CA Unpub Decisions

Ke.C. (father) appeals from the order made March 25, 2008, placing his children K.C., born in 1995, Ku.C., born in 1999, and Ko.C., born in 2001 (the children), in foster care rather than with him, the nonoffending parent. Father contends that the dependency court abused its discretion when it did not select the option set forth in Welfare and Institutions Code section 361.2, subdivision (b), to place custody of the minors with him, subject to the jurisdiction of the court, and direct that the Kern County Department of Human Services (Department) make a home visit within three months. Court disagree and affirm.

Plaintiffs Mitchell Joelson and Susan Joelson appeal from a judgment awarding $70,942.22 to the Law Offices of Federico C. Sayre (claimant). They contend: (1) The superior court lacked jurisdiction to determine the validity and amount of the attorney lien for claimants representation of plaintiffs in this action; (2) the evidence fails to support the amount of the fee award; and (3) the unclean hands doctrine precludes claimants recovery. Since plaintiffs stipulated to and fully participated in the hearing on the attorney lien and, on appeal, fail to either adequately summarize the evidence presented at that hearing or show in what manner it is legally insufficient to support the trial courts decision, Court affirm the judgment.

Minor G. F., a ward of the court, contends his statements to the police concerning his active criminal street gang participation should have been excluded because he was not warned pursuant to Mirandav. Arizona (1966) 384 U.S. 436 (Miranda). But any error in admitting the statements was harmless because ample admissible evidence showed his active gang participation. Court affirm.

At a bench trial, cross complainant Kyung Sik Oh obtained a $16,000 judgment against cross defendant Kenneth Kiemm. Cross complainant appeals, contending uncontradicted evidence showed his damages exceeded $1 million. But the court did not abuse its discretion by discrediting his conclusory testimony, which his documentary evidence did not support. Court affirm.

S.C. appeals from the termination of her parental rights to her son, A.B. The issue on appeal is whether the Orange County Social Services Agency (SSA) failed to give proper notice under the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA). The parties to the appeal have stipulated that the judgment of the juvenile court terminating parental rights should be reversed and the remittitur issued forthwith because the notices sent to the Bureau of Indian Affairs (BIA) and the tribal entities identified by the father were defective; thus, the juvenile courts finding that ICWA did not apply was not supported by substantial evidence. Court accept the stipulation and reverse.

Gabriel Reyes Luna appeals from a judgment of conviction of two counts of lewd or lascivious conduct (Pen. Code, 288, subd. (a))[1] against different victims following a jury trial. The trial court sentenced him to a total prison term of eight years. Court conclude that the challenged court rulings did not constitute an abuse of discretion or infringe upon defendant's constitutional right to present a defense. Court also reject defendant's ineffective assistance of counsel claims. Court have reviewed the psychiatric records examined in camera and affirm.

This action involves Hockwood Development, Inc. (Hockwood), a closely held corporation of three shareholders formed in 2001 to engage in land acquisition and development as well as construction management in the Sacramento area.
Wood and Rodgers have cross-appealed, claiming the trial court erred in failing to award them attorney fees pursuant to the common fund or substantial benefit doctrines that apply to shareholder derivative actions. Court shall affirm the judgment in its entirety.

Defendant and cross-complainant, Regina Blackhurst, appeals from the trial courts order granting the motion of plaintiff and cross-defendant, Anwyl, Scoffield & Stepp (hereafter AS&S or the law firm), to strike Blackhursts cross-complaint. (Code Civ. Proc., 425.16, subd. (b)(1) (the anti-SLAPP law).) Blackhurst contends that the motion to strike should have been denied because her cross-complaint against AS&S did not arise from any protected activity by the law firm and, in any event, she demonstrated a probability of success on the merits. Court disagree and shall affirm the order striking Blackhursts cross-complaint.

On November 15, 2007, at about 4:38 a.m., Jerry I. found defendant Christopher Lee Keehl in his living room, facing away from him. The homeowner retrieved his gun and detained defendant at gunpoint. Defendant was holding a bottle of Grand Marnier liqueur in one hand and a small pocketknife in the other. Jerrys wife Betty called law enforcement from a neighbors house and a Butte County sheriffs deputy was dispatched to the house. The deputy detained defendant and frisked him, finding a loaded BB gun in the waistband of his pants. The judgment is affirmed.

This appeal challenges a judgment by the superior court approving a class action settlement reached between a representative plaintiff, respondent William J. McGuigan, a retired city employee (Plaintiff), and the City of San Diego (defendant and respondent; "the City"), in one of several pension litigation cases about the soundness of the City's retirement system (the San Diego City Employees' Retirement System (SDCERS)). The appellants, (1) the San Diego Police Officers Association (SDPOA) and (2) approximately 1,600 individually named police department employees (the Aaron Objectors), were potential class members and objectors in the proceedings below (sometimes collectively referred to as Appellants). Appellants raise various objections to the judgment, including the adequacy of the underlying procedures used to certify the class for settlement purposes, and the monetary sufficiency of the settlement. The motions to dismiss, to strike, and for sanctions are denied; the judgment certifying the class and approving the settlement agreement is affirmed. Each party to bear its own costs.

A jury convicted Gary Johnson of oral copulation (Pen. Code, 288a (c)(2)),[1]and found true the special allegations the crime occurred during the course of a burglary ( 667.61, subds. (a), (c) & (d)) and the victim was 65 years of age or older ( 667.9, subd. (a)). In a bifurcated proceeding, the court found true the allegations that Johnson had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), a prior strike conviction within the meaning of section 667, subdivisions (b) through (i), and a prior prison term within the meaning of section 667.5, subdivision (b). Johnson was sentenced to a total term of 56 years to life. On appeal, Johnson asserts the trial court erred by not pursuing his Faretta[2]motion, and abused its discretion under Evidence Code section 352 by admitting evidence of his prior sexual assault convictions.

Defendant Eduardo Infante Baltierra was tried before a jury and convicted of multiple sexual offenses arising from the abuse of his two stepdaughters. On appeal, he contends (1) the trial court erroneously believed consecutive terms of 15 years to life were required for his convictions of aggravated sexual assault on a child (Pen. Code,[1] 269); (2) the trial court erred in sentencing him under the One Strike law ( 667.61) because he was not convicted of a qualifying offense against more than one victim; (3) the evidence was insufficient to support his conviction of attempted lewd acts on a child ( 664, 288, subd. (a)); (4) the trial court abused its discretion in denying his request at sentencing for a Mixtec language interpreter; and (5) the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence. We agree with defendants second contention and will remand for resentencing. In all other respects, Court affirm the judgment.

Appellant Ondray Demont Johnson was convicted, following a jury trial, of assault by force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1); count 1)[1]and attempting to dissuade a victim and witness of a crime from making a report of that victimization ( 136.1, subd. (b)(1); count 2). As to the assault count, the jury found appellant personally inflicted great bodily injury ( 12022.7, subd. (a)). However, the jury returned not true findings on the gang enhancements ( 186.22, subd. (b)(1)) attached to each count. The trial court sentenced appellant to prison for six years on count 1, plus eight months on count 2. On appeal, appellant contends (1) insufficient evidence supports his conviction of attempting to dissuade a victim and witness; and (2) Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 220, the reasonable doubt instruction, is constitutionally defective. Court reverse the judgment with respect to count 2 on the ground of insufficient evidence. In all other respects, the judgment is affirmed.

Appellant, Mayra Topete, pled no contest to transportation of methamphetamine (count 1/Health & Saf. Code, 11379, subd. (a)) and possession for sale of methamphetamine (count 2/Health & Saf. Code, 11378). On appeal, Topete contends: 1) the court violated the terms of her plea bargain; and 2) she was denied the effective assistance of counsel. Additionally, on July 15, 2008, this court sent a letter to the parties asking them to brief several issues that are discussed below. Although we will reject Topetes claims, Court remand the matter to the trial court for further proceedings.