CA Unpub Decisions

L.D., father of the minors, appeals from the judgment of disposition. (Welf. & Inst. Code, 358, 360, 395; further undesignated statutory references are to this code.) He contends the inquiry and notice requirements of the Indian Child Welfare Act (ICWA), 25 United States Code section 1901 et seq., were not met. Court reverse conditionally and remand the matter for further ICWA proceedings.

Defendant Danny James Mitchell wrote numerous checks to merchants without having sufficient funds in his checking account. As a result of his failure to pay the entire outstanding balance owed, defendant was arrested and charged. Represented by counsel, defendant pleaded no contest to three counts of fraudulently issuing a check with insufficient funds (Pen. Code, 476a, subd. (a)) having a prior conviction for the same (Pen. Code, 476a, subd. (b)) as alleged in counts 5, 6 and 7 of the complaint, and admitted serving two prior prison terms (Pen. Code, 667.5, subd. (b)), in exchange for dismissal with a Harvey waiver of all remaining charges, as well as several other cases pending against him.

This action arises out of a landslide that occurred as a result of the City of Carlsbad and the Carlsbad Municipal Water District's (together, the City) negligent maintenance of its water system, which caused a hillside to become saturated with water. The landslide resulted in damage to and the destruction of several condominium units within the City, and the City paid approximately $12 million to settle lawsuits brought by the homeowners. The City sought indemnity from its liability insurer, Insurance Company of the State of Pennsylvania (ISOP).
When ISOP denied coverage, the City sued, and the parties brought cross-motions for summary judgment. The court granted ISOP's motion, finding an exclusion that barred coverage for "any property damage arising out of land subsidence for any reason whatsoever" barred coverage for the property damage. Court affirm.

T.L. and M.L. (the L's) appeal from orders of the juvenile court denying their petition for a change in placement of their nephew and niece, A.S. and J.S., terminating parental rights relating to the children, and placing the children for adoption. The L's contend that the court (1) improperly failed to undertake an independent assessment of whether the children should have been placed with them in accordance with Welfare and Institutions Code section 361.3, which sets forth a legislative preference for placement with relatives under certain circumstances; and (2) abused its discretion in finding that the children's best interests supported their continued placement in their prospective adoptive home. The children appeal as well, also challenging the court's best interest finding. (All further statutory references are to the Welfare and Institutions Code except as otherwise noted.) Court find the appellants' arguments unavailing and affirm the orders.

The child in this dependency action was born in California to parents who live in California. We hold that the juvenile court abused its discretion by declining to exercise jurisdiction over the matter and ruling that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, 3400 et seq.) Wisconsin rather than California is the proper forum for the proceeding, based on the mother's previous history with Child Protective Services (CPS) in that state. Court reverse the jurisdictional order with directions.

Larry W. and Kim S. appeal the dispositional judgment in the dependency case of their daughter L.W., their son L.R.W., and Kim's son, K.A.C. Larry and Kim contend that there is not substantial evidence to support the order removing the children from Kim's custody. Larry additionally contends that there is not substantial evidence to support the order denying placement with maternal grandmother, Delores W.[2] Larry and Kim join in each other's contentions. Court affirm.

Inyo Citizens for Better Planning (ICBP) petitioned the trial court for a writ of mandate directing Inyo County (the County), the Inyo County Board of Supervisors (the Board), the Inyo County Planning Commission (the Planning Commission), and the Inyo County Planning Department (the Planning Department) to (1) set aside the 2001 County General Plan Amendment that alters the definition of net acreage (GPA), for failure to prepare an environmental impact report (EIR); (2) begin the EIR process for the GPA; (3) set aside approval of Tentative Parcel Maps (TPM) 357, 358, and 350, for failure to prepare an EIR and failure to meet the zoning codes; and (4) direct the County to cease processing TPMs 357, 358, and 350 until the court determines if the project complies with the General Plan, the California Environmental Quality Act (CEQA), and the zoning codes. ICBP also requested declaratory and injunctive relief. The trial court denied ICBPs (1) petitions for writ of mandate; (2) requests for declaratory relief; and (3) requests for injunctive relief. ICBP contends (1) substantial evidence supports a finding that the GPA could have a significant impact on the environment, therefore, the County should have prepared an EIR; (2) TPMs 357, 358, and 350 do not meet the minimum lot size requirements; and (3) EIRs should have been prepared for TPMs 357, 358, and 350. Court reverse in part and affirm in part.

A jury convicted defendant and appellant Robert Lee Meraz of carjacking (count 1; Pen. Code, 215, subd. (a)),[1]robbery (count 2; 211), dissuading a witness (count 3; 136.1, subd. (b)(1)), and misdemeanor resisting a peace officer (count 4; 148, subd. (a)(1)). The jury also found that defendant personally used a firearm ( 12022.53, subd. (b)) as to counts 1 and 2, but not count 3. Defendant contends that (1) sentencing him consecutively on the witness dissuasion count violated his right to a jury trial; (2) the trial court misunderstood its discretion to strike or run the sentence on the witness dissuasion count concurrently; and (3) there was insufficient evidence to support the use of a firearm enhancement. Court disagree with the first and third contentions, but agree with the second. Accordingly, Court reverse with instructions to resentence.

A jury convicted defendant Miguel Rey Urias of petty theft with a prior (count 1Pen. Code, 666)[1]and second degree burglary (count 2 459). In a bifurcated proceeding thereafter, the jury also found true allegations that defendant had a prior strike conviction ( 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and a prior prison term ( 667.5, subd. (b)).[2] On appeal defendant makes three contentions: (1) that the courts exclusion of defendant from the trial violated his right to be present at all critical stages of the proceedings; (2) that the court prejudicially erred in admitting evidence that defendant had shoplifted from the same store on a prior occasion; and (3) that the courts true finding on the prior prison term enhancement must be set aside because neither defendants current nor prior offense were violent felonies. Court hold that none of defendants contentions are meritorious and, therefore, Court affirm.

Plaintiff Aloha Trading Company, LLC, a limited liability company (Aloha), appeals judgment entered in favor of defendant Michel Despras, trustee of the Michel Despras Trust (Despras). This action arises from a dispute over whether Aloha, lessee of the restaurant property owned by Despras, was entitled to exercise an option to extend the term of the restaurant lease. Aloha contends the trial court erred in construing the restaurant lease and addendum as precluding Aloha from exercising the option. The trial court concluded the option was personal to the original lessee, Ted Llewellyn, and could not be assigned to Aloha. Aloha argues it was the original lessee because the lease and addendum defined Lessee as including Ted Llewellyn or his assignee.

On August 25, 2008, an information alleged that on or about August 7, 2008, defendant and appellant Pete Vicario, Jr., committed the crime of assault with a deadly weapon, by means likely to produce great bodily injury, in violation of Penal Code[1]section 245, subdivision (a)(1). The information also alleged that defendant personally inflicted great bodily injury upon Martin Lopez (the victim) within the meaning of section 12022.7, subdivision (a). After a five-day jury trial, the jury found defendant guilty on the assault count and found the allegation, that defendant personally inflicted great bodily injury, true. The trial court sentenced defendant to a total term of six years in prisonthe midterm of three years on the assault count plus three years on the personal infliction of great bodily injury allegationand imposed appropriate fines and fees. Defendant appeals.

R. (father), the biological father of J., appeals from an order of the court denying his changed circumstances petition. (Welf. & Inst. Code, 388.)[1] On appeal he makes no direct challenge to the findings and orders terminating his parental rights. J.s biological mother is not a party to this appeal. Finding no error in denying his section 388 petition, Court affirm the judgment.

On May 20, 2009, in Riverside Superior Court, defendant and appellant Tyrone Rose entered into a plea agreement wherein he pled guilty to a single count of possession of a controlled substance, methamphetamine, under Health and Safety Code section 11377, subdivision (a). Defendant also admitted a prior conviction in 1999 as a prison prior under Penal Code section 667.5, subdivision (b), and a strike prior from 1994 under Penal Code sections 667, subdivisions (c) & (e)(1), and 1170.12, subdivision (c)(1). The agreement stipulated a sentence of seven years in state prison.

In 1995, appellant, Donald Wayne Reed, was sentenced to a term of 25 years to life under the Three Strikes law on his conviction for possession of a sharp instrument while a state prisoner. (Pen. Code[1], 4502.) The information had also alleged the following prior convictions: two for burglary in 1995 ( 459); two for robbery in 1988 ( 211); two more for burglary in 1988 ( 459); and one for grand theft of a firearm in 1988 ( 487, subd. (3)). At least two of these prior serious felony convictions were found to be true.

In 2007, appellant filed a habeas corpus petition in the superior court alleging that the sentencing court had not understood that it had discretion to strike one or more of the prior convictions. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) Following a hearing held in 2008, the court denied appellants request to strike his prior convictions.
Appellant contends the trial court abused its discretion when it refused to strike one or more of his prior convictions. Appellant further argues that the trial courts failure to exercise its discretion resulted in a cruel and unusual punishment. Court disagree.