CA Unpub Decisions

A modification decision.

Father appeals from the denial of his Welfare and Institutions Code section 388 petition requesting the return of his son Sean to mother and fathers custody.[1] Father contends that the juvenile court abused its discretion in denying the petition, and mother joins in fathers contentions. Court disagree, and affirm the order. Father seeks reversal of the order terminating his parental rights to Sean, and mother seeks reversal of the order terminating her parental rights to Sean and his siblings David and Noel, on the ground that the juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). Respondent concedes there was no compliance, and Court find none. Thus, Court reverse and remand for proper notice.

Crystal R. appeals an order of the juvenile court declaring that her daughter P. is adoptable and terminating her parental rights. (Welf. & Inst. Code, 366.26, subd. (c)(1).) Court reverse and remand for the limited determination whether the Indian Child Welfare Act ("ICWA") applies. (25 U.S.C. 1901 et seq.)

Graphic Communications Union District Council No. 2, Local 388M, AFL-CIO ("Union" or "petitioner") appeals from the trial court's order denying its motion to compel arbitration of a grievance against respondent Ennis Business Forms, Inc. The trial court concluded the dispute was not subject to arbitration because it arose under the prior collective bargaining agreement (CBA) and the current CBA expressly excludes such disputes from the scope of its arbitration clause. The Union contends the trial court erred because the arbitration clause can be read to apply to this dispute. Court affirm.

Lourdes C., the mother of minors Luis and Kimberly, appeals from the order denying her Welfare and Institutions Code section[1]388 petition as to both children and the order terminating her parental rights as to Kimberly. Appellant contends that the juvenile court erred in denying her section 388 petition as she established changed circumstances and that the court also erred in not finding applicable the section 366.26, subdivision (c)(1)(A) exception to the termination of parental rights. Court affirm.

John Marshall, as Warden of the California Men's Colony, Department of Corrections and Rehabilitation (Marshall) appeals a superior court order, which granted inmate Robert Joseph La Cava's petition for writ of habeas corpus and overturned the Board of Parole Hearings' (Board) decision which denied La Cava parole. Court conclude, among other things, that the trial court erred by granting the writ because there was evidence to support the Board's findings that La Cava was unsuitable for parole. Court reverse.

A jury found defendant Eldon Shawn Richey guilty of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a) count one), possession of methamphetamine (Health & Saf. Code, 11377, subd. (a) count two), possession of a falsified temporary operating permit (Veh. Code, 4463, subd. (a)(1) count three), and willfully resisting a peace officer (Pen. Code, 148, subd. (a)(1) count five). Defendant was found not guilty of possession of burglary tools (Pen. Code, 466 count four). On appeal, defendant contends he received ineffective assistance of counsel because counsel stipulated the methamphetamine was taken from defendants vehicle. He contends this stipulation essentially eviscerated [defendants] defense to counts one and two. Court disagree.

Plaintiff and cross-defendant Craig A. Wilkes seeks reversal of a judgment entered in favor of his elderly parents (we call the parties by their first names for convenience, intending no disrespect), defendants and cross-complainants John (J.T.) and Georgina Wilkes, after an unreported 12-day court trial. Based on Craigs conduct in this and other proceedings, the experienced trial judge called him the least credible witness ever encountered. Court affirm.

Plaintiff Heather Reimund appeals from a judgment following a grant of summary judgment in favor of defendants Gloria Guthrie and Anglo-Heritage Equine Training. Reimund alleged negligent maintenance of property and failure to warn for injuries she received when the horse she was keeping at defendants boarding facility pinned her against a fence rail in a three stall tie rack where horses were groomed, saddled and shoed/trimmed. The day before Reimunds injuries, the tie rack stalls had been damaged by another horse, and defendants had yet to repair them.
The dispositive issue on appeal is whether Reimunds claims were barred by the release of liability she signed when she placed her horses at defendants boarding facility. Concluding that they were, Court affirm the judgment.

Defendant pleaded no contest to petty theft with a prior (Pen. Code, 666)[1]and admitted serving a prior prison term ( 667.5, subd. (b)) in exchange for dismissal of the remaining charges and enhancements with a Harvey[2]waiver. The trial court sentenced defendant to an aggregate term of four years in state prison, consisting of the upper term of three years for the petty theft with a prior, plus one additional year for the prior prison term. In deciding to impose the upper term, the court cited the following circumstances in aggravation: [T]he crime was premeditated, . . . defendants priors are numerous, . . . defendant has served prior prison terms, and . . . defendants prior performance on probation or parole was unsatisfactory. The court found no factors in mitigation. The court imposed a $200 restitution fine ( 1202.4, subd. (b)), a $200 parole revocation fine ( 1202.45), and a $36 theft fine ( 1202.5); ordered defendant to pay victim restitution to Mervyns and/or the State Board of Control and reserved jurisdiction to set or modify the amount; ordered defendant pay a $20 court security fee ( 1465.8) and provide samples ( 296, subd. (a)(1)); and recommended that defendant attend drug and alcohol counseling while in prison ( 1203.096). The court determined that defendant was not entitled to any presentence custody credit. (People v. Bruner (1995) 9 Cal.4th 1178, 1180, 1191, 1195.)
Defendant appeals. He did not obtain a certificate of probable cause. ( 1237.5.)
The judgment is affirmed.

On March 7, 2007, defendant Elias Regaldo Murillo entered a building belonging to his former spouse with the intent to commit a theft. Inside the building, defendant attempted to kill his former spouse by personally stabbing her with a knife, inflicting great bodily injury.
Defendant entered a negotiated plea of no contest to attempted second degree murder (Pen. Code, 664, 187 count 1, as amended), and second degree burglary ( 459 count 8), and admitted, as to count 1, that he personally inflicted great bodily injury under domestic violence circumstances ( 12022.7, subd. (e)) in exchange for dismissal of the remaining counts (assault with a deadly weapon, infliction of serious bodily injury, criminal threats, first degree burglary, false imprisonment by violence, infliction of corporal injury) and related allegations (infliction of great bodily injury (as to counts 2 and 7), use of a deadly or dangerous weapon, prior conviction for domestic violence, three prior prison terms) and a stipulated state prison sentence of 10 years; that is, the midterm of seven years for attempted second degree murder plus a low term of three years for infliction of great bodily injury and a concurrent upper term of three years for second degree burglary. The court sentenced defendant accordingly. The judgment is affirmed.

A jury convicted Raul Rojo Garcia of second degree murder and found true enhancements that he intentionally and personally discharged a firearm that caused the victim great bodily injury and death. (Pen. Code[1], 187, subd. (a); 12022.53, subds. (b)-(d).) The trial court sentenced him to 40 years to life in prison as follows: 15 years to life for murder and 25 years to life for the section 12022.53, subd. (d) enhancement.
Garcia contends the verdict should be reversed because the trial court erroneously admitted into evidence: (1) testimony regarding his prior acts of domestic violence; (2) his booking photograph; (3) testimony from one of the victim's sister; and (4) testimony from a toxicologist. He further contends: the prosecutor committed several acts of misconduct; the cumulative effect of the evidentiary errors and prosecutorial misconduct resulted in an unfair trial; and insufficient evidence supported the true finding on the section 12022.53, subd. (d) enhancement that he intentionally fired a gun. Finally, Garcia requests that this court independently review the materials the trial considered during a Pitchess hearing. Court affirm.

Norman James Hubbs appeals from a judgment entered on April 13, 2006, recommitting him to Atascadero State Hospital for a two-year period (July 1, 2005 to July 1, 2007) for treatment and confinement as a sexually violent predator (SVP) under the provisions of the Sexually Violent Predators Act (Welf. & Inst. Code,[1] 6600 et seq.) (SVP Act) following a jury finding that he is an SVP. Hubbs contends (1) his trial counsel provided ineffective assistance of counsel by failing to retain expert witnesses to testify on his behalf or otherwise prepare for trial; (2) the court deprived him of his right to effective assistance of counsel by failing to rule on his pretrial motion to replace his court-appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden); (3) the court erroneously granted his request to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta); (4) the court erroneously permitted the prosecution's experts, Dr. Robert Owen and Dr. Dana Putnam, to testify to a "large quantity" of inadmissible hearsay;[2](5) the court erroneously excluded relevant evidence that would have permitted him to challenge the purportedly predatory nature of his prior convictions; and (6) the court erroneously instructed the jury with a modified version of CALJIC No. 2.50.01 that, in effect, told the jury they could use his prior sex offenses to demonstrate he has a propensity to commit such acts in the future, thereby eliminating the requirement that the prosecution prove its case beyond a reasonable doubt.
Court conclude Hubbs has met his burden of showing the judgment recommitting him to the Atascadero State Hospital must be reversed on the ground his trial counsel provided prejudicially ineffective assistance of counsel, and the matter must be remanded for a new trial.

Omar Souab sued Atlas Hotels, Inc. (Atlas), Miles Stillwell and Larry Gooding and others, complaining he had been the victim of harassment, discrimination and wrongful termination of employment based on his religion and national origin. He contends the trial court erred in denying discovery requests, granting summary adjudication of two causes of action, instructing the jury and denying a new trial on the ground of jury misconduct. Court affirm the order and the judgment.