CA Unpub Decisions

Petitioner, the alleged father of D.G., contends that the juvenile courts failure to appoint counsel to represent him in the dependency proceedings requires setting aside the order to set a hearing pursuant to Welfare and Institutions Code section 366.26. Court reject this contention because petitioner never attained the status of a presumed father, and, accordingly, Court deny this petition for extraordinary writ relief.

This is an appeal by Ashley F. (mother) from a juvenile court order terminating her parental rights to her daughter, A.V., pursuant to section 366.26 of the Welfare and Institutions Code. Mothers principal grievance is that the courts adoptability finding is not supported by substantial evidence, requiring reversal. She also contends the court failed to comply with the statutory requirement that it consider A.V.s wishes before terminating parental rights. Finding no merit to either contention, Court affirm.

David I. (Father) appeals from a Welfare and Institutions Code section 366.26[1]hearing wherein his parental rights to N.I. (N.) were terminated. Fathers sole claim on appeal is that there was insufficient evidence that notice was given as required by the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA) and related federal and state law. Both Father and Nicole F. (Mother)[2]signed Parental Notification of Indian Status (JV-130)[3]forms attesting to the fact that they had no Indian ancestry. Other evidence in the record that N. may have Indian ancestry was insufficient to give rise to a duty of inquiry into his Indian heritage in light of the clear representations by Mother and Father that there was no Indian ancestry. As such, no ICWA notice was required.

Defendant Daniel Andrew Davis was convicted, following a jury trial, of assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1); count 1),[1]and misdemeanor false imprisonment, the lesser included offense of the charged offense of false imprisonment by violence ( 236; count 2). The jury also found true the allegation that defendant personally inflicted great bodily injury in the commission of count 1 ( 12022.7, subd. (a)). Defendant was acquitted of assault with intent to commit rape ( 220; count 3). In a separate trial, the trial court found true allegations that defendant suffered two prior serious convictions, which also qualified as strikes, and four prison priors ( 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)). The court sentenced defendant to a total indeterminate term of 25 years to life, and a total determinate term of 15 years. On appeal, defendant contends that (1) he was put on trial while mentally incompetent in violation of his constitutional rights, (2) the trial court erred in failing to grant his motion for a mistrial after Detective Shoemaker improperly referred to defendants prior rape convictions, and (3) the trial court, after it received a partial verdict and made a juror substitution, erred by not ordering a mistrial when it became evident the reconstituted jury disregarded the courts instructions to begin deliberations anew. Court affirm the judgment.

Appellant pled no contest to one felony count of corporal injury to a spouse (Pen. Code, 273.5, subd. (a))[1]and one misdemeanor count of resisting or obstructing a police officer ( 148, subd. (a)(1)). On March 15, 2006, the court suspended imposition of sentence and placed appellant on probation on specified terms and conditions. On March 8, 2007, the court revoked appellants probation and sentenced him to prison; among other fines and fees, it imposed a $20 court security fee, to be increased by $300 if not paid by March 10, 2007.
Appellant contends the court improperly imposed a restitution fine twice (on March 15, 2006, and on March 8, 2007), and added an unauthorized surcharge or penalty for late payment to the court security fee. Respondent disagrees that the restitution fine was imposed twice, but concedes that only one restitution fine is authorized. Respondent agrees that the $300 penalty for late payment of the court security fee is unauthorized. Court modify the judgment, and affirm it as so modified.

In this marital dissolution case, appellant Virgil Campbell (Husband) appeals from a judgment that resolved a number of property characterization issues in favor of respondent Julie Campbell (Wife). At the heart of the property dispute were four distinct parcels of real property, referred to according to street names as Buzzard Lagoon, Kilburn Street, Bothun Road and Lester Road. The trial court determined that the first three parcels were Wifes separate property and the fourth was community property without a right of reimbursement. Husbands appeal challenges several of the trial courts determinations. Court agree with Husbands contentions that the trial court erred in excluding a right to reimbursement concerning his contribution to the Lester Road property and in characterizing certain loan proceeds regarding a refinance of Buzzard Lagoon as Wifes separate property. Court reverse as to those findings only and remand to the trial court for further proceedings consistent herewith.

Defendant Barbara Wizbowski seeks reversal of the trial courts orders compelling arbitration and confirming an arbitration award to plaintiffs Eric and Teresa Kurtz. The parties dispute concerns Wizbowskis sale of a house to the Kurtzes and the Kurtzes subsequent discovery of improvements constructed without building permits, among other allegedly undisclosed problems. Court reject defendants arguments and affirm the judgment.

This is an appeal from an award of attorneys fees arising from the proceedings at issue in case No. F053118. The procedural background and relevant facts are described in our opinion in that appeal. Court incorporate them by reference.

Defendant Leandro Casas was convicted after a jury trial of drunk driving (Veh. Code, 23152, subds. (a), (b); all further statutory references are to this code unless otherwise stated). The trial court subsequently found true that defendant had previously been convicted of three incidents of drunk driving within the past seven years ( 23550, subd. (a)), had served a prior prison term (Pen. Code, 667.5, subd. (b)), three serious and violent felony convictions (Pen. Code, 1170.12, subds. (b), (c)(2)(A)) and one prior conviction for driving with a suspended license ( 14601.2, subd. (a)). Before trial, defendant pleaded guilty to driving with a suspended license. The court sentenced him to a term of five years. Court note that counsel for defendant does not gain points by his derogatory inferences concerning the conduct of the trial judge. In the absence of judicial misconduct, and there clearly is none here, such comments are entirely inappropriate.

This is an appeal from a judgment entered on a general verdict with questions answered in favor of Phu Dung Le and Andrew Trong against Trong Nguyen, Ngia Nguyen, James C. Nguyen, Tumy N. Nguyen, and UMC, LLC. Both compensatory and punitive damages were awarded. Appellants argue the verdict is not supported by the evidence and punitive damages were excessive. Court disagree and affirm.

Appellant was convicted of (1) driving under the influence of alcohol (DUI) and causing bodily injury, and (2) driving with a blood alcohol level of .08 percent or more and causing bodily injury. The jury also found he inflicted great bodily injury on the victim. Appellant contends, inter alia, the verdict forms for the lesser included offenses were prejudicially defective. Court agree and reverse the judgment.

Plaintiff Jessica Rutan appeals from a judgment in favor of defendant Scott Douglas Scoville in her action for personal injury and battery. Her sole claim is that the court erred in allowing police officer Gregory Brintle, who did not witness defendant allegedly striking plaintiff with his truck, to testify that there had been no collision and that she was therefore not injured. Court disagree and affirm. Court also deny defendants motion for sanctions for a frivolous appeal.

In March 1996, Fidel Ruben Alvarez was sentenced to three life terms, plus a consecutive three-year term, for the attempted premeditated murder of three people and assault with a firearm. The trial court ordered him to pay a $2,500 restitution fine, but failed to order direct restitution. On October 16, 2006, the trial court modified the sentence to include an order for $8,349.55 in direct restitution.
Alvarez contends the trial courts application of the current version of Penal Code[1] section 1202.4 and recently enacted section 1202.46 to crimes he committed in 1994 violates the ex post facto and due process provisions of our state and federal Constitutions. In addition, he asserts the trial court abused its discretion in failing to determine whether compelling and extraordinary reasons existed to justify ordering less than full restitution. The Attorney General concedes the courts order regarding the restitution fine must be reduced to $1,650.45. As modified, the judgment is affirmed.

A jury convicted defendant John Steadman Nilsen of first degree murder (Pen. Code, 187, subd. (a))[1] and second degree robbery ( 211, 212.5, subd. (c)), and found true the special circumstance allegation he committed the murder during the commission of a robbery ( 190.2, subd. (a)(17)(A)), and the enhancements he discharged a firearm causing great bodily injury or death ( 12022.53, subd. (d)), and personally used a firearm ( 12022.53, subd. (b)). In a bifurcated trial, the jury found true allegations defendant had suffered nine prior convictions. The court sentenced defendant to an indeterminate term of life without possibility of parole, tripled, and a determinate sentence of 80 years.
Defendant contends (1) insufficient evidence supports the jury verdict because eyewitness identifications of him were inconsistent and untrustworthy, and (2) the trial courts denial of his pretrial suppression motion was erroneous because the forcible taking of his D.N.A. sample in 1995 under former section 290.2[2] violated his Fourth Amendment right to be free from unreasonable searches and seizures. Court disagree and affirm the judgment.