CA Unpub Decisions

Eleven-year-old A.F. sought a domestic violence restraining order (DVRO) against her father, Jeffrey F. (Father), who holds joint legal custody with her mother, Andrea F. (Mother). The petition was filed by Mother on A.F.’s behalf. Mother sought appointment as A.F.’s guardian ad litem (GAL) in the domestic violence (DV) matter at the same time. The court granted the request for GAL appointment the same day. A.F. was represented by attorney Edward Castro in the domestic violence matter. Castro previously represented Mother in her marital dissolution from Father.
Father objected to Mother’s appointment as GAL and to Castro’s representation of A.F., contending Castro had a conflict of interest under Rule 1.7(a), (b) of the State Bar Rules of Professional Conduct, (Rule 1.7). The court removed Mother as GAL and granted Father’s request to disqualify Castro.

A jury convicted Gregory Derrick Boiser of second degree murder as a lesser included offense of first degree murder (Pen. Code, § 187; count 1) and attempted murder (§§ 664/187; count 2). It found true allegations that in the commission of count 1, Boiser personally and intentionally discharged a firearm that caused death (§ 12022.53, subd. (d)); in the commission of count 2, he personally and intentionally discharged a firearm that caused great bodily injury (§ 12022.53, subd. (d)); and in the commission of both counts, he personally and intentionally discharged and used a firearm (§ 12022.53, subds. (b), (c)). Boiser admitted he had a 2010 serious felony conviction
(§ 667, subd. (a)(1)) for assault with a deadly weapon, which also qualified as a strike (§§ 1170.12, subds. (a)-(d), 667.5, subds. (b)-(i)).
The court sentenced Boiser to a state prison term of 23 years plus 80 years to life.

Natividad DeLeon sustained injuries when the charter bus she was riding in took evasive action to avoid a head-on collision and she was thrown from her seat into the bus’s front stairwell. She brought suit against the company that owned the bus, Hot Doggers Tours, Inc. (HDT), and the owner of the truck that veered toward the bus. Before trial, HDT moved for summary judgment, which the court granted. On appeal, DeLeon argues the court erred by granting the motion because triable issues of fact remained as to whether HDT’s failure to instruct passengers to wear their seatbelt was negligent and, if so, whether that negligence contributed to DeLeon’s injuries. We agree with DeLeon that triable questions of fact remain and, thus, reverse the judgment.

In 2017, Israel Ontiveros was convicted of multiple felonies and sentenced to state prison in two criminal cases. In the first case, a jury convicted Ontiveros on two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), a nonviolent felony (id., § 667.5, subd. (c)). With enhancements and priors, the trial court sentenced him to an effective prison term of 19 years 8 months. In the second case, Ontiveros pleaded guilty to one count of robbery (id., § 211), a violent felony (id., § 667.5, subd. (c)(9)). With priors, the court sentenced him to a term of seven years in prison, to run consecutively to the sentence in the first case.
Two years later, Ontiveros requested early parole consideration under Proposition 57, the Public Safety and Rehabilitation Act of 2016.

In this gang-related case, an information jointly charged Samuel Gillespie and his codefendants Dominique Abdullah and Keshawn Price with certain felony offenses. Abdullah and Price pleaded guilty to shooting at an occupied vehicle (Pen. Code, § 246) and admitted allegations that they each had suffered a serious felony prior and a strike prior. A jury found Gillespie guilty of attempted murder (count 2, §§ 664 & 187, subd. (a)) and shooting at an occupied vehicle (count 3, § 246). The jury also found true the following allegations: the attempted murder was willful, deliberate, and premeditated within the meaning of section 189 (§ 664, subd. (a)); Gillespie was a principal in the commission of the attempted murder and at least one principal personally discharged a firearm during the commission of that offense (§ 12022.53, subds. (c) & (e)(2)); and Gillespie committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang

S.A., mother of the minor W.S., appeals from the juvenile court’s orders denying mother’s petition to change the juvenile court’s order terminating her reunification services and thereafter her parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 388; statutory section citations that follow are to this code.) Mother contends the juvenile court erred when it denied her section 388 petition without a hearing. We affirm the juvenile court’s orders.

Defendant Daniel James Altstatt appeals from a default judgment entered against him in plaintiff City of Sacramento’s (City) action for civil penalties and injunctive relief based on a public nuisance. The City asserts defendant’s appeal should be dismissed because he fails to comply with fundamental appellate requirements. Although defendant’s briefing is flawed, we will nevertheless address his arguments.
Defendant, representing himself, now contends (1) the civil penalties imposed were constitutionally excessive in violation of the Eighth Amendment, (2) reversal is necessary based on accusations defendant makes against the City and the trial court, (3) the trial court violated his due process rights, and (4) the trial court abused its discretion by not setting aside the default judgment. Concluding that defendant’s contentions lack merit, we will affirm the judgment.

T.S. (mother) appeals from juvenile court orders terminating parental rights to her children under Welfare and Institutions Code section 366.26. On appeal, mother’s sole contention is that the juvenile court erred by finding that the Los Angeles County Department of Children and Family Services (DCFS) adequately investigated the children’s possible Indian ancestry, as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related state statutes. DCFS concedes its inquiry was inadequate as to father but maintains it was adequate as to mother. We conditionally affirm the orders and remand for compliance with ICWA as to mother and father.

K.W. (Mother) appeals from an order terminating parental rights over her daughter K.M. (Minor). We consider whether the juvenile court erred in declining to rely on the parental benefit exception to forego terminating Mother’s parental rights. In addition, we consider whether the Los Angeles County Department of Children and Family Services (the Department) had a duty under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law to determine whether Minor’s alleged father (not presumed father) S.A. has any Indian heritage.

Defendant Yesenia Parraorozco (defendant) entered a negotiated plea and was placed on formal felony probation for three years in 2018. Just over two years later, in 2021, the trial court revoked and reinstated defendant’s probation—rejecting her argument that her probation had already terminated pursuant to recently enacted Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (AB 1950), which limits felony probation to a maximum term of two years. (Stats. 2020, ch. 328, § 2, eff. Jan. 1, 2021.) The Attorney General concedes defendant is entitled to retroactive application of AB 1950, but we are asked to decide whether the prosecution must be afforded an opportunity to withdraw from the plea agreement.

Appellant Los Angeles Community College District (LACCD) appeals from a judgment entered after the trial court granted summary judgment in favor of Morillo Construction, Inc. (Morillo), on Morillo’s claims against LACCD for contractual indemnity, breach of contract, and declaratory relief. We find that the indemnity provision in the contract at issue—a settlement agreement between the parties—does not encompass the qui tam lawsuit filed against Morillo by third party Newt Kellam under the California False Claims Act, Government Code section 12650 et seq. (CFCA). The trial court erred as a matter of law in interpreting the settlement agreement to create a duty on the part of LACCD to defend Morillo against the qui tam lawsuit.
We reverse the judgment and remand for entry of judgment in favor of LACCD on Morillo’s complaint.

Pamela M. (mother) appeals from orders of the juvenile court terminating parental rights to two of her four children. Mother contends the juvenile court erred by finding that the Los Angeles County Department of Children and Family Services (DCFS) adequately investigated the children’s possible Indian ancestry, as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related state statutes. We find no error, and thus we will affirm.

Appellant Anthony Brycsak pled no contest to committing a lewd act upon a child under the age of 14. He contends the court erred in imposing fines and fees without first considering his ability to pay. Alternatively, he contends the sex offender fine imposed under Penal Code section 290.3 should have been $300, not $400.
Appellant forfeited the former contention by failing to object to imposition of fines and fees at trial. However, we agree with appellant and respondent Attorney General that the sex offender fine exceeded the statutorily prescribed amount and must be reduced to $300. We modify the judgment to strike the $400 fine and reflect imposition of a $300 fine pursuant to section 290.3. The judgment is affirmed in all other respects.

C.R. appeals from the jurisdictional and dispositional orders entered after the juvenile court sustained allegations that he committed second degree vehicular burglary (Pen. Code, §§ 459, 460, subd. (b)), resisting arrest (§ 148, subd. (a)(1)), and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). It declared him a ward of the court and ordered him suitably placed in an open facility. C.R. contends: (1) there was insufficient evidence to prove that he resisted arrest, and (2) the matter must be remanded for the juvenile court to declare whether the burglary and assault he committed were felonies or misdemeanors. We remand for a declaration of whether C.R. committed felony- or misdemeanor-level burglary and assault, and otherwise affirm.