CA Unpub Decisions

Respondents, Robert S. Bennett, William M. Bennett, Matthew Bennett, Adam Bennett, Robert W. Crosby Bennett, Kiley Marie Corrigan Bennett, Casey Michael Bennett, and Lindsay Brooke Bennett, are beneficiaries of the Bennett Family Trust - 1989 (Trust). Respondents applied to the trial court for an advance ruling under Probate Code[1]section 21320 on whether a proposed petition would be a contest of the Trust. This petition seeks a determination that two amendments to the Trust executed by appellant, Richard W. Bennett, in his capacity as attorney in fact, were void by law. The trial court ruled the proposed petition did not violate the Trusts no contest clause. As discussed below, the trials ruling was correct. Contrary to appellants position, respondents proposed petition does not violate the no contest clause as a matter of public policy under section 21305, subdivision (b)(1).

S.G. was found to come within the provisions of Welfare and Institutions Code section 602, subdivision (a),[1]in that he committed a home invasion robbery, residential burglary, and trespass. S.G. contends there was insufficient evidence to support the findings that he committed robbery and burglary. He also contends he received ineffective assistance of counsel. Court will affirm.

Appellant I.A., a minor, admitted an allegation, set forth in a juvenile wardship petition (Welf. & Inst. Code, 602),[1]that she committed second degree robbery (Pen. Code, 211, 212.5, subd. (c)). At the subsequent disposition hearing, the juvenile court adjudged appellant a ward of the court, ordered her committed to the Division of Juvenile Facilities (DJF)[2]and declared her maximum term of physical confinement (MTPC) to be five years. On appeal, appellant contends (1) the court abused its discretion in ordering appellant committed to the DJF, and (2) in setting the MTPC, the court failed to exercise its discretion under section 731, subdivision (b) (section 731(b)). Court affirm.

On February 20, 2008, appellant, Frank Armando Nall, was charged in a criminal complaint with attempted murder (Pen. Code, 664 & 187, subd. (a), count one),[1]assault likely to cause great bodily injury ( 245, subd. (a)(1), count two), corporal injury to a spouse/cohabitant/childs parent ( 273.5, subd. (a), count three), and making criminal threats ( 422, count four). As to each count, an enhancement was alleged that appellant inflicted great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)). The complaint further alleged that appellant had a prior serious felony conviction within the meaning of the three strikes law ( 667, subds. (b) through (i) & 1170.12, subds. (a) through (d)) and section 667, subdivision (a)(1). The judgment is affirmed.

At a Welfare and Institutions Code[1] section 366.21, subdivision (f), 12-month permanency review hearing, the court found reasonable reunification services had not been provided to dependent D.B.s parents, including his father, appellant K.B. The court therefore continued reunification services for the parents and continued the permanency review hearing under section 366.21, subdivision (g)(1). The Welfare and Institutions Code requires the court to conduct a continued permanency review hearing within 18 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian . . . . ( 366.21, subd. (g)(1), see also 361.5, subd. (a)(2) [court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian].) As dependent was first taken into custody in May 2007, the court scheduled the continued permanency review hearing for October 30, 2008.
Father appeals, claiming the court should have prospectively ordered the continuation of reunification services past the scheduled 18-month review based on the inadequacy of previous services. Court affirm. The court correctly deferred to the 18-month review hearing the question of whether to extend services beyond the 18 months authorized by the statute. The issue raised by father on appeal, based on the record before us, is not ripe.

After a hung jury in the first trial, a second jury convicted defendant Jeremiah Paul Helms of child abuse causing death and second degree murder. The court sentenced him to 25 years to life in state prison. Defendant appeals, asserting claims of insufficiency of the evidence, erroneous denial of his mistrial motion, prosecutorial misconduct, and failure to award presentencing credits. He also argues the abstract should be amended to reflect he was convicted of second degree, not first degree, murder. The Attorney General agrees with this last contention, as do we. As amended, the judgment is affirmed.

These five consolidated appeals have been filed in this court by appellant Ester Adut in a dissolution matter initiated in 2002. Appellant appeals from the trial courts final judgment on custody, and rulings set forth in various minute orders. She also appeals the final judgment on reserved issues, including child and spousal support. She appeals an order denying her oral motions for attorney fees and for a referral to Family Court Services. She appeals orders denying her posttrial motions to modify child and spousal support. Finally, she appeals the order denying her requests for predissolution child and spousal support, as well as compensation for time spent caring for her children when respondent was traveling out of the country. Court affirm all the judgments and orders.

A jury convicted defendant Michael Scott Posey of murdering his estranged wife by shooting her in the head. (Pen. Code, 187, 12022.5, subd. (a).) Defendant appeals his conviction, and presents numerous claims on appeal. Most of the claims assert that evidence was wrongly admitted. Defendant contends that the trial court erred in admitting evidence relating to: (1) prior instances of defendants misconduct indicating a character for violence; (2) defendants threats to kill his estranged wife; (3) spousal rape; (4) defendants statement that he would kill a wife who made divorce difficult and costly; and (5) expert opinion testimony that defendants account of an accidental shooting is inconsistent with the physical evidence. Defendant also asserts prosecutorial misconduct and ineffective assistance of defense counsel. Court reject these claims and affirm the judgment.

At a preliminary hearing where a judge acting as magistrate denied his motion to suppress evidence (Pen. Code, 1538.5), defendant Albert Louis Camacho was held to answer to one count of possessing cocaine for sale (Health & Saf. Code, 11351), with allegations of four drug priors (three alleged to be priors under id., 11370.2, subd. (a)). After that ruling was twice upheld on the same evidence, first on a motion to dismiss (Pen. Code, 995) and then on a renewed motion (citing id., 1538.5, subd. (i)), Camacho entered a changed plea of no contest in return for an indicated low term of two years in prison, with the court adding, over the prosecutors objection, that it would allow Camacho to remain on bail pending an appeal. Sentenced on November 7, 2007, to the indicated low term (with priors stricken for sentencing purposes), and with bail allowed as indicated, Camacho appeals, challenging the denial of suppression (Pen. Code, 1538.5, subd. (m)). Court reject his challenge and affirm the judgment.

David Barker petitions this court, for the second time, for a writ of habeas corpus to effect his release from state prison. On his first trip here, we held that, according to the then-prevailing standard of In re Rosenkrantz (2002) 29 Cal.4th 616, and our decisions in In re Scott (2004) 119 Cal.App.4th 871 and In re Scott (2005) 133 Cal.App.4th 573, that there was not some evidence in the record to support the decision of a panel of the Board of Parole Hearings (Board)[1] denying Barker parole. We directed the Board to conduct a new hearing. (In re Barker (2007) 151 Cal.App.4th 346, 378 (Barker I).) The Board held a new hearing, but the two-member panel could not agree, thus sending the matter to the entire eleven person Board. A unanimous Board (with one abstention) granted Barker parole. The Governor reversed the Boards decision on the ground that releasing Barker would pose an unreasonable risk of danger to society at this time, a decision that was based solely upon the circumstances of the offenses for which Barker has been in prison for 31 years. Barker then filed this second petition. Applying the standard recently announced by our Supreme Court in In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence), Court conclude that Barker is entitled to relief because the circumstances of the commitment offenses do not, in and of themselves, establish that he remains a threat to public safety. It follows that there is not some evidence in the record probative on the issue of Barkers current dangerousness if released, and the Governors decision cannot stand. Accordingly, Baker is entitled to release.

Thomas Turner appeals an order extending his commitment as a mentally disordered offender (MDO). His counsel on appeal has filed an opening brief that asks this court to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436. Because Wende review is not available under these circumstances, Court will dismiss the appeal.

A jury convicted appellant Jorge Cruz of offering to sell cocaine base (Health & Saf. Code, 11352, subd. (a))[1]and possession of cocaine base for sale ( 11351.5). Appellant filed a timely appeal. Appellant has asked this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436.

This appeal is taken from the contested revocation of appellants probation as authorized by Penal Code section 1237. Appellants counsel raises no issues and asks this court for an independent review of the record as requested by People v. Wende (1979) 25 Cal.3d 436. Appellant has not filed a supplemental brief.

Britton Leonard Azbill, Jr. appeals from a judgment of conviction and sentence imposed after he entered a plea of no contest. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738) in order to determine whether there is any arguable issue on appeal. Court find no arguable issue and affirm.