CA Unpub Decisions

L.R. appeals orders terminating her parental rights to her children Xavier R., D.P. and T.Y., and an order denying her petition under Welfare and Institutions Code section 388.[1] She contends that the court abused its discretion by denying her section 388 petition. L.R. also asserts that the orders terminating her parental rights must be reversed because there was not substantial evidence to show that proper notice under the Indian Child Welfare Act (the ICWA) (25 U.S.C. 1902) had been provided; there was no substantial evidence to support the finding that the children were adoptable; and the court erred by not finding that the beneficial parent child relationship exception to termination of parental rights and adoption applies in this case. We affirm the order denying L.R.'s section 388 petition, but reverse the orders terminating her parental rights and remand, for the limited purpose of compliance with ICWA notice requirements.
The order denying the section 388 petition is affirmed.

Christopher T. appeals an order of the juvenile court made at a six-month review hearing involving his minor children Alexis T. and Brandon W. (together the minors). Christopher contends the court abused its discretion by ordering that his visits with the minors remain supervised. Court affirm the order.

J.W. III (J.W.) appeals an order denying him reunification services in the dependency case of his son, J.W. IV (the minor). He contends the court erred by not making a specific factual finding as to whether he was seeking custody of the minor and therefore erred by denying reunification services to him.

A jury convicted defendant of two counts of committing lewd and lascivious acts on a minor (Pen. Code, 288, subd. (a)). He was sentenced to prison for three years and appeals, claiming evidence was improperly admitted and his motion for mistrial was erroneously denied. Court reject his contentions and affirm.

Following a jury trial, defendant was convicted of one count of continuous sexual abuse of a minor, Girl 1 (count 1) (Pen. Code, 288.5, subd. (a)),[1]and one count of committing a lewd act upon a second minor, Girl 2 (count 2) ( 288, subd. (a)). Defendant was sentenced to 14 years in prison, consisting of 12 years for his continuous sexual abuse conviction plus two years for his lewd act conviction.
Defendant also petitions this court for a writ of habeas corpus, which we consider with this appeal. In his petition, defendant raises the same claims he raises on this appeal. He also provides declarations from himself and his appellate counsel, which are directed to his claim that his trial counsel was ineffective for discouraging him from testifying. The Attorney General has filed an informal response to the petition, and defendant has filed a response to the informal response. Based on the record on this appeal and the contents of the petition, we conclude that the petition fails to allege facts which, if true, would entitle defendant to relief. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) Court therefore affirm the judgment and deny the petition.

Appellant, Mark Calvin Kemblowski, pled no contest to four counts of being a felon in possession of a firearm (counts 1-4/Pen. Code, 12021, subd. (a)(1)), three counts of being a felon in possession of ammunition (counts 5-7/Pen. Code, 12316, subd. (b)) and one count of being a felon in possession of body armor (count 8/Pen. Code, 12370, subd. (a)). Kemblowski also admitted allegations that he had three prior convictions within the meaning of the three strikes law (Pen. Code, 667, subds. (b)-(1)).
On August 16, 2007, the court struck two of Kemblowskis prior convictions and sentenced him to an aggregate 10-year term, the upper term of six years on count 1, a consecutive 16-month term on counts 2, 3, and 4, and concurrent four-year terms on counts 5 through 8. On appeal, Kemblowski contends the court erred when it denied his motion to suppress. Court affirm.

On May 30, 2007, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, Derrick R., feloniously threatened an employee of a public school (Pen. Code, 71). The juvenile court sustained the petition at the conclusion of a contested jurisdictional hearing on August 8, 2007. At the conclusion of the disposition hearing on August 22, 2007, the court found the offense to be a misdemeanor and placed Derrick on probation for three years upon various terms and conditions.
On appeal, Derrick contends there was not substantial evidence of specific elements of section 71. Derrick further argues the juvenile court misinterpreted the element of intent in finding that he violated section 71.

Steven Saludes appeals from a judgment after a jury convicted him of possession of a firearm by a felon, street terrorism, and possession of controlled substance paraphernalia, and found true he was a felon in possession of a firearm for the benefit of a criminal street gang. He raises claims of insufficiency of the evidence, evidentiary error, and sentencing error. As Court explain below, we find merit in one of his sufficiency of the evidence contentions. Court affirm his convictions and reverse the finding he suffered a prior serious felony conviction. Court remand the matter for further proceedings consistent with this opinion.

Defendant Autumn Cruz was convicted of first degree murder (Pen. Code, 187, subd. (a); all further statutory references are to this code unless otherwise specified) and street terrorism ( 186.22, subd. (a)). The jury found she committed murder in the course of a robbery, while an active participant in a criminal street gang, and for the benefit of the gang ( 186.22, subd. (b)(1), 190.2, subds. (a)(17)(A), (a)(22), 211, 212.5). It also found Autumn intentionally and personally discharged a firearm causing death. She was sentenced to life without the possibility of parole for the murder, a consecutive 25 years to life for discharging the firearm, a consecutive 15 years to life for the murder by a gang member, and a consecutive 16 months for street terrorism. Alain joins in Autumns arguments and presents several of his own. He claims there was insufficient evidence of murder and street terrorism as well as the gang and firearm enhancements; his sentence was cruel and unusual punishment; and the CALCRIM instruction on reasonable doubt and the presumption of innocence was insufficient. In Autumns reply brief she joins in the arguments to the extent they apply to her. We affirm Alains judgment.
The judgment against appellant Alain Cruz is affirmed.

Appellant contends the court erred when it did not instruct the jury on its theory of comparative negligence. The record on appeal does not demonstrate the errors claimed. Court affirm.

Sean Gerson appeals the trial courts denial of his petition for writ of mandate pursuant to Code of Civil Procedure section 1094.5. Gerson is the sole director, chief executive officer, and chief financial officer of Vaccination Services, Inc. (VSI), a company operating out of his home. VSI sells various pet medications by phone, facsimile, and at the website http://fleastuff.com. Gerson, and occasionally his brother, are the only individuals involved in VSIs operWe affirm the courts denial of Gersons petition for writ of mandate. Gersons fundamental premise that the corporate form protects officers and other agents of a corporation from liability absent a finding of alter ego represents a fundamental misunderstanding of the law. There is substantial evidence in the record supporting Gersons liability for the regulatory violations at issue as a result of his actual conduct and the control he exercised over VSI. ations there are no employees.

Darlene M. (mother) appeals from orders under Welfare and Institutions Code sections 388 and 366.26, denying her petition requesting the return of her three boys and terminating her parental rights as to them. She claims the court abused its discretion in denying her section 388 petition without a hearing, substantial evidence did not support the courts finding the boys were adoptable and likely to be adopted, and the court failed to comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA). Court reject her contentions and affirm.

The trial court dismissed an action after granting a discovery motion for terminating sanctions. But the court refused to grant a motion for attorney fees under Corporations Code section 317. Court affirm.

Guadalupe Tovar was convicted of first degree murder, attempted premeditated murder and shooting at an inhabited dwelling. He contends the court prejudicially erred by admitting evidence of prior domestic violence he inflicted on the murder victim. Court disagree and affirm the judgment.