CA Unpub Decisions

Michael Bowen appeals from the trial court’s order renewing a restraining order against him for three additional years, arguing that reversal is necessary on multiple grounds. Sonya Lister, petitioner below, opposes Bowen’s grounds, and also argues that the appeal must be dismissed as untimely. We conclude the appeal is timely but that Bowen’s appellate claims lack merit. Therefore, we affirm the court’s order.

In this dissolution proceeding, appellant Newton Chiu appeals from the trial court’s order imputing to him $450,000 in fictive income based on his alleged failure to collect sufficient rents from community-owned apartment buildings during a 45-month period of marital separation. He claims the court relied on an erroneous legal theory in making this determination. He also contends the court erred in failing to award him reimbursement for separate property he used to maintain and repair one of the parties’ buildings.
We conclude the trial court erred in imputing $450,000 in lost rental income to appellant. We remand the matter to the court for proper determination of the amount of the parties’ equalization payment. We also conclude the trial court’s decision to deny his reimbursement request is supported by substantial evidence. We therefore reverse the order in part, and affirm in part.

B.S., mother of N.S., L.F., and T.F. (the children), appeals from the juvenile court's orders terminating her parental rights as to the children pursuant to Welfare and Institutions Code section 366.26.[1] (§ 395.) She asserts that the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) were not satisfied.
We find no error and affirm those orders.

Following a jury trial, William Travis (appellant) was found guilty of attempted premeditated murder. (Pen. Code, §§ 187, 664, subd. (a).) The jury found true the allegation that appellant had personally used a handgun within the meaning of Penal Code section 12022.53, subdivisions (b), (c), and (d) and had personally inflicted great bodily injury on the victim Fred Williamson within the meaning of sections 1203, subdivision (e)(3) and 12022.7, subdivision (a).[1] Subsequently, the court sentenced appellant to 32 years in state prison.
In this appeal appellant contends that his due process rights were violated when the prosecution suppressed favorable material evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Further, the trial court erred in excluding evidence that the victim in this case, Fred Williamson, had raped a former girlfriend. Appellant has filed a petition for writ of habeas corpus in which he asks that this court order an evidentiary hearing into what the prosecutor knew and when he knew it in connection with his claim of a Brady violation; alternatively, he asserts that his counsel was ineffective in failing to cross examine the prosecutor and prosecutor's investigator in connection with his post trial motion to set aside his conviction on Brady grounds.[2] For reasons that follow, we affirm the judgment. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)

In 1976, the trial court found defendant Milosav Milentijevic not guilty of murder (Pen. Code, § 187; all further unspecified statutory references are to the Penal Code) by reason of insanity, and committed him to the California Department of Mental Health. Since the verdict, the court has extended Milentijevic’s commitment (§ 1026.5, subd. (b)) several times. This appeal arises from the court’s recent decision to again extend Milentijevic’s commitment for two more years under section 1026.5. Milentijevic challenges the sufficiency of the evidence to support the court’s finding he had serious difficulty in controlling his dangerous behavior. Specifically, Milentijevic contends the evidence demonstrated the medication Haldol “controlled his dangerousness” and that he would “continue to take Haldol as a condition of release.” For the reasons expressed below, we affirm.

Plaintiff and appellant Lawrence Di Benedetto appeals from an order dismissing his civil action. The Attorney General, representing defendants and respondents J. Lais and L. Smart, two prison officials,[1] concedes that we should reverse the judgment of dismissal. Having reviewed the briefs and the record, we concur.
The trial court previously sustained defendants’ demurrer to plaintiff’s second amended complaint, denied leave to amend, and entered judgment against plaintiff. Although concluding the demurrer was properly sustained, this court reversed the judgment, concluding that plaintiff was entitled to further amend the complaint to attempt to state a cause of action. Our dispositional language included the following: “The matter is remanded to the superior court, and that court shall modify its May 18, 2009, order so as to grant [plaintiff] a specified reasonable amount of time within which to amend his pleading.” (Di Benedetto v. Lais, supra, F060165.)

A jury convicted Pedro Alexander Tavares of assault with a deadly weapon and by means of force likely to cause great bodily injury (Pen. Code,[1] § 245, subd. (a)(1); count 1), making a criminal threat (§ 422; count 2), and misdemeanor vandalism (§ 594, subd. (a)(b)(2)(A); count 3). Additionally, the jury found true that Tavares personally used a deadly and dangerous weapon in the commission of the assault. (§§ 12022, subd. (b)(1); 1192.7, subd. (c)(23).) The trial court suspended imposition of sentence and placed Tavares on three years of formal probation with a requirement he spend 365 days in local custody.
Tavares's sole argument on appeal is that insufficient evidence supports his conviction for making a criminal threat (count 2) because his statements to the victim, Kathleen Reiff, and his gestures did not constitute a "threat" within the meaning of section 422. We affirm the judgment.

Appellant J.C., father of the minor, appeals from juvenile court orders terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, § 395.)[1] Father claims it was error for the juvenile court to rule that the Indian Child Welfare Act (ICWA) did not apply, because notice of the proceeding was not sent to the Blackfeet Tribe of Montana.
The record establishes that the minor did not have Indian heritage with a federally recognized tribe. Accordingly, ICWA notice was not required. We will affirm the juvenile court’s orders.

Mario V., found to be the alleged father of minor Nadine V. (minor), appeals from the juvenile court’s order terminating his parental rights. (Welf. & Inst. Code,[1] § 366.26.) He first contends that the juvenile court violated his right to due process by failing to designate him a presumed father. He further contends that section 366.26, subdivision (c)(2)(A) precluded termination of his parental rights because “reasonable reunification services” were not provided to him. As we explain, because his claims are either forfeited or lack merit or both, we shall affirm.

In 2007, the St. John’s Protestant Episcopal Church of Stockton, which is a corporation (Parish Corporation), decided to disaffiliate itself from the Episcopal Church (Church) over doctrinal differences. The Diocese of San Joaquin (Diocese) of the Episcopal Church filed an action for declaratory relief against the Parish Corporation, claiming that the property retained by the Parish Corporation is owned by the Diocese and Church. The Diocese also named several individual defendants: the Parish Corporation’s priest and members of the Parish Corporation’s vestry and board of directors (Individual Defendants). The Diocese does not seek damages; instead, it seeks declarations that the Diocese owns and is entitled to possess and control the property and that, upon disaffiliation, the Individual Defendants could no longer act on behalf of the Parish Corporation.
The Individual Defendants demurred to the complaint. The trial court sustained the demurrer, citing Code of Civil Procedure section 1061, which gives the court discretion to deny declaratory relief if the relief is not “necessary or proper at the time under all the circumstances.”[1] The Parish Corporation was not a party to the demurrer proceedings and remains as a defendant in the action.
The Diocese appeals. It claims the trial court did not rely on section 1061 to dismiss the action as to the Individual Defendants and, therefore, the only relevant inquiry is whether the demurrer was sustained on the merits of the action, which inquiry requires a de novo, rather than an abuse of discretion, standard of review. The Diocese argues for the first time in its reply brief on appeal that the trial court abused its discretion under section 1061.

Plaintiff Roberta L. Barth appeals from a judgment dismissing with prejudice her action against defendant American River HealthPro Credit Union and unnamed “Doe” defendants based on Barth’s delay in prosecuting the action ( ADDIN BA xc <@st> xl 34 s ZOKPBC000001 xpl 1 l "Code Civ. Proc., § 583.410 et seq." Code Civ. Proc., § 583.410 et seq.).[1] On appeal, Barth contends the trial court lacked authority to dismiss the action with prejudice, and abused its discretion in granting the motion to dismiss because she made a credible showing of excuse for failing to serve the complaint until nearly three years had passed, because American River HealthPro Credit Union was not prejudiced. The first contention has merit: under these circumstances, the applicable statutes only allow a dismissal “without prejudice.” ( ADDIN BA xc <@osdv> xl 29 s ZOKPBC000020 xpl 1 l "§§ 581, subd. (b)(4), 583.410" §§ 581, subd. (b)(4), 583.410.) We reverse the judgment and modify the order of dismissal.

Petitioner Antoinette M. seeks extraordinary writ relief (Welf. & Inst. Code, § 366.26, subd. (l);[1] Cal. Rules of Court, rule 8.452) from the juvenile court’s order, made at the dispositional hearing after the court denied reunification services, setting a hearing pursuant to section 366.26 to consider termination of parental rights and implementation of a permanent plan for her six-month-old daughter N.M. Antoinette M. contends the juvenile court erroneously found that she was not entitled to family reunification services under section 361.5, subdivision (b)(10) and (11), which disentitles a parent from receiving reunification services when she has previously failed to reunify with a sibling or half sibling of the child and “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . .”[2]
In this case, the evidence established that siblings and half siblings of N.M. were removed from Antoinette M. in earlier proceedings due to a substance abuse problem, and Antoinette M.’s reunification services were later terminated. The dependency petition as to N.M. alleges she was removed from Antoinette M. based on mental health issues, and does not allege Antoinette M. has continued to use drugs. Nor was any evidence presented at the dispositional hearing that Antoinette M. continues to suffer from a substance abuse problem.
In response to the instant petition, the Los Angeles County Department of Children and Family Services (Department) has submitted a letter conceding that the juvenile court’s order denying reunification services to Antoinette M. and setting the matter for a hearing under section 366.26 must be set aside. Counsel for N.M. has also advised this court that N.M. does not oppose a grant of relief to Antoinette M.
The petition is granted. The matter is remanded to the juvenile court, which is directed to proceed as follows: The court shall vacate its order of December 5, 2012 denying reunification services and setting a hearing pursuant to section 366.26, and conduct a new dispositional hearing to determine the appropriate services to be provided to Antoinette M. by the Department. Antoinette M. shall receive reunification services for a period no shorter than six months.
This decision shall become final as to this court on filing. (Cal. Rules of Court, rule 8.490(b)(3).)

Antonio V. (father) appeals from the judgment adjudicating his daughter, N.V., a dependent child within the meaning of Welfare and Institutions Code section 300 subdivion (b) and placing her with mother.[1] We dismiss.

A modification decision.