CA Unpub Decisions

A.C., a two-year-old child, and her mother R.F. have filed writ petitions seeking review of a juvenile court order terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26.[1] ( 366.26, subd. (l); Cal. Rules of Court, rules 8.450-8.452.)[2] Both mother and child seek either return of the child to mothers custody or, in the alternative, the continuation of services, contending that there is insufficient evidence to support the finding that reasonable services were provided or offered. They also contend that the Department of Family and Childrens Services (the Department) failed to establish that return of A.C. to her mother would create a substantial risk of detriment to her safety, protection, or physical or emotional wellbeing. They further contend that the juvenile court abused its discretion in reducing mothers visits with the child. Lastly, mother separately contends that the Department failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Although Court deny the writ petitions for the reasons stated below, we observe that mother may file a section 388 petition setting forth any change of circumstances or new evidence that may support her request for additional reunification services, including but not limited to a request for a second psychological evaluation, prior to the section 366.26 hearing which is currently set for December 22, 2008.

This product liability appeal follows a defense verdict after a nine-week jury trial in which eight minors, by and through their guardians ad litem, claimed that the quick-release mechanism on their mountain bicycles was defective and caused the front wheels to detach. Appellants brought suit for strict liability and negligence against Wal Mart Stores, Inc. (Wal-Mart), Dynacraft Industries, Inc. (Dynacraft), and Carl Warren & Co. (Carl Warren), and further claimed that respondents intentionally misrepresented and conspired to conceal prior similar accidents.
Appellants contend the trial court committed reversible error by (1) excluding a liability witness; (2) excluding evidence that respondents violated the Consumer Product Safety Act (CPSA); (3) failing to sufficiently abate or cure misconduct by Wal-Marts counsel; and (4) admonishing the jury to disregard the accidental breaking of a quick-release cam lever on a bicycle during deliberations. Court find none of the arguments has merit, and thus affirm the judgment.

Respondents Craig Stephen Murphy and Robin Murphy (the Murphys) hired appellant Peter Greenwood (Greenwood), a civil engineer and architect, to prepare design plans for residential properties in Larkspur and Mill Valley. After a bench trial, the trial court entered judgment in favor of the Murphys on both the breach of contract complaint brought by Greenwood and the Murphys claims, brought via cross-complaint, for breach of contract and professional negligence. The judgment awarded the Murphys $310,037 in damages. Greenwood appeals.
With respect to both projects, Greenwood challenges the sufficiency of the evidence supporting the trial courts findings underlying its conclusions of breach of contract and negligence. Greenwood also asserts that the trial court erred in determining that a limitation of liability clause contained in the Mill Valley contract was unenforceable. In addition, Greenwood maintains that the amounts awarded the Murphys as damages in connection with both properties are unsupported by substantial evidence. Last, Greenwood argues that the trial court erred in concluding that he was to take nothing on his own complaint for breach of contract. Court reverse the trial courts judgment with respect to Greenwoods complaint and its award of repair cost damages in connection with the Larkspur project, but otherwise affirm the judgment.

Defendant Paul James Smiraglia appeals from his conviction below for first degree murder on several grounds. Court affirm the judgment.

Appellant P.A., the mother of minors A.A. and N.B., appeals from an order of the juvenile court terminating her parental rights as to her two children and freeing them for adoption. She contends that the San Mateo County Human Services Agency (Agency) failed to provide adequate visitation in accordance with the courts order, which deprived her of the ability to demonstrate that she had a continuing beneficial relationship with the children within the meaning of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)[1] such that her parental rights should not have been terminated. Court conclude P.A.s contentions are without merit, and affirm accordingly.

Claude Kaaiakamanu (appellant) appeals from the judgment entered in a court trial of assault by means of force likely to produce great bodily injury and with a deadly weapon (Pen. Code, 245, subd. (a)(1); count 1)[1]and inflicting unjustifiable physical pain on a person over the age of 70 ( 368, subd. (b)(1); count 2). The trial court found that as to counts 1 and 2, appellant had personally inflicted great bodily injury on a person he reasonably should have known was 70 years of age or older. ( 12022.7, subd. (c); 368, subds. (b)(1) & (2)(B).) As to count 1, it further found that appellant had committed the offense on a person 65 years of age or older ( 667.9, subd. (a)) and that as to count 2, appellant had personally used a deadly or dangerous weapon ( 12022, subd. (b)(1)). The trial court sentenced appellant to an aggregate term of eight years in state prison. The People concede that appellants initial contention has merit, and we agree. The section 667.9 true finding will be stricken, and the term imposed for the enhancement vacated. However, the evidence is sufficient to support the finding in count 2 of the personal use of a deadly and dangerous weapon. Court affirm the judgment, as modified.

Appellant Luis Maldonado was convicted of second degree robbery (count 1) and possession of a firearm by a felon (count 2), with enhancements for personal use of a firearm and one prior prison term. He was sentenced to a total of 16 years in state prison. His sentence includes the upper term of five years on count 1 and a two-year concurrent sentence on count 2. He contends: (1) The trial court erred when it refused to give a unanimity instruction on count 2. (2) Imposition of the upper term on count 1 violated his Sixth Amendment right of the United States Constitution to trial by jury. Court find no prejudicial error and affirm.

Sophia Lorraine Daire, also known as Candy Mitchell, Sophia Mitchell and Sophia Daria, appeals from a judgment entered upon her conviction by jury of first degree burglary (Pen. Code, 459).[1] Appellant admitted the special allegations that she had suffered three prior felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (a)(1) and (b) through (i) and one prior prison term within the meaning of section 667.5, subdivision (b). After denying appellants Romero[2]motion seeking to dismiss two of her strikes, the trial court sentenced her to a term of 25 years to life on her burglary conviction, plus three consecutive five-year enhancements under section 667, subdivision (a). Appellant contends that (1) there was insufficient evidence to sustain her conviction, thereby violating her rights to due process and a fair trial, (2) instructing the jury with an unmodified version of CALCRIM No. 376 violated her state and federal rights to proof beyond a reasonable doubt and due process, and (3) the trial court abused its discretion by refusing to strike appellants prior felony strikes, resulting in punishment that was cruel and/or unusual under the federal and state Constitutions. Court affirm.

Appellant Christopher Garrett was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code[1]section 187 and two counts of premeditated attempted murder in violation of sections 187 and 664. The jury found true the allegations that appellant personally and intentionally used and discharged a firearm causing great bodily injury or death in the commission of the murder and one of the attempted murders within the meaning of section 12022.53, subdivisions (b), (c), and (d) and personally and intentionally used and discharged a firearm in the commission of the second attempted murder within the meaning of section 12022.53, subdivisions (b)
Appellant appeals from the judgment of conviction, making numerous claims of error. Court order two additional $20 security fees imposed pursuant to section 1465.8, but affirm the judgment of conviction in all other respects.

Gregory Burden, also known as Vernon Burden, was found guilty of possession of cocaine base for the purpose of sale (Health & Saf. Code, 11351.5). He admitted an enhancement for a prior prison term. He was sentenced to a total of five years in prison. He appealed. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). He was notified that he could file his own brief and has not done so. From our review of the record, we are satisfied that appellants counsel on appeal has fully complied with his responsibilities and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d at p. 441; People v.Kelly (2006) 40 Cal.4th 106, 123-124.)

C.J. (Mother) appeals from a dispositional order placing her daughter, A.R. (Child), born in February 2007, with Childs presumed father (Father), instead of with the maternal grandparents and half sister. We affirm the judgment because Mother fails to show that the juvenile court erred in placing Child with Father under Welfare and Institutions Code section 361, subdivision (c)(1) or section 361.2, subdivision (a).

Plaintiff and appellant Ashifa Kassam appeals from an order of dismissal following the sustaining of a demurrer without leave to amend her first amended complaint against defendants and respondents North Tern, LLC, Mary Thorndale, and Veronica St. Clair. Court conclude that Kassam has provided this court with no legal basis for reversal, and therefore affirm.

Rufino Rivero appeals from the judgment entered following his plea of guilty to assault with a deadly weapon, followed by a court trial in which he was found to have sustained a New Jersey prior conviction (attempted murder), which qualified as a serious felony under Penal Code section 667, subdivision (a)(1), and sections 667, subdivisions (b)(i), and 1170.12 (the Three Strikes law). Defendant contends that the prosecution failed to prove that the New Jersey attempted murder was a serious felony under California law. Court agree and accordingly reverse the finding of defendants prior conviction. In all other respects, Court affirm.

The juvenile court abused its discretion in providing grandmother reunification services. Accordingly, the petition is granted.