CA Unpub Decisions

The mother contends a lack of substantial evidence to support the juvenile courts finding the minor is adoptable. Court affirm.

Defendant Jesse Talamantez was convicted after jury trial of inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)),[1] misdemeanor disobeying a domestic relations court order ( 273.6, subd. (a)), misdemeanor obstructing a peace officer ( 148, subd. (a)(1)), and 75 counts of misdemeanor criminal contempt for disobeying a protective order ( 166, subd. (c)(1)). He admitted having served a prior prison term. ( 667.5, subd. (b).) The trial court sentenced him to five years in state prison.
Defendant contends on appeal that the trial court abused its discretion by denying his motion for mistrial, that the prosecutor committed prejudicial misconduct, and that the courts imposition of an upper term sentence violated his constitutional right to a jury trial. Court disagree with all of defendants contentions and, therefore, affirm the judgment.

A modification decision.

Tyrone T. Hill (Hill) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of possessing cocaine base for sale (Health & Saf. Code, 11351.5). He contends reversal is required because: (1) the court denied his motion to suppress evidence; (2) the prosecutor committed prejudicial misconduct during voir dire, cross-examination of Hill, and closing argument; (3) the court admitted into evidence Hills 1997 conviction and 2004 arrest; (4) the court refused to give jury instructions he requested; and (5) the court imposed and then stayed sentence on a prior conviction enhancement, rather than striking it. Court modify the judgment to make it clear that the prior conviction enhancement allegation is stricken. As so modified, the judgment will be affirmed.

In this first of two companion cases, mother Iris P. and Patrick P.the stepfather of minor D.W. and the father of minors K.P. and J.P.each challenge the juvenile courts findings of jurisdiction over the minors and its disposition order refusing to return the children to their custody. (See Welf. & Inst. Code,[1] 300, subds. (b), (d), (j).) In their appeals, Iris and Patrick challenge the jurisdiction findings on various grounds, including violations of due process. As we find that these findings were made in a manner that was inconsistent with due process rights, Court reverse the subsequent disposition order.

In this second of two companion cases,[1]mother Iris P. and Patrick P.the stepfather of minor D.W. and the father of minors K.P. and J.P.each challenge a juvenile court order placing the minors out of their home. Iris and Patrick each appeal from the order entered after the six-month review hearing in this juvenile dependency matter. In the companion appeal, we concluded that the underlying findings of jurisdiction over D.W., K.P. and J.P. were made in violation of Iris and Patricks due process rights. (In re D.W. (Apr. 9, 2008, A115960) [nonpub. opn.].)
The purpose of a review hearing is to review the status of a dependent child. (See Welf. & Inst. Code, 366.21.) A child is not a dependent of the juvenile court unless that court has first made proper jurisdictional findings. (See id., 300.) As the six-month order before us in this appeal is based on jurisdictional findings that Court overturned in the companion appeal, the order after the six-month review hearing must likewise be overturned.[

Plaintiff Matthew Orterry appeals from a judgment of dismissal entered in favor of defendants Mt. Diablo Unified School District (District), Don Paulsen (Paulsen) and Ronald Miller (Miller) after the trial court sustained their general demurrers without leave to amend. (Code Civ. Proc., 430.10, subd. (e).) He contends his first amended complaint adequately stated causes of action that arose when he was erroneously placed under a Welfare and Institutions Code section 5150[1] hold. Court affirm in part and reverse in part.

Following a jury trial, appellant Noelle Mary Donahue was convicted of embezzlement (Pen. Code, 503) and grand theft by larceny (Pen. Code,[1] 484, subd. (a), 487, subd. (a)). On appeal, she contends the trial court committed reversible error by failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) prior to sentencing. She also contends she was erroneously convicted of both embezzlement and grand theft by larceny because one is a necessarily included lesser offense of the other.
Court reverse the judgment and remand the matter with directions to the trial court to hold a Marsden hearing and to conduct further proceedings as authorized by law.

Defendant Jermaine Samuel Odom timely appeals from a June 22, 2007 judgment sentencing him to three years, eight months in state prison after he pleaded no contest in two cases to arson (Pen. Code, 451, subd. (d))[1] and to resisting an executive officer ( 69), respectively. In his request for a certificate of probable cause,[2] Odom contended that he pleaded no contest based on false information provided by his appointed trial counsel, and, among other things, that his trial counsel failed to find information and witnesses and withheld important information from him. Odoms appointed appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. Counsel has also advised Odom of his right to file a supplemental brief, which he has not done. We have reviewed the entire record and agree with counsels assessment. Court conclude that Odom knowingly, intelligently, and voluntarily entered into his plea agreement, that there is nothing in the record to support the contentions of attorney misconduct Odom made in his request for a certificate for probable cause, and that there is no issue warranting further briefing.

Mother, Crystal K., appeals from an order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. Her sole argument on appeal is that the order should be reversed and the matter remanded for compliance with the Indian Child Welfare Act (25 U.S.C. 1901, et seq.) (the ICWA) because the Humboldt County Department of Health and Human Services (the Department) failed to give proper notice under the ICWA. We conclude that any errors in notice were harmless and, accordingly, affirm the order.

A modification decision.

L. Flynt, Ltd.-8484, Inc. (Flynt) sued JAC Capital Fund, LLC (JAC) for breach of promissory note and attached a $1 million payment owed to JAC by Finova Capital Corporation (Finova). The trial court found that the $1 million belonged to third party claimants David Litt and Teresa Litt, cotrustees of the David and Teresa Litt Family Trust, and Litt Mortgage, Inc. doing business as Select Mortgage (collectively the Litts) because they held prior assignments from JAC of the right to receive that sum. Flynt appeals, arguing that the assignments were invalid on two grounds: the Litts did not receive them in good faith because they knew that Finovas consent was required but not obtained, and because the assignments were not supported by sufficient consideration. Court disagree and therefore affirm.

Cletus Curah (Curah) appeals the trial courts denial of his request for a petition for a writ of mandate following his discharge of employment by the California State Department of Transportation (Caltrans). On appeal, Curah contends: (1) the trial court did not properly apply the substantial evidence standard of review when it reviewed the evidence presented at the administrative hearing; (2) the administrative law judge denied him due process by disallowing the testimony of one of his witnesses; and (3) Curahs statements regarding race discrimination and mistreatment of him as an injured worker cannot be used against him (Cal. Const., art. I, 2). Court are not persuaded by Curahs arguments, and Court affirm.

A modification decision.