CA Unpub Decisions

J.M. appeals following the dispositional hearing in the dependency case of her daughter, Charity M. J.M. contends the jurisdictional finding and the order removing Charity from her custody are unsupported by substantial evidence. Court affirm.

Devin P. appeals the findings and orders entered at the jurisdictional and dispositional hearing held pursuant to Welfare and Institutions Code sections 360, subdivision (d) and 361, subdivision (c). Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) Court therefore deny his requests to review the record for error and to address his Anders issues. (Anders v. California (1967) 386 U.S. 738.)

The police apprehended the two defendants, Denise Anne Barbee and Arminetta Elaine Wardlaw, outside a University Avenue liquor store in Riverside, in possession of 60 pieces of rock cocaine, packaged for sale. The defendants each pleaded guilty to one count of possessing cocaine base for sale. (Health & Saf. Code, 11351.5.) In addition, Barbee admitted to 10 previous drug convictions and six prison priors. Wardlaw admitted to three previous drug convictions and four prison priors.
The court denied defendants suppression motion.

Defendant Allen Lodge had $2,000 worth of heroin and a substantial amount of cash hidden in his bunk area at the California Rehabilitation Center (CRC). He was convicted both of possession of heroin for purposes of sale and possession of a controlled substance in a prison facility.
Court find no prejudicial error. Hence, Court affirm defendants conviction. However, because the trial court imposed an unauthorized sentence (see part IX, post), Court reverse as to the sentence only and remand the matter for resentencing in accordance with our directions.

This appeal involves a tragic automobile accident. On February 17, 2006, at 8:00 p.m., defendant Serhiy Melnyk entered an intersection driving at least 55 miles per hour, with no headlights on, and broadsided Kathy McGrews car, killing her instantly. Court find no prejudicial error and affirm the judgment.

Defendant Teresa Gregory (Gregory) appeals judgment entered in favor of plaintiff Patricia Maciel (Maciel). Maciel, the daughter of decedent, J.D. Webb (Webb), filed a petition, individually and as administrator of the Estate of J.D. Webb (Estate), under Probate Code section 850, subdivision (a)(2)(C). Maciel requested in the petition an order declaring the Estates ownership of various property and double damages against Gregory for wrongfully taking, concealing, and disposing of Estate property in bad faith. Court conclude there was sufficient evidence to support the trial courts decision that Gregory acted wrongfully and in bad faith. We reject Gregorys contentions that the trial court applied the wrong bad faith standard and that the court was required to consider the elements of conversion when deciding the petition. The judgment is affirmed.

A jury convicted defendant of one count of attempted premeditated murder (count 1Pen. Code, 664, 187); two counts of assault with a firearm (counts 2 & 3Pen. Code, 245, subd. (a)(2)); and two counts of false imprisonment (counts 4 & 5Pen. Code, 236). The jury further found that defendant personally discharged a firearm in his commission of count 1 and personally used a firearm in his commission of counts 2 through 5. (Pen. Code, 12022.53, subd. (d), 12022.5, subd. (a).) On appeal, defendant contends the court committed reversible error in admitting defendants girlfriends preliminary hearing testimony in violation of his right to confrontation and pursuant to the former testimony exception to the hearsay rule. (Evid. Code, 1291.) Court find no error. Furthermore, even were we to assume error, it was clearly harmless. The judgment is, therefore, affirmed.

Delores V. appeals from orders terminating her parental rights (Welf. & Inst. Code, 366.26) to her young daughter and son.[1] Appellant contends the court erred by denying her petition to regain custody at the permanency planning phase. She also joins in arguments made by the childrens fathers in their respective appeals, In re N.V. (F054277) and In re R.V. (F054279). The father in In re N.V. (F054277) challenged the denial of a petition he brought to regain custody of his daughter N.V. Court concluded the court did not abuse its discretion because N.V.s father did not satisfy his burden of proof. The father in In re R.V. (F054279) claimed he was denied timely notice of the proceedings regarding his son R.V. Court concluded the court failed to conduct a paternity inquiry of the mother but under the circumstances the error neither violated his due process rights nor was it prejudicial. On review, we will affirm.

Roberto P. appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26) to his 18-month-old daughter N.V.[1] He contends the court erred by rejecting his bid to regain custody or reopen reunification services at the permanency planning phase. He also joins in any arguments which may accrue to his benefit and are made by N.V.s mother and her siblings biological father in their respective appeals, In re N.V. et al. (F054261) and In re R.V. (F054279). The mother challenged the denial of a similar petition she brought to regain custody of her children. The other father claimed he was denied timely notice of the proceedings regarding his son R.V. Court affirmed in each case. In In re N.V. (F054277), we concluded the court did not abuse its discretion because the mother did not establish that a change of placement would be in the childrens best interests. Court concluded in In re R.V. (F054279) the court failed to conduct a paternity inquiry of the mother but under the circumstances the error neither violated the due process rights of R.V.s biological father nor was it prejudicial. On review, Court affirm.

Martin P. is the biological father of infant R.V. Appellant made his first appearance in the underlying dependency proceedings during the permanency planning phase. On appeal from a subsequent order terminating parental rights (Welf. & Inst. Code, 366.26), he complains the superior court failed to conduct any paternity inquiry of the infants mother, thereby preventing him (appellant) from receiving timely notice of the underlying dependency proceedings and obtaining services. He also joins in arguments made by R.V.s mother and his siblings father in their respective appeals, In re N.V. et al. (F054261) and In re N.V. (F054277). Those parents challenged the denial of their petitions ( 388) to regain custody.
On review, Court agree the court erred by failing to question the mother about the infants paternity. Court conclude, however, the error neither violated appellants due process rights nor prejudiced him. The record establishes the court afforded him rights as a biological father, including the means by which to elevate his paternity status to presumed father, a necessary status for securing reunification services. Appellant nonetheless did not seize the opportunity. In the other parents appeals, court concluded the court did not abuse its discretion because the parents failed to satisfy their burdens of proof.

Laurie S. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her son C.C.[1] She contends the court erred when it denied her request for a continuance of the termination proceedings in order to file a section 388 modification request. She also claims respondent Merced County Human Services Agency (agency) supplied insufficient family information to enable Indian tribes to investigate and resolve whether C.C. was an Indian child for purposes of the Indian Child Welfare Act (ICWA; 25 U.S.C. 1901 et seq.). On review, Court conditionally reverse the termination order for a limited remand related to ICWA compliance. Otherwise, we affirm.

Plaintiff Maria Del Rosario Ramos was hit by a car driven by defendant Linda Anne Shearer in a grocery store parking lot. Although Ramos had seen Shearer driving her car slowly in Ramoss direction, Ramos assumed Shearer would stop for her, and stepped into the path of the approaching car. Shearer did not see Ramos before they collided. Even if the trial court had abused its discretion by excluding Ramoss surgeons postoperative report stating that Ramos had a meniscus tear, any such error was not prejudicial. Ramoss surgeon testified she had a meniscus tear and Shearers expert testified the postoperative report stated Ramos had a meniscus tear. Furthermore, the record does not show Shearers counsel or any juror engaged in prejudicial misconduct.

A jury convicted defendant Anthony Salinas Orona of possession of a firearm by a felon, carrying a loaded firearm while a gang member, and street terrorism. It further found defendant had committed the firearm offenses for the benefit and direction of a criminal street gang. The trial court sentenced defendant to 15 years, 4 months in prison. Defendant appeals, contending his trial counsel was ineffective for not objecting to the gang experts testimony that gang members had identified defendant as their shot caller and that Penal Code section 654 (all further statutory references are to this code) precludes punishment for both possession of a firearm and street terrorism. Court disagree and affirm.

This case deals with payment of disability retirement to plaintiff Mary Porter by defendant Board of Retirement of the Orange County Employees Retirement System. The first time it was before us we determined that, under Government Code section 31724 (section 31724), the effective date of plaintiffs application for disability retirement was the day after the last day she was paid regular compensation. (Porter v. Board of Retirement of the Orange County Employees Retirement System (Dec. 23, 2005, G034319) [nonpub. opn.], p. 6; (Porter 1).) Court remanded the matter for the trial court to determine whether plaintiff had elected to begin retirement as of that date, and if so, whether she is required to reimburse for any payments she received for leave of absence or sick leave or both. (Id. at p. 7.). Court agree that the appeal is premature and dismiss it.