CA Unpub Decisions

These are consolidated appeals from the juvenile court judgment of dependency and a postjudgment order entered on December 13, 2007, and January 31, 2008, respectively. D.W., the father of J.A.W. and D.W. Jr., initiated proceedings in Orange County to dissolve his marriage to J.W., the childrens mother, and sought sole legal and physical custody of the children. In August 2006, the father arranged to have the children sent to him from Germany, where they were living with their mother. The family court granted the mothers petition under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention)[1]to have the children returned to Germany for further custody proceedings, and ordered the father to turn the children over to the mother. The father instead turned them over to the Orange County Social Services Agency (SSA), who took them into protective custody and filed a dependency petition on their behalf. After proceedings lasting more than a year, the juvenile court adjudicated them dependents of the court, removed them from parental custody, and restricted the mothers visitation until she completed a residential substance abuse program. Subsequently, the juvenile court issued a restraining order preventing the mother from having contact with the father or the childrens foster parents.

Following his conviction and sentencing to 30 years to life for second degree murder, petitioner David Robert Elkins told his trial counsel he wanted to file a notice of appeal. Counsel Roger Sheaks agreed to file one but states in his declaration in support of the petition that he never did for some inexplicable reason. This petition for relief was filed within a relatively short period after petitioner first became aware the notice of appeal had not been filed. (In re Benoit (1973) 10 Cal.3d 72.)
Good cause appearing, and the Attorney General having effectively waived the necessity of issuing an order to show cause, the petition for relief is granted. On petitioners behalf, attorney Randall B. Bookout is directed to prepare and file a notice of appeal in Orange County Superior Court case number 06CF1793, and the clerk of the superior court is directed to accept the notice for filing, if it is presented within 20 days of this opinion becoming final. In the interests of justice, this opinion is deemed final forthwith.

After her Penal Code section 1538.5 motion to suppress evidence was denied, defendant Jennifer Logan pleaded no contest to the felony offense of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and the misdemeanor offense of possession of controlled substance paraphernalia (Health & Saf. Code, 11364). At sentencing, the trial court suspended the imposition of sentence and placed Logan on probation for three years. The conditions of probation included, among other things, the completion of a substance abuse program and payment of various fines and fees. Court will affirm the judgment.

Yvonne B., mother of the child at issue here, appeals from a juvenile court order terminating her parental rights. (Welf. & Inst. Code, 366.26.)[1] Mother contends that the court abused its discretion by denying her section 388 petition. She also contends that respondent Department of Family and Childrens Services (the Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA, 25 U.S.C. 1901 et seq.) and the court erred in terminating her parental rights without making an ICWA determination. As Court find no abuse of discretion by the juvenile court, and further find that substantial evidence supports the courts implied finding that the ICWA does not apply, Court affirm the courts order terminating parental rights.

Defendants Kenneth Carpenter and William Gay appeal a judgment following a jury verdict that found a breach of contract and awarded plaintiffs King & Kelleher, LLP and Edward King, Jr. over $160,000 in unpaid attorney fees, plus prejudgment interest and statutory fees and costs.[1] Carpenter contends the court misinstructed the jury on the meaning of the attorney fee agreement between the parties and on the elements of an account stated theory of recovery. Additionally, he asserts the court abused its discretion when it bifurcated the trial so that his offset defense was tried after a verdict was returned on the contract claims. Court find no error and affirm.

Following a jury trial, defendant Hilary Cecil Young (defendant) was convicted of criminal threats and vandalism. On appeal, defendant contends that he is entitled to a new trial because the prosecution failed to disclose material evidence favorable to the defense in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), and Penal Code section 1054.1. Court disagree, and hence affirm.

Defendant Valery Dobrushin (Dobrushin) appeals an order granting a new trial in favor of plaintiff Linh Lai (Lai) in Lais breach of contract action involving the sale of a small business. Dobrushin contends the trial court erroneously granted the new trial motion. Court disagree and affirm.

Eddie L. Bartley, an employee of plaintiff San Francisco Bay Area Rapid Transit District (BART), injured his knee while working at one of the train stations. As a result of the injury, he had knee replacement surgery. He filed a complaint with the Fair Employment and Housing Commission (Commission) alleging that BART denied reasonable accommodation for his physical disability and discriminated against him on the basis of the disability. The evidence before the Commission demonstrated that after learning of Bartleys disability, and before making any substantive attempt to accommodate it, BART placed him on a leave of absence and mailed him a notice stating that there was no alternate or modified work available for him. Over a month later, BART offered to permit Bartley to return to work if he would waive his right of accommodation. Only after he refused to do so did BART grant him the work accommodations he had sought prior to his leave. After the Commission found that BART denied Bartley reasonable accommodation, BART filed a petition for writ of mandate challenging the Commission decision. The trial court denied the petition, determining that substantial evidence supported the Commissions findings. For the reasons explained below, Court conclude that the ruling was correct and accordingly affirm.

This dispute centers on a common interest development that is located in Mendocino County. The Irish Beach Clusterhomes Association Board of Governors and William Moores, President appeal contending the trial court interpreted the developments governing documents incorrectly. Michael Farrell, who owns a home in the development with his wife Sandra Trujillo, also appeals contending the trial court erred when it declined to award him attorney fees. Court conclude the underlying complaint was filed by an entity that does not exist and that the underlying judgment was partially void. In addition, Court affirm the order declining to award attorney fees.

Minor M.T. appeals from a jurisdictional order finding her to be a ward of the juvenile court. She contends reversal is required because the juvenile court erroneously denied her motion to suppress evidence obtained in violation of her constitutional rights to be free of unreasonable search and seizure. Alternatively, she seeks a remand to direct the juvenile court to declare whether her offense is a misdemeanor or a felony. Court affirm.

Defendant William Carl Cuneo appeals from a judgment revoking his probation and sentencing him to one year in the county jail. In revoking his probation, the trial court determined that defendant had violated numerous conditions of his probation, including that he attend intensive outpatient treatment; attend Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings as directed; appear for all scheduled appointments with his probation officer; and register as a narcotics offender. (Health & Saf. Code, 11590.) The instant appeal pertains solely to the trial courts finding that defendant failed to register as a narcotics offender. Defendant contends the registration condition was never imposed by the trial court and was, thus, an invalid basis upon which to revoke his probation. Finding no prejudicial error, Court affirm.

The trial court found defendant Reginald Edward Ellis violated probation and ordered that a prior four year suspended sentence be executed. Defendants counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) We have considered a supplemental brief filed by defendant. Court find no arguable issues and affirm.

A modification decision.

Appellants Dion Allen Courtney & Sean Michael Taylor appeal from judgments entered following a jury trial in which they were convicted of first degree murder; willful, deliberate, and premeditated attempted murder; and possession of a firearm by a felon, with gang and firearm-use findings. Appellants raise numerous contentions, including sufficiency of the evidence and evidentiary and sentencing errors. Court affirm appellants convictions, but modify Courtneys sentence and remand for resentencing Taylor on the firearm possession conviction.