CA Unpub Decisions

The minor, W.B., appeals from a dispositional order removing him from his mothers custody and ordering him placed in a foster home, group home, relative home, county or private facility. The minor contends the dispositional order must be reversed because the court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA, or the Act). Finding that ICWA excludes delinquencies from its notice requirements, we hold that any attempt by the State of California to expand ICWAs application to delinquencies is unauthorized under the federal preemption doctrine. Court affirm.

Jose Luis Alanis and several of his neighbors (collectively, the Alanises) sued Jurupa Community Services District (JCSD),[1]and various other parties for negligence, trespass, nuisance, and intentional and negligent infliction of emotional distress. The trial court granted JCSDs motion for a judgment on the pleadings. (Code Civ. Proc., 438, subd. (b).) The Alanises contend that the trial court erred by granting the judgment on the pleadings because the trial court incorrectly concluded that JCSD was immune from liability. Court affirm in part and reverse in part.

Daniel Lobo, a San Bernardino County deputy sheriff, was killed on October 11, 2005, allegedly as the result of negligent operation of a motor vehicle by defendant Luis Duay Del Rosario while acting in the course and scope of his employment by defendant Tamco. Del Rosario was leaving the premises of his employer, Tamco. As he drove his car out of the driveway and onto Arrow Highway, he failed to notice three motorcycle deputies approaching with lights and sirens activated. Deputy Lobo was unable to avoid colliding with Del Rosarios car and suffered fatal injuries.
Deputy Lobos widow, Jennifer Lobo, filed a wrongful death suit on behalf of herself and the Lobos minor daughter, Madison. Kiley and Kadie Lobo, minor daughters of Deputy Lobo, filed a separate wrongful death action through their guardian ad litem. Both suits alleged that Del Rosario was acting within the course and scope of his employment by Tamco at the time of the accident. The cases were consolidated by the superior court. Tamco filed a motion for summary judgment or summary adjudication of issues, contending that the evidence established as a matter of law that Tamco was not vicariously liable for Deputy Lobos death, in that Del Rosario was not acting within the course and scope of his employment, but was merely leaving work at the end of his work day, intending to go home, and was driving his personal vehicle. Kiley and Kadie Lobo filed opposition to the motion; Jennifer and Madison Lobo joined in the opposition. The court granted summary judgment and entered a judgment of dismissal as to defendant Tamco. Plaintiffs filed separate notices of appeal. Court consolidated the appeals.

Defendant, L.L. (mother), appeals from jurisdictional and dispositional orders declaring her two boys, E.L. (14 years old) and J.L. (10 years old), to be dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b),[1]and removing the children from her custody and placing them with their father. Mother argues there was insufficient evidence supporting the finding that leaving the boys with her presented a risk of harm to the children. She asserts that the juvenile court should have left the boys in her custody and ordered the less drastic alternative of family maintenance services with strict supervision by the Department of Public Social Services (DPSS). Court conclude there was sufficient evidence to support the jurisdictional and dispositional orders, and affirm the judgment.

On February 24, 2009, the Riverside County District Attorneys Office filed a petition alleging that minor A.M. came within the provisions of Welfare and Institutions Code section 602. The petition alleged that minor willfully and unlawfully (1) possessed a firearm under Penal Code section 12101, subdivision (a), a felony (count 1); possessed a firearm on the grounds of a public school without the permission of proper school authorities under Penal Code section 626.9, subdivision (b), a felony (count 2); and (3) brought and possessed a gun and sharpened screwdriver upon the grounds of a public school under Penal Code section 626.10, subdivision (a), a felony (count 3). The petition further alleged that count 1 was committed for the benefit of a criminal street gang under Penal Code section 186.22, subdivision (b).
On April 10, 2009, following a contested jurisdictional hearing, the juvenile court found true all three counts in the petition, but did not find true the gang allegation.

Appellants John Thomas, Jr., and Johnte Devon Allen (Thomas and Allen, respectively; collectively, appellants) stand convicted, following a jury trial, of first degree murder perpetrated during the commission or attempted commission of robbery, burglary, and carjacking (Pen. Code,[1] 187, subd. (a), 189, 190.2, subds. (a)(17)(A), (G) & (L); count 1), attempted premeditated murder ( 187, subd. (a), 189, 664; count 2), assault with a firearm ( 245, subd. (a)(2); counts 3 & 4), attempted robbery in an inhabited dwelling ( 212.5, subd. (a), 664; count 5), attempted carjacking ( 215, subd. (a), 664; count 6), robbery in an inhabited dwelling ( 212.5, subd. (a); counts 7 & 8), and carjacking ( 215, subd. (a); count 9). As to counts 1 and 2, the jury found that appellants personally and intentionally discharged a firearm, proximately causing great bodily injury or death ( 12022.53, subd. (d)); as to counts 3 and 4, that appellants personally used a firearm ( 12022.5, subd. (a)); and as to counts 5-9, that appellants personally and intentionally discharged a firearm ( 12022.53, subd. (c)). The People elected not to seek the death penalty, and, upon appellants convictions, dismissed criminal street gang enhancement and special circumstance allegations ( 186.22, subd. (b), 190.2, subd. (a)(22)) that had been bifurcated for trial. Thomas was sentenced to a total unstayed term of life in prison without the possibility of parole plus 25 years to life, plus life, plus 44 years 6 months. Allen was sentenced to a total unstayed term of life in prison without the possibility of parole, plus life plus 25 years to life, plus 44 years 6 months. Both now appeal, raising claims of instructional and sentencing error.[2] For the reasons that follow, Court will affirm.

It was alleged in an information filed January 21, 2009,[1]that appellant Beverly Gean Gibson committed first degree burglary (Pen. Code, 459, 460, subd. (a))[2]and that she had suffered a strike.
On March 5, the following occurred: the court granted the Peoples motion to amend the information to add a count of misdemeanor grand theft ( 487, subd. (a)); appellant pled no contest to that charge; and the court dismissed the burglary charge and placed appellant on three years bench probation. On March 19, appellant filed a notice of appeal in which she requested the court issue a certificate of probable cause ( 1237.5). Also on March 19, the court granted that request.

Appellant Steve Alvarado pled no contest to assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1]and admitted an enhancement allegation that in committing that offense he personally inflicted great bodily injury ( 12022.7, subd. (a)). The court imposed a prison term of six years, consisting of three years on the substantive offense and three years on the enhancement. Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing. Courtl affirm.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts findings and orders issued at a contested jurisdictional/dispositional hearing adjudging her infant daughter, K., a dependent child and denying petitioner reunification services and setting a Welfare and Institutions Code section 366.26 hearing. She contends the juvenile court violated her Fifth Amendment right against self-incrimination. Court deny the petition.

A jury convicted Jason Lee Fenstermacher of one count of assault as a hate crime (Pen. Code, 240, 422.7, subd. (a)), with a true finding on a gang enhancement (id., 186.22, subd. (b)), and one count of street terrorism (id., 186.22, subd. (a)). (All further statutory references are to the Penal Code).[1] The trial court sentenced Fenstermacher to consecutive prison terms of two years for assault as a hate crime, three years for the gang enhancement, eight months for street terrorism, and one year each for two prison term prior convictions, for an aggregate sentence of seven years eight months. Fenstermacher argues the evidence was insufficient to support the conviction for street terrorism and the true finding on the gang enhancement. Court disagree and affirm.

Darrell M. (father) appeals from an order finding that now 11-year-old D.M. and 7-and-a-half-year-old E.M. have a probability of being adopted, selecting adoption as the permanent plan, and continuing the permanency hearing (Wel. & Inst. Code, 366.26; all further statutory references are to this code) for 180 days for Orange County Social Services Agency (SSA) to attempt to locate adoptive parents. (Father also filed a notice of appeal challenging termination of his parental rights to his other two children but he subsequently abandoned that appeal, as acknowledged in his opening brief.) He contends the court should have determined the children are not adoptable and selected long-term foster care as the permanent plan. Court disagree and affirm.

T.N. (father) appeals from the courts order removing his daughter, L.N., from the home of her paternal grandparents and placing her in a foster home with her three older half-sisters. Court affirm.

This is the 12th appellate proceeding brought in this dissolution action by Kathey Fyke, respondent below. In the instant appeal, Kathey[1] challenges the trial courts order awarding sanctions of $16,284 under Family Code section 271,[2] to her former husband, Richard Falcone. The sanctions represent fees and costs incurred by Richard in unnecessarily preparing for a trial, which was continued at the last minute due to Katheys medical condition.
On appeal, Kathey raises the following claims: (1) her due process rights were violated as she was not given the proper notice or opportunity to be heard on Richards request for section 271 sanctions; (2) the order awarding sanctions is not supported by substantial evidence; (3) the sanctions impose an unreasonable burden on her in violation of section 271, subdivision (a); and (4) the request for sanctions was not supported by a current income and expense declaration as required by the Superior Court of Santa Clara County, Local Family Rules. Court agree that Kathey was afforded neither adequate notice nor a meaningful opportunity to be heard on the request for sanctions and therefore shall reverse.

In this second appeal, defendant Alexander Owen Skinner appeals the trial courts denial of his post judgment motion to correct presentence credits.