CA Unpub Decisions

In September 2011, the juvenile court denied the petition of defendants and appellants D.R. and T.R. (maternal grandparents) under Welfare and Institutions Code[1] section 388 and terminated the parental rights of defendants and appellants P.R. (mother) and C.C. (father) to their children, D.C. (born in 2007) and A.C. (born in 2005) under section 366.26. Mother and the maternal grandparents contend the juvenile court erred in failing to comply with the requirements of section 361.3 to assess the maternal grandparents for placement. Mother and maternal grandparents also join in each other's arguments and those of father. Father contends:[2] (1) the paternal grandparents should have been evaluated for placement as requested in the maternal grandparents' section 388 petition; and (2) the juvenile court erred in failing to provide a complete assessment of the maternal grandparents. We find that any error was harmless, and we affirm.

A jury convicted appellant, Crystal Lee Parker, of voluntary manslaughter (Pen. Code, § 192, subd. (a)), a lesser included offense of the first degree murder offense charged in count 1, and found true a personal use of a deadly weapon enhancement (Pen. Code, § 12022, subd. (b)(1)).
On August 13, 2010, the court sentenced Parker to an 11-year term, the upper term of 11 years on her manslaughter conviction and a stayed one-year term on the arming enhancement.
On appeal, Parker contends the court committed Batson/Wheeler[1] error. We will affirm.

In September 2011, the juvenile court denied the petition of defendants and appellants D.R. and T.R. (maternal grandparents) under Welfare and Institutions Code[1] section 388 and terminated the parental rights of defendants and appellants P.R. (mother) and C.C. (father) to their children, D.C. (born in 2007) and A.C. (born in 2005) under section 366.26. Mother and the maternal grandparents contend the juvenile court erred in failing to comply with the requirements of section 361.3 to assess the maternal grandparents for placement. Mother and maternal grandparents also join in each other's arguments and those of father. Father contends:[2] (1) the paternal grandparents should have been evaluated for placement as requested in the maternal grandparents' section 388 petition; and (2) the juvenile court erred in failing to provide a complete assessment of the maternal grandparents. We find that any error was harmless, and we affirm.

Appellant E.C. (Mother) appeals the termination of her parental rights under Welfare and Institutions Code section 366.26[1] as to her three minor children, A.C. (born 1998), E.O. (born 2005), and L.Z. (born 2009) (collectively â€

A juvenile wardship petition was filed in San Bernardino County on March 18, 2010, alleging that defendant and appellant J.C. (minor) fought in a public place (Pen. Code, § 415, subd. (1), count 1) and committed simple battery (Pen. Code, §§ 242, 243, subd. (a), count 2). Minor admitted count 2, and the juvenile court dismissed count 1. The case was transferred to Los Angeles County for disposition because minor was found to reside in Los Angeles. The case was subsequently transferred back to San Bernardino County when it was discovered that minor was actually living there. A disposition hearing was held on July 6, 2011, and the court declared minor a ward and placed him on probation in the custody of his parents. Approximately two weeks later, a probation violation petition was filed alleging that minor violated the terms of his probation by leaving home without permission and staying out past the court-ordered curfew. He admitted the violation. After a contested disposition hearing on August 17, 2011, the court ordered minor to serve 169 days in juvenile hall, with credit for 29 days served. The court further ordered that minor be released to himself on his 18th birthday, which was on January 4, 2012.
Minor filed a timely notice of appeal regarding the August 17, 2011 disposition. We affirm.

Defendant Frederick Lee Mitchell appeals from his conviction of violations of Health and Safety Code sections 11350, possession of cocaine (count 1), 11351, possession of cocaine for sale (count 3), and 11352, subdivision (a), sale or transportation of cocaine (count 4). Defendant contends: (1) the trial court erred in failing to obtain a supplemental presentence report, or, in the alternative, he received ineffective assistance of counsel because his trial counsel failed to request a supplemental report; (2) he should be awarded additional custody credits under Penal Code[1] section 4019; (3) the trial court erred in failing to award actual days of custody credit after the original sentencing date; and (4) the abstract of judgment must be corrected to reflect that defendant was convicted of sale or transportation of cocaine in count 4 instead of count 5. The People correctly concede that defendant was entitled to additional actual credits and that the error in the abstract of judgment requires correction. We find no additional errors.

Following a jury trial, defendant Tom Smith was convicted of first degree murder (Pen. Code,[1] § 187, subd. (a); count 1); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 2); dependent adult abuse (§ 368, subd. (b)(1); count 3); conspiracy to commit murder (§ 182, subd. (a)(1); count 4); custodial possession of a weapon (§ 4502, subd. (a); count 5); custodial manufacture of a weapon (§ 4502, subd. (b); count 6); and misdemeanor damaging prison property (§ 4600, subd. (a); count 7). The jury further found true the enhancement allegations that, as to count 2, defendant inflicted great bodily injury within the meaning of §§ 12022.7, subdivision (a), and 1192.7, subdivision (c)(1)(8), and as to count 3, defendant proximately caused the death of a victim over the age of 50 (§ 368, subd. (b)(3)(A)). In a bifurcated proceeding, the trial court found six prior conviction allegations to be true and granted the prosecution's motion to amend the information to conform to proof. Defendant was sentenced to state prison for a term of 168 years to life. He appeals, raising claims of ineffective assistance of counsel, sentencing error, and procedural error.

A jury found defendant David Louis Fields guilty as charged of 16 counts of lewd acts on two children under age 14, namely, his daughters R. and K. (Pen. Code, § 288, subd. (a).)[1] In each count, the jury found that multiple victims were involved in the same case and that defendant had a 1977 conviction for violating section 288, subdivision (a). (§ 667.61, subds. (a), (c), (d).) The jury also found that the 1977 conviction was a prior strike. (§ 667, subds. (b)-(e).) Defendant was sentenced to 800 years to life, consisting of 25 years to life on counts 1 through 16, doubled to 50 years to life based on the prior strike, and with counts 2 through 16 consecutive to count 1.

This case involves a disagreement over the operation of a family business. Plaintiffs and appellants, Richard Van Loon (Richard)[1] and Dianne Van Loon (Dianne) (collectively referred to as Plaintiffs) brought suit against Winchester-Wesselink, LLC (LLC) and its majority members, David Thornton (David), Pauline Thornton (Pauline), Leo Wesselink (Leo), Betty Wesselink (Betty), Jules Wesselink, Sr. (Jules),[2] and his wife, Cornelia Wesselink (Cornelia) (collectively, Defendants), contending that Defendants unilaterally controlled the LLC to their own benefit and gain, and to the detriment and damage of Plaintiffs. Plaintiffs alleged causes of action for fraud, intentional and negligent misrepresentation, breach of contract, breach of fiduciary duty, and declaratory relief. Following a jury trial, judgment was entered in favor of Plaintiffs and against Defendants Jules, David, and Leo, solely on Plaintiffs' claim of breach of fiduciary duty. Plaintiffs were awarded damages in the amount of $150,000, for which each of the specified Defendants--Jules, David and Leo--was responsible in the amount of $50,000.
Defendants and appellants (Defendants/appellants) Jules, David, and Leo appeal the judgment, and Plaintiffs also appeal. Defendants/appellants raise the primary issue of â€

Fernando H. appeals following the juvenile court's adjudication and disposition of petitions filed under Welfare and Institutions Code section 300, subdivision (j),[1] alleging he sexually molested his stepdaughter, and his own three children were at substantial risk of sexual molestation unless removed from his custody. Fernando challenges the sufficiency of the evidence to support the court's findings. We affirm the judgments.

The juvenile court entered true findings of robbery (Pen. Code, § 211; count 1) and burglary (Id., § 459; count 3), both felonies, and petty theft of merchandise (Id., §§ 484, 490.5; count 4) and possession of alcohol as a minor (Bus. & Prof. Code, § 25662, subd. (a); count 5), both misdemeanors. The court continued Joel as a ward and committed him to the Breaking Cycles program for a period not to exceed 365 days, to be followed by home placement.

In 2010, John Henry Johnson II entered a negotiated guilty plea to possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted serving two prior prison terms (Pen. Code, § 667.5, subd. (b)).[1] The court placed him on three years' probation. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)) and imposed and suspended a $200 probation revocation fine (§ 1202.44). The court ordered Johnson to pay a $50 criminal lab analysis fee (Health & Saf. Code, § 11372.5) and a $100 drug program fee (Id., § 11372.7), and deemed "all fines/fees satisfied by credit [for] time served."

Guillermo Nunez entered a negotiated guilty plea to two counts of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)).[1] The court sentenced him to two concurrent eight-year upper prison terms. Nunez appeals, contending the $300 sex offender registration fee (§ 290.3) must be reduced to $200. Respondent properly concedes the point.
Section 290.3, subdivision (a) now states: "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." Between September 1, 2002, and January 19, 2004, when Nunez committed the above offenses, the fees were $200 for the first conviction and $300 for the second conviction. To avoid an ex post facto violation, the $300 fine imposed on Nunez must be reduced to $200. (People v. Voit (2011) 200 Cal.App.4th 1353, 1372.) The sentencing court imposed only one section 290.3 fee, and from the silent record we presume the court determined Nunez did not have the ability to pay a fee for his second conviction. (People v. Walz (2008) 160 Cal.App.4th 1364, 1371.)

Plaintiff Mike Yellen appeals a judgment after the court granted the request of defendant Wells Fargo Auto Finance (Wells Fargo) to dismiss Yellen's action as a terminating sanction for abuse of the discovery process and not complying with the court's discovery order. Yellen contends the court abused its discretion by granting Wells Fargo's request for dismissal because he ultimately complied with the court's order. However, because it took Yellen more than a year to comply with the order, we conclude the court did not abuse its discretion in dismissing the action. We affirm the judgment.