CA Unpub Decisions

Aaron M. (appellant), the father of Michael M. (the minor), appeals from the juvenile courts orders denying his petition for modification and terminating his parental rights. (Welf. & Inst. Code, 366.26, 388, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant makes four contentions of alleged prejudicial error, including a claim that Plumas County Department of Social Services (DSS) and the juvenile court violated the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. 1901 et seq.) Agreeing with the ICWA claim only, Court conditionally vacate the order terminating parental rights and remand for inquiry into possible Indian heritage and notice to the relevant tribal entities, if necessary.

Defendant Jaben Nathaniel Powers pled guilty to oral copulation with a child under 10 (Pen. Code, 288.7, subd. (b)) and admitted an allegation of substantial sexual conduct with a victim under the age of 14 (Pen. Code, 1203.066, subd. (a)(8)) in exchange for a stipulated term of 15 years to life in state prison and dismissal of all remaining charges. The parties stipulated to the facts contained in the police report as a factual basis for the plea. The police report, however, is not part of the record on appeal, and defendant waived a probation report. Court are therefore unable to set forth the facts underlying this prosecution. Defendant was sentenced according to his plea. The judgment is affirmed.

Keith B. (Father) and L.R. (Mother), the parents of one-year-old K.B. and three-year-old S.B. filed separate appeals from a juvenile court order terminating parental rights.[1] (Welf. & Inst. Code, 366.26, 395.)[2] They contend (1) the finding that S.B. was adoptable is not supported by substantial evidence, and (2) the court failed to ensure compliance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901 et seq.). Court remand for further ICWA proceedings.

A jury convicted Guillermo Chaidez of selling or furnishing more than 57 grams of methamphetamine. (Health & Saf. Code, 11379, subd. (a); Pen. Code, 1203.073, subd. (b)(2).) He admitted he had a prison prior conviction (Pen. Code, 667.5, subd. (b)) and was sentenced to a total term of four years. He contends the court should have granted a mistrial because a witness testified to inadmissible hearsay. The judgment is affirmed.

Daniel Anderson pled guilty to three counts of first degree robbery (Pen. Code,[1] 211, 212.5, subd. (a)), 10 counts of robbery ( 211), one count of attempted robbery ( 211, 664), one count of residential burglary ( 459, 460), one count of possession of a prohibited firearm ( 12021, subd. (e)), and one count of transporting more than 28.5 grams of marijuana (Health & Saf. Code, 11360, subd. (a)). In each of the robbery counts as well as the attempted robbery count, Anderson admitted he personally used a firearm within the meaning of section 12022.53, subdivision (b). There was no plea bargain. The court sentenced Anderson to 26 years and eight months in prison. Anderson did not obtain a certificate of probable cause. The judgment is affirmed.

Howard Armstrong was sentenced in 1988 to 17 years to life in prison after a jury found him guilty of second degree murder with a firearm. Armstrong, now 53 years old, has remained in prison for nearly 20 years. After several unsuccessful parole hearings, the Board of Prison Terms (BPT), now the Board of Parole Hearings, found him suitable for parole at his 2006 suitability hearing when it concluded Armstrong did not pose an unreasonable risk of danger to society if released. However, Governor Arnold Schwarzenegger reversed the BPT's decision, finding Armstrong posed an unreasonable risk of danger to society if released. Armstrong successfully petitioned the trial court for a writ of habeas corpus in the trial court. Ben Curry, acting warden of the Correctional Training Facility (Warden), appeals the trial court's order granting Armstrong's petition for a writ of habeas corpus, arguing Governor Schwarzenegger's decision was supported by some evidence and therefore must affirmed.

In superior court case No. SCD202123, Melvin Hills entered a negotiated guilty plea to selling cocaine (Health & Saf. Code, 11352, subd. (a)) and admitted he had a prior narcotics conviction within the meaning of Health & Safety Code section 11370.2, subdivision (a). Under the plea bargain, in which the prosecution agreed to dismiss the balance of the information, the parties stipulated to a prison term of six years.
The court denied Hills's requests for a certificate of probable cause in each of these cases. The judgment is affirmed.

Defendant Stolpman, Krissman, Elber & Silver, LLP (SKE&S) represented plaintiff Tona Kresich in a lawsuit against the San Bernardino County Superintendent of Schools (SBCSS). Kresich had sued SBCSS for claims arising from alleged sexual harassment, gender discrimination, and retaliation (the SBCSS action). SBCSS prevailed in that action. Kresich then sued SKE&S for malpractice. Kresich claimed that new claims arose against SBCSS after the underlying case was filed, and that SKE&S failed to assert these claims or advise her as to statutes of limitations. As a result, she was denied the opportunity to recover damages for such claims. During trial, the court granted SKE&Ss motion for judgment pursuant to section 631.8 of the Code of Civil Procedure. In essence, the court found that while SKE&S was negligent in failing to advise Kresich of the applicable statutes of limitations, Kresich would not have prevailed on the new claims if they had been litigated. Therefore, she suffered no harm. On appeal, Kresich argues that the court erred in entering judgment for SKE&S because she presented substantial evidence to support her new claims of discrimination. She also contends that the trial judge belatedly disclosed his friendship with a witness and made certain erroneous evidentiary rulings. Court reject these arguments and affirm the judgment.

This is a second appeal by defendant and appellant Gilberto Saavedra Badillo. In his first appeal, he claimed among other things, that the trial court erred by selecting count 3 (unlawful and willful failure to stop at the scene of an accident under Veh. Code, 20001, subd. (a)) as the principal term, instead of count 1 (driving under the influence of alcohol under Veh. Code, 23153, subd. (a)). We agreed and remanded the matter to the trial court for the purpose of (1) selecting count 1 as the principal count; (2) staying the sentence on count 2 (driving with 0.08 percent or more of alcohol in his blood under Veh. Code, 23153, subd. (b)) under Penal Code section 654; and (3) imposing the enhancement that defendant personally inflicted great bodily injury upon the victim (Pen. Code, 12022.7, subd. (a), 1192.7, subd. (c)(8)) only as to count 1, not all three counts.
Defendants sentence is reversed in part and the case is remanded to the trial court for resentencing. The trial court is ordered to have defendant present at the resentencing hearing and to stay the sentence on count 2 under Penal Code section 654. In all other respects, the judgment is affirmed.

A jury convicted defendant Julio Cesar Morales of conspiracy to commit petty theft, receiving stolen property, grand larceny, robbery, and carjacking (Pen. Code, 182, subd. (a)(1); count 1);[1]carjacking ( 215, subd. (a); count 2), second degree robbery ( 212.5, subd. (c); count 3), and assault with a deadly weapon ( 245, subd. (a)(1); count 4). With respect to all counts, the jury found true allegations that defendant committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang ( 186.22, subd. (b)(1)). With respect to counts 1 through 3, the jury found true allegations that defendant personally used a deadly weapon in the commission of the crimes ( 12022, subd. (b)(1)). Defendant was sentenced to prison for a total of 16 years to life. On appeal, defendant contends the evidence was insufficient to support the section 186.22, subdivision (b) gang enhancement associated with each count. Court reject defendants contention and affirm the judgment.

On February 9, 1994, appellant Rick Hazeltine sexually assaulted his live-in girlfriends three children, whose ages ranged from eight months to four years. Hazeltine was sentenced to 11 years in state prison. This was his third conviction involving the sexual abuse of minors. His first conviction at age 16 was based on his molestation of a six-year-old niece when he was 13 years old. His second conviction was at age 17, when he was convicted of molesting a 13-year-old girl. In addition to these convictions, Hazeltine had suffered a number of other offenses, including forgery, vehicle theft, petty theft, and contributing to the delinquency of a minor.
After hearing the evidence, the jury found that Hazeltine met the criteria for commitment as an SVP. On June 14, 2007, the court ordered Hazeltine committed as an SVP for an indefinite term pursuant to section 6604.

Applying Probate Code section 18200,[1]the superior court allowed a judgment creditor to reach assets that the debtor, as trustor, had placed in a revocable spendthrift trust for her own benefit. The debtors primary argument on appeal is that section 15306.5 should have limited the amount available to satisfy the debt.
We hold that the court was correct in applying section 18200 without any limitation under section 15306.5. We also reject the debtors remaining arguments. At the same time, Court reject the creditors claims that the appeal be dismissed and sanctions imposed. The judgment is affirmed.

Plaintiff John Benedict was granted a non-service-connected disability retirement and denied a service-connected disability retirement by defendant Kern County Employees Retirement Association (the Association). The superior court sustained Benedicts petition for a writ of mandate directing the Association to reverse its decision and grant him a service-connected disability retirement. On appeal, the Association claims that the court applied an incorrect standard of review: Instead of undertaking an independent determination of whether Benedicts disability was service connected based on all the evidence, the court sustained the petition after finding merely that the record contained substantial evidence in support of Benedicts position. Court agree with the Association, reverse the judgment, and remand the case to the trial court.

On June 27, 2006, at approximately 7:28 a.m., while inmates were being released at North Kern County Prison from their housing unit for the morning meal program, an inmate assaulted another inmate. The staff announced a Code #1 emergency and directed the inmates to assume a prone position. All inmates complied except Lopez, who sat at a table and began making verbal threats. Eventually, Lopez assumed a prone position on the ground but refused to place his hands behind his back. He also threatened to batter staff members. When a lieutenant called for a Code #2 emergency, Lopez got up and rushed toward Correctional Officer Mikkleson. Correctional officers were able to subdue Lopez after spraying him with pepper spray and hitting him in the lower abdomen with an impact round. Mikkleson sustained redness on his face from exposure to the pepper spray, a cut above his eye, and a cut on his arm. The judgment is affirmed.