CA Unpub Decisions

A jury convicted Ryan Patrick McAdams of burglary (Pen. Code,[1] 459) and the use of tear gas for purposes other than self-defense ( 12403.7, subd. (g); see also 12401 [defining " '[t]ear gas]' "]). The jury also found true an allegation that the burglary was of an inhabited dwelling ( 460), that a person other than an accomplice was present in the dwelling ( 667.5, subd. (c)(21)), and that McAdams personally used a dangerous weapon (tear gas) ( 12022, subd. (b)(1)). The trial court sentenced McAdams to three years of probation and required him to serve 120 days in custody at a work furlough facility.
McAdams appeals, contending that his convictions must be reversed due to the trial court's instructional errors. Specifically, McAdams argues that the trial court erred by (i) failing to instruct the jury to consider a prior assault suffered by McAdams in evaluating his claim of self-defense; (ii) instructing the jury that the right to use force in self-defense ceases to exist when the danger ends (CALCRIM No. 3474); (iii) instructing the jury that a person cannot claim self-defense if he provokes a fight or quarrel with the intent to create a justification for the use of force (CALCRIM No. 3472); (iv) instructing the jury to consider the evidence (as opposed to the potential absence of evidence) in determining whether the prosecution had proven his guilt beyond a reasonable doubt (CALCRIM No. 220); and (v) instructing the jurors to use their "common sense and experience" (i.e., information outside the record) in evaluating witness testimony (CALCRIM No. 226). As discussed below, Court find these contentions to be without merit and affirm.

Plaintiff Fatema Qassimyar, in propria persona, appeals from an order quashing service of process on Laura T. Martin, M.D. in plaintiff's action arising out of medical care Dr. Martin provided to her in June 2003.[1] The trial court granted Dr. Martin's motion on grounds she had already been dismissed from the case as an unserved, non-appearing party and that the summons and complaint consequently had no legal effect. Plaintiff challenges the order on grounds she properly served Dr. Martin on October 2, 2007, in the state of Ohio. Court affirm the order.

Alma U. appeals orders at a six-month review hearing continuing her children, Andrea U., Christian U. and E.U., as dependents of the juvenile court and continuing their placement out of her care. She contends the findings the children would be at a substantial risk of detriment if returned home and reasonable reunification services had been provided were not supported by substantial evidence. Court affirm the orders.

Arlene R. seeks writ review of orders terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing regarding her daughter, S.D. She argues she was not provided with reasonable reunification services. Court deny the petition.

Clara Newton, a 67-year-old certified Spanish language court interpreter, sued the Superior Court of Riverside County for age discrimination in hiring and for breach of contract. She appeals a judgment entered following the trial courts grant of a motion for summary judgment filed by defendant Superior Court for the State of California, County of Riverside (hereafter RCSC or the court). In addition to contending that summary judgment was improperly granted, she contends that the trial court improperly sustained a demurrer to her fraud cause of action against four individual defendants and improperly denied her ex parte application to reassert that cause of action. Court will reverse the judgment in part. For that reason, we will not address the issue raised in the cross-appeal.

Plaintiff and appellant Dianne Myslicki appeals after the court dismissed her automobile personal injury action as a sanction for failure to respond to discovery. Six months after the terminating sanction, plaintiffs counsel moved to vacate the dismissal. The trial court denied the motion to vacate. Plaintiff appeals from the judgment. Court affirm.

Ernest Matthew Valenzuela (defendant) argues: that the evidence was insufficient to support the trial courts finding that one of his prior convictions was a strike; that the court committed prejudicial error by admitting evidence of the contents of a bag found in his truck; and that the sentence on one of his current convictions must be stayed pursuant to the provisions of Penal Code section 654. Court are persuaded by none of defendants arguments and will affirm.

This is the second appeal in this case. In the first appeal, Silver Valley Propane, Inc. v. Lamanco, Inc. et al., case No. E037389 (filed 8/21/2006), Silver Valley Propane (SVP) appealed from a postjudgment order granting a new trial on damages following a jury verdict in favor of SVP and against defendants Louie Laymance (Laymance), Julie White (White), Lamanco, Inc. dba Kelly Gas (Lamanco/KELLY), Kellie Robinson (Mrs. Robinson), Lloyd Robinson (Mr. Robinson), K&L Gas (K&L), Collette Davis (Mrs. Davis), Leland Davis (Mr. Davis) and Skyfire Propane (SKYFIRE)[1]based on their violation of the California Unfair Practices Act (UPA) (Bus. & Prof. Code, 17001 et seq.[2]). We affirmed the postjudgment order and remanded the case for retrial on the issue of damages only. Both parties waived jury, and the matter was tried before the court, which awarded $47,488 in damages to SVP for its loss of net profits. SVP appeals, contending: (1) the courts methodology used in awarding damages was inconsistent with and contrary to law; and (2) the court erred in excluding Mr. and Mrs. Robinson as additional judgment debtors.

Defendant and appellant Mohanad Hussein appeals after he pleaded guilty to assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)). He contends that his trial counsel rendered constitutionally ineffective representation by failing to advise him more specifically of the immigration consequences of his plea, and that the trial court erred in denying his motion to withdraw his guilty plea. Court find no error and Court affirm.

This is an appeal by E.E., the maternal grandmother of J.R., from the trial courts order terminating her Probate Code guardianship of J.R. The trial court terminated the guardianship after it denied a Welfare and Institutions Code section 387[1]petition in which the San Bernardino County Department of Childrens Services (hereafter DCS) sought to remove J.R. from E.E.s custody. E.E. contends in this appeal that when the trial court denied the section 387 petition, it was required to return J.R. to her custody, and DCS should then have been precluded from seeking to terminate her Probate Code guardianship of J.R. Otherwise, E.E. contends, DCS could accomplish through the Probate Code that which it could not accomplish under the Welfare and Institutions Code. Court do not share E.E.s view, for reasons we explain below, and therefore Court affirm.

Pursuant to a plea agreement, defendant pled guilty to possession of methamphetamine for sale (Health & Saf. Code, 11378) (count 1) and transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) (count 2). In return, the court suspended the proceedings for three years and placed defendant on formal probation on various terms and conditions. Defendants sole contention on appeal is that the trial court erred in denying his suppression motion. Court find no error and affirm the judgment.

S.G. (father) and H.G. (mother) appeal from the juvenile courts finding that minors A.G. (born in 1993) and N.G. (born in 1998) were adoptable under Welfare and Institutions Code[1]section 366.26. Counsel for the Riverside County Department of Public Social Services (Department) and for minors have jointly stipulated that the juvenile courts orders should be reversed because of changed circumstances. Court accept the stipulation.

M.R. (hereafter mother) appeals from the trial courts order under Welfare and Institutions Code section 366.26 terminating her parental rights to her son, J.R.[1] Mother asserts only one claim in this appealthat J.R.s first name was misspelled on some of the notices sent pursuant to the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; hereafter ICWA), and as a result the trial courts finding that ICWA does not apply in this case is not supported by substantial evidence. There are numerous defects in mothers claim, not the least of which is that she did not timely challenge the ICWA finding, and therefore has not preserved the issue for review on appeal. As a result, Court affirm the order terminating mothers parental rights.

A.W. appeals an order terminating her parental rights to her daughters, D.M. and T.G., and ordering the children placed for adoption. She contends that termination of her parental rights was foreclosed by operation of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), the so called beneficial parental relationship exception, because the amount and quality of visitation she was afforded was inappropriately limited.
To the extent that A.W.s contentions were previously determined in prior proceedings in this court, they are governed by law of the case. As to any issues not previously addressed in appellate proceedings, review is forfeited by A.W.s failure to raise them in the section 366.26 hearing. Consequently, Court affirm the judgment.