CA Unpub Decisions

Parents appeal from a juvenile courts order terminating their parental rights to their daughter and freeing her for adoption. They contend insufficient evidence supports the courts finding their special needs nine-year-old daughter was adoptable. They also contend the juvenile court erred in finding the Indian Child Welfare Act (25 U.S.C., 1901 et seq. (ICWA)) did not apply because the Department of Children and Family Services (DCFS) failed to provide the Indian tribes the requisite notice under the Act. Court affirm the courts finding of adoptability, but Court reverse the order terminating parental rights and remand with directions.

In this dependency case (Welf. & Inst. Code, 300 et seq.),[1]Yvette L., the mother of the minor child Angel N. (Mother and Angel, respectively), challenges the order of the juvenile court that denied her section 388 petition[2]whereby she requested that she be given six additional months of reunification services to facilitate a return of Angel to her custody. Mother contends the dependency court abused its discretion in denying her petition because the petition demonstrated both changed circumstances in her life, and that it would be in Angels best interests to extend the reunification period. The dependency courts denial of Mothers section 388 petition is reviewed under an abuse of discretion standard. Given the facts of this case, we find no abuse of discretion in the denial of Mothers petition, and the order of denial will be affirmed.

Terry Fitzgerald Alexander appeals from the judgment following a nolo contendre plea to one criminal threat count (Pen. Code, 422) and admission that he had suffered a prior strike conviction within the meaning of the Three Strikes law ( 667, subds. (b) (i); 1170.12, subds. (a) (d)). The trial court denied a subsequent motion to withdraw the plea and, pursuant to the terms of the negotiated plea, sentenced appellant to four years state prison with 398 days presentence custody credit. The judgment is affirmed.

Petitioner Andrea T. seeks extraordinary writ relief (Welf. & Inst. Code, 366.26, subd. (l);[1]Cal. Rules of Court, rule 8.452) from the juvenile courts order, made on April 2, 2008 at the conclusion of the statutory limit for reunification ( 366.22), setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for her 12-year-old daughter Alexandrea T. Court deny the petition, finding no merit in Andrea T.s contention the court erred in determining Alexandrea would be at risk if returned to Andrea T.s custody.

Following an unsuccessful speedy trial motion (CT 263-265), defendant Martin Robinson pled no contest to driving under the influence of alcohol (DUI) anddriving with a blood-alcohol level of .08 percent or more within 10 years of a prior felony violation of Vehicle Code section 23152 (Veh. Code, 23152, subds. (a) & (b), 23550.5, subd. (a)(1)--counts one and two) and admitted having a blood-alcohol concentration of .15 percent or above. (Veh. Code, 23578.) He also pled no contest to falsely personating another (Pen. Code, 529, subd. 3--count three) and driving on a suspended license (Veh. Code, 14601.1, subd. (a)--count four), and admitted that he had served three prior prison terms. ( 667.5, subd. (b).) Prior to defendants plea, the trial court agreed to sentence defendant to a two-year term in state prison and to issue a certificate of probable cause. The judgment is affirmed.

Mother, Desiree M., appeals from the findings at the Welfare and Institutions Code section 366.21, subdivision (e)[1]hearing, that reasonable reunification services had been provided to her and that returning her children to her care would create a substantial risk of detriment to them. Mother contends the evidence is insufficient to support the courts findings. This is mothers second appeal in this case. In the first appeal, she unsuccessfully challenged the juvenile courts order removing the children from the home at the dispositional hearing. (See In re Tyler H. (Apr. 24, 2008, C055017) [nonpub. opn.]; we take judicial notice (Evid. Code, 452, subd. (d)) of this courts records in mothers first appeal.) The third case was a writ taken from orders at the 12-month review hearing terminating reunification services and setting a section 366.26 hearing (Desiree M. v. The uperiorCourtofSacramentoCounty (May 9, 2008, C058123) [nonpub. opn.]). Court affirm.

A jury convicted defendant Mario Rodrigues of two counts of transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a); counts four [methamphetamine] and five [ecstasy]) and one count of each of the following misdemeanor offenses: driving under the influence of a drug (Veh. Code, 23152, subd. (a); count one), leaving the scene of an accident (Veh. Code, 20002, subd. (a); count two), being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a); count three) and resisting, obstructing or delaying an officer (Pen. Code, 148, subd. (a)(1); undesignated section references are to this code; count eight). In bifurcated proceedings, the trial court found defendants prior conviction for possession of cocaine base for sale to be true (Health & Saf. Code, 11351.5, 11370.2, subd. (c)).
The court sentenced defendant to state prison for an aggregate term of seven years, that is, the upper term of four years for count four (transportation of methamphetamine) plus three years for the prior drug conviction. The court also imposed concurrent six-month jail terms for each of the misdemeanor offenses.

Defendant Robert Allen Williams molested his daughter on several occasions when she was seven and eight years old. He rubbed her vagina with his foot on at least four occasions, put adult sex toys inside her vagina, and orally copulated her. He also put his fingers inside her vagina at a swim party. Defendant entered a straight up plea of guilty to all counts, six counts of a lewd and lascivious act upon and with a child under the age of 14 years (Pen. Code, 288, subd. (a)). The court denied probation and sentenced defendant to state prison for an aggregate term of eight years, that is the midterm of six years on count 6, a consecutive one third the midterm or two years on count 1, and concurrent six year terms for counts 2 through 5. The judgment is affirmed.

Dennis M. (appellant), the father of Cody S., Natalie M. and Jason M. (collectively, the minors), appeals from the order of the juvenile court terminating his reunification services. (Welf. & Inst. Code, 395; further undesignated statutory references are to this code.) Appellant claims the court erred by terminating his services and by ordering no contact between the minors and him. He also claims there was a failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) Concluding these claims are without merit, Court affirm.

A jury convicted defendant Lennard Arthur Fulgham of possession of a controlled substance (heroin) in a state prison. (Pen. Code, 4573.6.)[1] Defendant waived his right to jury trial on the allegation of a prior serious felony conviction and the trial court found it to be true.[2] The trial court sentenced defendant to six years in state prison, consisting of the middle term of three years doubled by defendants strike prior. The sentence was ordered to run consecutively to defendants existing prison sentence. On appeal, defendant claims the trial court erred in denying his motion to suppress ( 1538.5) because the contraband search conducted by prison officials was cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, rendering the search unreasonable under the Fourth Amendment. Defendant also contends a juror committed misconduct by text messaging throughout the trial and by sleeping, instead of listening to the testimony. Defendant claims the misconduct created a presumption of prejudice that was not rebutted, requiring reversal. Disagreeing with defendants claims, Court shall affirm the judgment.

Defendant pleaded no contest to driving with a
blood-alcohol level of more than 0.08 percent causing bodily injury (Veh. Code, 23153, subd. (b)), and admitted prior prison term and great bodily injury allegations. The court sentenced defendant to seven years in state prison, imposed various fines and fees, and awarded 27 days of credit (19 actual custody days, and eight conduct). Having failed to obtain a certificate of probable cause, defendant appeals. The judgment is affirmed.

In case No. CM027825 (the drug case), defendant George Ernest Rogers III pled no contest to possessing LSD and admitted serving a prior prison term. In case No. CM027981 (the drunk driving case), defendant pled no contest to driving with a blood alcohol content over .08 percent causing great bodily injury and to leaving the scene of an accident. He admitted two enhancements attached to each of these counts, one for committing the offenses while released from custody (the on-bail enhancement) and one for serving a prior prison term.
On appeal, defendant contends the court erred in: (1) imposing a stayed sentence on the second on-bail enhancement attached to his conviction for leaving the scene of an accident; (2) imposing a stayed sentence on the second prior prison term enhancement attached to his conviction for leaving the scene of an accident; and (3) imposing two restitution fines and two parole revocation fines. Court agree with defendants first two contentions only and modify the judgment accordingly.

Following his plea of no contest to one count of forgery and his admission of a prior prison term, defendant James Stephen Lamarche was sentenced to the low term of 16 months plus an additional year for the prison prior. Defendant now appeals that sentence. Defendant did not seek a certificate of probable cause. The judgment is affirmed.

Jason Robert Byrd appeals in propria persona the entry of a restraining order under Code of Civil Procedure section 527.6 restraining him from harassing Bonnie and James Loper. Byrd contends the court erred in granting the restraining order, claiming there is no substantial evidence to support James's allegations against him. Court conclude Byrd has failed to demonstrate prejudicial error. Accordingly, Court affirm.