CA Unpub Decisions

Respondent Steven Andrews (Father), the father of two children, is a twice-convicted child molester and a registered sex offender. In 1984 he pled guilty in Arizona to one count of attempted molestation, for which he was placed on probation. Fourteen years later, following seven years of marriage to appellant Alaina Berry (Mother), as his son was approaching four years of age and Mother was pregnant with their daughter, he was arrested again for child molestation. He pled no contest in Sutter County to felony annoying or molesting a child under the age of 18 years, and again he was placed on probation. Less than a year passed before his marriage and relationship with his two children were altered forever when he violated probation and subsequently was sentenced to three years in prison. In the ensuing marital dissolution proceeding, Mother was granted sole physical and legal custody; Father was authorized supervised visitation, initially by an interim court order and later under a 2002 marital settlement agreement between the parties.

A modification decision.

Convicted of burglary (Pen. Code, 459) and possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)), defendant Duane Keita Hercules appeals the trial courts denial of his suppression motion. Court affirm the judgment.

In 1986 a jury convicted Tyrone Johnson of second degree murder with the personal use of a firearm and the trial court sentenced him to prison for 17 years to life. Johnson, now 48 years old, has remained in prison for the past 23 years and appears to have been an exemplary inmate. He became eligible for parole in 1996. Although the Board of Parole Hearings (the Board) found him unsuitable for parole at numerous earlier hearings, the Board found him suitable for parole at his 2008 suitability hearing when it concluded Johnson did not pose an unreasonable risk of danger to society if released on parole. However, Governor Arnold Schwarzenegger (the Governor) reversed the Board's decision, finding Johnson's release "would pose an unreasonable risk of danger to society at this time." After the trial court denied his request for habeas relief, Johnson filed the present petition for writ of habeas corpus, raising numerous challenges to the Governor's decision. We conclude the record does not contain "some evidence" to support the Governor's ultimate conclusion that Johnson was unsuitable for parole because he currently posed an unreasonable risk to public safety. Accordingly, Court grant Johnson habeas relief and order reinstatement of the Board's parole release order.

A jury convicted defendant, Miguel Disarufino, of kidnapping for carjacking (Pen. Code, 209.5, subd. (a))[1]and carjacking ( 215, subd. (a)), during both of which he used a firearm ( 12022.53, subd. (b)). He was sentenced to prison for life plus 10 years and appeals claiming his Marsden[2]motion was improperly denied, insufficient evidence supports the aggravated kidnapping conviction, he cannot be convicted of both kidnapping for carjacking and carjacking, and the jury was misinstructed. We reject all his contentions, save the third and we reverse his carjacking conviction, strike its attendant gun use finding and reverse their sentences. Otherwise, court affirm.

A jury convicted defendant Miguel Angel Rivas of attempted extortion (count 1Pen. Code 524),[1]conspiracy to commit extortion (count 2 182, subd. (a)(1), 518), and extortion by posing as a kidnapper (count 3 210). In addition defendant admitted an allegation that he was out on bail on another charged offense when he committed the instant crimes. ( 12022.1.) The court sentenced defendant to an aggregate term of three years incarceration.
On appeal, defendant makes three contentions: (1) the prosecutor committed Wheeler/Batson[2]error in utilizing a peremptory challenge to excuse the only African-American from the venire panel; (2) the prosecutor committed reversible error by failing to provide defendant with timely statutory discovery of the testifying FBI agents report until after he had already begun testifying; and (3) the prosecutor committed prejudicial misconduct in her rebuttal argument by commenting on defendants failure to testify. Court affirm the judgment in full.

Plaintiff and appellant, the Riverside County Department of Public Social Services (the Department), appeals after the juvenile court dismissed a dependency petition that the Department had filed on behalf of J.A., D.A. and A.S., the three minor children of defendant and respondent T.A. (mother). In October 2008, mother and her boyfriend were arrested on drug charges. Mother requested that the children be placed with her sister. The children were almost immediately placed with the maternal aunt as requested, and the court later dismissed the petition without assuming jurisdiction over them. The Department appeals, arguing that the court erred in dismissing the petition. Court reverse and remand with directions to reinstate the petition, and to make findings that the children are persons described by Welfare and Institutions Code section 300.

Petitioner A.C. (Mother)[1] seeks review of an order of the trial court denying her reunification services with respect to Z.B. (the minor). Because the denial was statutorily authorized and there is no clear and convincing evidence that services would be in the minors best interest, we deny the petition. Court also hold that the trial court did not err in denying visitation to Mother pending the hearing scheduled pursuant to Welfare and Institutions Code section 366.26.

Appellant Satterfield failed to answer a civil complaint filed by respondent Rosamond Community Services District (the District). Appellants default was entered, and the District later obtained a default judgment. According to the complaint, appellant purchased property auctioned by the District and located on Diamond Street in Rosamond, California, but the grant deed prepared by a title company mistakenly included a legal description of an additional parcel of District property located on 20th Street in Rosamond. The default judgment reformed the recorded grant deed to include the legal description only of the Diamond Street property, quieted the Districts title as owner in fee simple of the 20th Street property, and awarded the District $18,176.60 in attorney fees and $479 in costs. More than six months after appellants default was entered, appellant moved to set aside the default and default judgment. The court denied appellants motion, and he now appeals from the courts order denying the motion.

On September 22, 2008, appellant, Carlos Hernandez, was charged in an information in case No. MCR032875 with threat to a public officer (Pen. Code, 71, count one),[1]committing his offense while actively involved in a criminal street gang ( 186.22, subd. (a), count two), and a misdemeanor allegation of loitering or prowling ( 647, subd. (h), count three). An information was filed on December 3, 2008, in case No. MCR033494 alleging one count of felony second degree burglary ( 459) and an on-bail enhancement for reoffending while being released in the first action ( 12022.1).

V.L. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, 366.26) to her daughter J. Mother contends respondent Stanislaus County Community Services Agency (agency) failed to fully comply with the notice requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. 1901 et seq.). She also argues she demonstrated a sufficiently beneficial bond with J. so as to defeat the statutory preference for adoption. On review, Court disagree and affirm.

A jury convicted Sheila Marie Sikat of 55 counts of child sexual molestation, including sodomy of a person under age 14, lewd acts upon a child, oral copulation of a person under 14 years of age, anal or genital penetration by a foreign object of a person under 14 years of age, and using the victim to film sexual conduct involving a minor. (Pen. Code, 286, subd. (c)(1); 288, subd. (a); 288a, subd. (c)(1); 289, subd. (j); 311.4, subd. (c), hereafter 311.4(c); all further statutory references are to the Penal Code unless otherwise noted.) The victim was defendants four-year-old niece, Y.S. Defendant challenges the sufficiency of the evidence to support her conviction for filming sexual conduct by a minor. Specifically, she argues the child victim must be conscious during filming so that he or she can engage in the posing or modeling prohibited by statute. ( 311.4, subd. (c).) In other words, there is no violation if the offender poses or models an unconscious or passively involved child. Defendant also argues the trial courts comments at the sentencing hearing revealed both an appearance of bias against her requiring disqualification (Code Civ. Proc., 170.1) and a probability of bias infringing her right to due process.[1]As we explain below, defendants contentions are without merit. Court therefore affirm the judgment.

Appellant Linda Cator brought a wrongful death action against respondent Homayan Bakhtar for the death of her daughter, Andrea Nelson. The trial court found Cator failed to prove by a preponderance of the evidence that Bakhtar was responsible for Nelsons death. Cator argues overwhelming evidence establishes as a matter of law that Bakhtar was a substantial factor in causing Nelsons death. She ignores the trial courts role in making credibility determinations and weighing evidence. Court determine whether substantial evidence supports the judgment. It does, and Court therefore affirm.

A jury convicted Hector Fernando Cisneros Nunez of possessing methamphetamine for sale (Health & Saf. Code 11378), and the court sentenced him to serve the statutory two-year midterm sentence. On appeal, Nunez contends the prosecution produced insufficient evidence of his intent to sell the methamphetamine he admittedly possessed, and that the prosecutor committed misconduct by improperly vouching for the credibility of one prosecution witness. Court find no merit in either contention and affirm the judgment.