] Mother contends she was denied the effective assistance of counsel by her trial attorney’s failure to present evidence to establish certain facts. We deny the petition.

Francisco H., father, appeals from the juvenile court’s orders pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights to Francisco H., Jr.[1] Father argues that the Fresno County Department of Social Services (department) failed to make a proper inquiry of his child’s Indian ancestry pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.). We reject father’s contentions and affirm the juvenile court’s orders.

Francisco H., father, appeals from the juvenile court’s orders pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights to Francisco H., Jr.[1] Father argues that the Fresno County Department of Social Services (department) failed to make a proper inquiry of his child’s Indian ancestry pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.). We reject father’s contentions and affirm the juvenile court’s orders.

L.S., the guardian of Ryan B., appeals from the juvenile court’s order pursuant to Welfare and Institutions Code section 366.26 terminating her guardianship to Ryan.[1] L.S. (guardian) argues that the Merced County Human Services Agency (agency) failed to make a proper inquiry of Ryan’s Indian ancestry pursuant to the Indian Child Welfare Act (ICWA; 25 U.S.C.S. § 1901 et seq.). We reject the guardian’s contention and affirm the juvenile court’s orders.

On appeal following adjudication of a Welfare and Institutions Code section 602, subdivision (a) petition, Trevon M. contends there is insufficient credible evidence to sustain the juvenile court’s finding that he committed residential burglary. We will affirm.

On June 6, 2011, a Welfare and Institutions Code section 602, subdivision (a), petition charged minor and appellant A.C. (minor) with misdemeanor battery against a peace officer in violation of Penal Code section 243, subdivision (b) (“first petition”). On June 9, 2011, minor admitted the allegation and was adjudged a ward under Welfare and Institutions Code section 602. The juvenile court placed minor on probation for six months under Welfare and Institutions Code section 725.
On June 16, 2011, the People filed a second petition for two misdemeanor batteries, which had occurred prior to the first petition (“second petition”). Paragraph 1 of the second petition alleged misdemeanor battery on a school employee under Penal Code section 243.6, and paragraph 2 alleged misdemeanor battery on school grounds in violation of Penal Code section 243.2, subdivision (a)(1). On August 1, 2011, minor admitted the allegations in paragraph 1, and paragraph 2 was dismissed. The court placed minor on probation for six months under Welfare and Institutions Code section 725.
On November 29, 2011, the People filed a third petition charging minor with misdemeanor battery on school grounds in violation of Penal Code section 243.2, subdivision (a)(1) (“third petition”). On February 15, 2012, minor admitted the allegation. The court imposed probation terms and released minor to the custody of her mother.

According to his niece, defendant Raymond Wallace Daniels raped her twice, once when she was 7 or 8 and again when she was 12 or 13.
A jury found defendant guilty on two counts of a forcible lewd act on a child under 14. (Pen. Code, § 288, subd. (b)(1).) It acquitted him on two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) and two counts of aggravated sexual assault on a child by means of rape (Pen. Code, § 269, subd. (a)(1)). Defendant admitted one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and one prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)). As a result, he was sentenced to a total of 37 years in prison, along with the usual fines and fees.
Defendant now contends:
1. The trial court erred by failing to instruct the jury on the lesser included offense of a nonforcible lewd act.
2. The trial court erred by denying defendant’s Romero motion.[1]
We find no error. Hence, we will affirm.

A jury found defendant and appellant, John Henry Yablonsky (defendant), guilty of first degree murder (Pen. Code, § 187, subd. (a))[1] in connection with the death by strangulation of Rita Cobb, and also found true the special circumstance allegation that defendant committed the murder during the commission of a rape (§ 261). After denying defendant’s motion for new trial, the trial court sentenced defendant to state prison for the indeterminate term of life in prison without the possibility of parole.

A jury found defendant and appellant Wilbert Frank, Jr., guilty of deliberate premeditated murder. (Pen. Code, § 187, subd. (a).)[1] In relation to the murder conviction, the jury found true the enhancement allegation that defendant personally and intentionally discharged a firearm proximately causing death to another person. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).) Additionally, the jury found defendant guilty of willfully and unlawfully possessing a firearm within 10 years of a domestic violence conviction. (§ 243, subd. (e)(1).) (Former § 12021, subd. (c)(1) [eff. Jan. 2009].) The trial court sentenced defendant to prison for an indeterminate term of 50 years to life.
Defendant raises four issues on appeal. First, defendant contends the trial court erred by preventing defendant from presenting evidence reflecting he suffered from carbon monoxide poisoning at the time of the murder. Second, defendant asserts the trial court erred by not instructing the jury about the prosecution’s failure to preserve a sample of defendant’s blood that was taken at a hospital after the murder. Third, defendant contends the trial court erred by not instructing the jury on the law of provocation and heat of passion in relation to premeditation and deliberation. Fourth, defendant asserts the trial court erred by imposing restitution in the amount of $82,583.93 because the record does not support restitution in that amount. We affirm the judgment.

The Board of Administration of California Public Employees' Retirement System (PERS) appeals a judgment granting Thomas Harron's petition for writ of administrative mandamus ordering PERS to include in its calculation of his retirement benefits $222,000 in compensation he received from the Otay Water District (District) during a one-year leave of absence pursuant to a wrongful termination action settlement agreement. On appeal, PERS contends the trial court erred because (1) Harron was not excused from work during his leave of absence as required under the Public Employees' Retirement Law (PERL) (Gov. Code, § 20000 et seq.),[1] (2) his settlement payments did not constitute "compensation earnable" under section 20636, (3) he was not in the employ of the District during his leave of absence, and (4) his settlement payments were "final settlement pay," not "compensation earnable" pursuant to section 20636, subdivisions (c)(7)(A) and (f). Because we conclude Harron's settlement payments did not, as a matter of law, constitute "compensation earnable" under section 20636, the trial court erred by granting his petition.

Defendant Darren Keith Stiles pleaded guilty to unlawful possession of a firearm and admitted allegations that he had a prior strike conviction and served a prior prison term. The trial court sentenced defendant to five years in prison (the middle term of two years, doubled for the prior strike, plus one year for the prior prison term), and awarded presentence credit as follows: 513 days of actual credit and 256 days of conduct credit, calculated at the rate in existence when defendant committed the offense. The rate for calculating conduct credit in existence on July 5, 2011, was to divide the number of days actually served by four, truncate any remainder, and then multiply the quotient by two. (People v. Culp (2002) 100 Cal.App.4th 1278, 1283.)
Defendant now contends equal protection principles entitle him to presentence conduct credit calculated at the enhanced rate provided by the Criminal Justice Realignment Act of 2011 (the Realignment Act) for his days in custody from October 1, 2011, to January 10, 2013, the date of sentencing.
For the reasons set forth in People v. Rajanayagam (2012) 211 Cal.App.4th 42 (Rajanayagam) (review den. Feb. 13, 2013), the contention lacks merit.
We will affirm the judgment.

A jury convicted defendant Michael Marks of inflicting injury upon a cohabitant resulting in a traumatic injury, assault with a deadly weapon, kidnapping, criminal threat, and false imprisonment by violence or menace, all based on a November 23, 2009 attack against Dena Marks.[1] The jury also found that defendant knew and reasonably should have known that Dena was “developmentally disabled.”
Defendant now contends (1) there is insufficient evidence to support the conviction for criminal threat, and there is also insufficient evidence to support the finding that Dena was developmentally disabled; (2) the trial court had a sua sponte duty to instruct on the lesser crime of attempted criminal threat; and (3) the trial court erred in denying defendant’s motion for a new trial.

Vikas Sareen (father) appeals from an order denying his motion to modify child support. Father raises numerous claims on appeal, but without a reporter’s transcript we must assume there was sufficient evidence presented in the trial court to support the trial court’s ruling.
We will affirm the trial court’s order.

Plaintiff Howard M. Keefe, as trustee of the Sunrise Trust, and defendant Scott Arbuckle, as trustee of the Arbuckle Trust, separately invested in the construction of a Stockton house. Both received and recorded assignments of deeds of trust securing their investments. Arbuckle subsequently pursued nonjudicial foreclosure proceedings without notifying Keefe, and bought the property for less than half of its appraised value. Keefe’s interest was wiped out by the sale.
In pursuing nonjudicial foreclosure, Arbuckle retained defendant California Foreclosure, LLC (which was owned and operated by defendants Albert and Loretta Seastrand) to conduct the trustee’s sale. The Seastrands were aware of the recorded junior interests held by Keefe and Monique Bjorndal, another investor, and knew they were entitled to notice before the sale. But Keefe claimed the Seastrands back-dated and falsified their proof of compliance with the statutory notice requirement.
After Arbuckle sold the property to others, Keefe sued to set aside the sale and reinstate his trust deed. Keefe later amended his complaint to seek damages and to add allegations of intentional misconduct. Before trial, Keefe assumed Bjorndal’s interest in the property.
A jury found defendants liable to Keefe for fraud and other torts. Keefe was awarded $442,500 in general damages, and California Foreclosure and the Seastrands were ordered to pay $57,500 in punitive damages.