CA Unpub Decisions

Nancy Y. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her two young daughters, A.H. and C.H. She contends the court should have applied the parent/child relationship exception to termination ( 366.26, subd. (c)(1)(A)) based on evidence of the childrens visits with her. On review, Court affirm.

Rafael Gonzalez filed a notice of appeal with this court following the judgment of conviction and an order sentencing him to state prison for 19 years for carjacking (Pen. Code, 215) and personal use of a firearm (Pen. Code, 12022.53, subdivision (b)). Court appointed counsel to represent Gonzalez on appeal. Counsel filed a brief which set forth, in considerable detail, the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on appellants behalf. Appellant was given 30 days to file written argument in appellants own behalf. That period passed, and we received no communication from appellant. Court examined the record ourselves to see if Court could find any arguable issue and found no arguable error in the determination of Gonzalezs guilt. The facts of the case were complex and sorting them out was doubtless difficult, but the legal issues in the case were properly resolved and we found ourselves in agreement with appellate counsel that there are no appellate issues with a reasonable prospect of success with respect to Gonzalezs guilt.

William J. Davis (Davis) and Davis & Company (the Company) filed two motions for attorney fees, claiming they were entitled to fees as prevailing parties under certain contracts, and based on the rationale of Flannery v. Prentice (2001) 26 Cal.4th 572. The court denied their motions. Davis and the Company appeal, contending that the court erred on several grounds. Court affirm.

A jury convicted Mannie Thomas III of three counts of attempted murder (counts 1-3), three counts of assault with a semiautomatic firearm (counts 4-6), and one count of shooting from a motor vehicle (count 7). The jury also found true allegations Thomas personally discharged a firearm causing great bodily injury (counts 1-3, 7) personally discharged a firearm (counts 1-3, 7), personally caused great bodily injury (counts 1-7), and personally used a firearm (counts 4-6). The court sentenced Thomas to an indeterminate term of life with the possibility of parole, plus a consecutive term of 25 years to life.
Thomas contends the jury engaged in prejudicial misconduct, and his attorney rendered ineffective assistance of counsel by failing to move for a mistrial on this ground. He argues the judgment must be reversed as to counts 4, 5, and 6 because assault with a semiautomatic firearm is a lesser included offense of attempted murder (counts 1-3), and count 4 must be reversed because assault with a semiautomatic firearm is also a lesser included offense of shooting from a motor vehicle (count 7). Court conclude Thomas contentions are meritless and affirm the judgment.

A jury found defendant Anthony Maurice Elston guilty of several crimes, including assault with a firearm (Pen. Code, 245, subd. (a)(2); all further statutory references are to the Penal Code) and domestic battery with corporal injury ( 273.5). It also found he personally used a firearm in committing some of the offenses. Subsequently, the court found defendant had suffered a prior serious felony conviction. ( 667, subds. (a)(1), (d) & (e)(1); 1170.12, subds. (b) & (c)(1).) Based on the verdicts and findings, the court sentenced him to a 15-year prison term. Defendant now seeks reversal of his entire conviction, claiming the trial court violated his statutory speedy trial right by granting, over his personal objection, defense counsels request to continue trial beyond 60 days after the arraignment ( 1382, subd. (a)(2)). He also argues his conviction on count 2 for violating section 273.5 should be reversed because the trial court allowed the prosecution to amend this count during trial and because there was insufficient evidence of cohabitation. Finding no error, Court affirm the judgment.

The Orange County Department of Child Support Services (DCSS) appeals from an order of the Orange County Superior Court which found a child support provision in a California judgment of dissolution had been nullified by an order of the Sedgwick County District Court in Kansas. Court reverse.

Defendant Michael Camarena (Michael) challenges his conviction for possession of heroin (Pen. Code, 11350, subd. (a)). His sole contention on appeal is the trial court erroneously excluded two hearsay statements made by his father, David Camarena (David). Michael contends Davids hearsay statements were admissible under Evidence Code section 1230 as declarations against penal interest. Court conclude the court erroneously excluded Davids statements, but the error was harmless. Accordingly, Court affirm.

This appeal stems from a summary judgment entered in favor of Autozone West, Inc. Autozone successfully asserted below that it could not be held liable for the damages caused by its employees physical assault of a customer at an Autozone store after the customer had spoken to him in an arguably insulting manner. According to Autozone, the employees conduct was outside the scope of his employment as a matter of law, because it was not fairly attributable to work-related events or conditions. Court disagree. In our view, the evidence in this case supports the reasonable inference that the altercation was attributable to work related events; hence the trial courts decision to dispose of the case by summary judgment was improper.

Steven Liem appeals from the imposition of a restraining order against him pursuant to Family Code section 6203.[1] He contends the court erred in concluding that his act of grabbing [his] spouses buttocks, over her clothing, in an unwanted manner constituted a sexual assault within the meaning of subdivision (b) of the statute. According to Steven,[2] the term sexual assault must be interpreted in a manner consistent with criminal assaults, and Penal Code section 240 requires a greater degree of violence than occurred in this case. We disagree, and find no error in the courts interpretation of the statute.
In any event, as respondent Michele Liem points out, the court did not base its conclusion that Steven was guilty of abuse solely on the determination he had committed a sexual assault. The court also expressly found he had committed other violent acts, including the destruction of household furniture, and cited a distinct provision of section 6203 in support of its conclusion. Because Steven failed to challenge the courts alternative justification, Court must affirm the order on that basis in any case. And Court do.

A modification decision.

Scott C. appeals from an order terminating his parental rights pursuant to Welfare and Institutions Code section 366.26. He argues the juvenile court should have applied the benefit exception. ( 366.26, subd. (c)(1)(B)(i).) Court disagree and affirm.

Defendant Jayson Alden Townsend filed a notice of appeal from a judgment of conviction after a guilty plea. We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende(1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested that we consider a single issue. Defendant was given 30 days to file written argument in his own behalf; that time expired without defendant doing so.
We have examined the entire record and counsels Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) Court therefore affirm.

M. (mother) and Salvador A. (father), parents of Angelica A., appeal from the juvenile courts termination of their parental rights after a Welfare and Institutions Code section 366.26 permanency hearing (the .26 hearing). Mother contends there was insufficient evidence to support the courts finding that Angelica was likely to be adopted within a reasonable time. Father contends the courts denial of his request to continue the .26 hearing was an abuse of discretion. Mother and father join each others arguments. Court affirm.

In this appeal, an attorney complains that he has been inadequately compensated for extraordinary services rendered to the personal representative of a probate estate. The will of Patricia Louise Ott (decedent) was admitted to probate in November 1994. This is the fifth appeal this court has considered arising out of this estate, resulting in three prior unpublished opinions.
In September 2005, James Simoni (attorney), attorney for Betty Tucker, personal representative of decedents estate, filed a petition for compensation of extraordinary services, seeking fees of $151,854.20[2] in addition to the $11,887.04 he calculated is due for the statutory ordinary services. (Prob. Code, 10810.) This petition was filed prior to either a final accounting or a petition for distribution of the estate. A preliminary accounting in December 2003 valued the estate at $200,208.81. On appeal, attorney asserts that the probate court abused its discretion in awarding him only $29,175.25 for extraordinary fees. For the reasons stated below, Court affirm the award.