CA Unpub Decisions

Given the nature of the instant appeal, we briefly summarize the facts supporting the conviction. We will expand upon facts necessary for the resolution of each issue as we address them.
In 2020, a second amended information charged defendant with one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) (count 1) and three counts of lewd acts on a child under the age of 14 years (§ 288, subd. (a)) (counts 2, 3 & 4). The crimes were alleged to have occurred generally between 2005 and 2007 and were based on kissing, contact with J.E.’s vagina and J.E.’s contact with defendant’s penis.
Defendant, J.E.’s mother, their child Y.E., and J.E. lived together until 2018, although the parents divorced in 2014. Defendant held himself out to be J.E.’s father. When J.E. was in high school, she found out defendant was her stepfather.
In May of 2019, J.E. was about to graduate from college.

“In August 2020, the El Monte Police Department executed search warrants on father’s home and his female companion’s home after receiving information about father distributing child pornography. Father resided with the mother and his children. Father also had a female companion and sometimes spent the night at her home. While executing the warrant, the police recovered child pornography videos on father’s phone. These videos included 21 files depicting child pornography of young girls, ages two to five, which police located in a file folder in father’s phone. A detective concluded that father was looking for child pornography videos and purposefully saved them onto his phone based on the volume of videos and where the files were saved on father’s phone.
“A detective interviewed father after law enforcement executed a search warrant at the family home. Father conceded that he sent a child pornography video to his female companion.

“In August 2020, the El Monte Police Department executed search warrants on father’s home and his female companion’s home after receiving information about father distributing child pornography. Father resided with the mother and his children. Father also had a female companion and sometimes spent the night at her home. While executing the warrant, the police recovered child pornography videos on father’s phone. These videos included 21 files depicting child pornography of young girls, ages two to five, which police located in a file folder in father’s phone. A detective concluded that father was looking for child pornography videos and purposefully saved them onto his phone based on the volume of videos and where the files were saved on father’s phone.
“A detective interviewed father after law enforcement executed a search warrant at the family home. Father conceded that he sent a child pornography video to his female companion.

“In August 2020, the El Monte Police Department executed search warrants on father’s home and his female companion’s home after receiving information about father distributing child pornography. Father resided with the mother and his children. Father also had a female companion and sometimes spent the night at her home. While executing the warrant, the police recovered child pornography videos on father’s phone. These videos included 21 files depicting child pornography of young girls, ages two to five, which police located in a file folder in father’s phone. A detective concluded that father was looking for child pornography videos and purposefully saved them onto his phone based on the volume of videos and where the files were saved on father’s phone.
“A detective interviewed father after law enforcement executed a search warrant at the family home. Father conceded that he sent a child pornography video to his female companion.

“In August 2020, the El Monte Police Department executed search warrants on father’s home and his female companion’s home after receiving information about father distributing child pornography. Father resided with the mother and his children. Father also had a female companion and sometimes spent the night at her home. While executing the warrant, the police recovered child pornography videos on father’s phone. These videos included 21 files depicting child pornography of young girls, ages two to five, which police located in a file folder in father’s phone. A detective concluded that father was looking for child pornography videos and purposefully saved them onto his phone based on the volume of videos and where the files were saved on father’s phone.
“A detective interviewed father after law enforcement executed a search warrant at the family home. Father conceded that he sent a child pornography video to his female companion.

“When an officer reasonably suspects that an individual whose suspicious behavior he or she is investigating is armed and dangerous to the officer or others, he or she may perform a patsearch for weapons. (Terry v. Ohio [(1968)] 392 U.S. [1,] 24, 30; Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 320; People v. Dickey (1994) 21 Cal.App.4th 952, 955-956; People v. Garcia (2006) 145 Cal.App.4th 782, 786.) The sole justification for the search is the protection of the officer and others nearby, and the search must therefore be confined in scope to an intrusion reasonably designed to discover weapons. (Terry v. Ohio, supra, at p. 29.) A patsearch is a ‘serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.’ (Id. at p. 17, fn. omitted.) On the other hand, law enforcement officers have a legitimate need to protect themselves even where they may lack probable cause for an arres

The family consists of mother, M.C., father, their child Y. (born 2013), and mother’s three other children, A. (born 2004), S. (born 2005), and J. (born 2007). The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) on February 11, 2019, after A. told a school staff member that mother threatened to kill him and herself with a gun. A. stated he was afraid for his siblings in the home. The school staff member called the police, expressing concerns about sending A. home.
A DCFS children’s social worker (CSW) spoke with A. (then age 14) at the police station on February 11, 2019. A. reported that he was fed “if mother has enough money,” but that “sometimes there is no food.” A. stated that father (A.’s stepfather) smoked marijuana in the home every day.

Appellants’ request for juvenile court records arises from a dependency proceeding in which the Family and Children’s Services Division of the Santa Cruz County Human Services Department (the Department) placed the child with appellants as foster parents. The Department later decided to place the child with a different family. Appellants filed an application for de facto parent status to obtain the right to present evidence in the juvenile proceedings. Appellants also filed multiple grievances with the Department regarding the management of the child’s foster placement, proceeded to an administrative hearing with the Department, and filed a subsequent claim with Santa Cruz County. Appellants alleged that when Department employees decided to place the child with a different family, they violated the law, violated appellants’ rights under the United States and California Constitutions, and “violated the applicable ethics rules.”

Mother has two children, L.S. (age four) and Jasmine (age two) (together the girls), whose father, Marcus S., was no longer in a relationship with mother and was incarcerated when this case began.
Mother had a history of exposing the girls to a “hostile and dangerous environment of ongoing domestic violence between herself and her significant others since 2015.” Mother also had seven prior referrals to the department for general neglect, physical abuse, and emotional abuse. All but one were closed as inconclusive.
On August 12, 2019, Francisco D., mother’s boyfriend, struck mother in the girls’ presence, while mother was pregnant with his child. Francisco D. had a criminal history involving violent behavior throughout California, including domestic violence, and had a dependency case in Los Angeles County in which he failed to reunify with his daughter. Francisco D. was arrested on August 28, 2019, for a probation warrant and a contempt of court warrant.

In February 2021, the Riverside County Department of Public Social Services (DPSS) filed a dependency petition regarding mother’s three minor children, K.R. (born June 2005), C.R. (born November 2007), and G.G. (born April 2009). The children had been removed from mother’s care a few days earlier and placed with an uncle. DPSS alleged all three children came within section 300, subdivision (b)(1) (failure to protect), and that the children came within section 300, subdivision (c) (serious emotional damage). According to DPSS, all three children had suffered verbal abuse by mother, and mother had engaged in verbal and physical domestic violence in their presence. K.R. allegedly had suffered serious emotional damage, including “diagnoses of depression and anxiety.” K.R. was pregnant, and mother had not only failed to seek out prenatal care and treatment for K.R., but also “threaten[ed] to harm [her] unborn child.”

The following facts are taken verbatim from our opinion in defendant’s previous appeal. (People v. McShane (June 14, 2019, E069547) 2019 Cal. App. LEXIS 541 [nonpub. opn.].)
A. February 6: The Altercation at the Mobile Home.
Defendant lived with his son Brian, age 17, and his daughter Kristi, age 15. His children were home-schooled; they had a “tight-knit” group of friends who were also home-schooled. These included Kristi’s best friend, Heather Ryan. They also included Jerel Cobbs, Damien Saunders, and Devin Humphrey. Devin’s mobile home, near defendant’s house, was a “gathering place” for the group.
Around January 27, 2003, defendant’s daughter ran away from home; she went to live with a 21-year-old man whom she had met just three days earlier.
On February 6, 2003, defendant showed up at Devin’s mobile home. Six or seven teenagers were there, including Heather, Damien, and Jerel. Defendant asked if they knew where his daughter was; they said they did not.

At birth, Ella tested positive for amphetamines and showed withdrawal symptoms. Ella’s father N.W. (Father) told a social worker that Mother might have “ ‘slipped up’ ” and used methamphetamine toward the end of her pregnancy. Mother acknowledged using methamphetamine up until the fourth or fifth month of her pregnancy, but said she was not sure how she and Ella tested positive for amphetamines when Ella was born. She would later admit relapsing the night before Ella’s birth.
The Agency filed a petition under section 300, subdivision (b). Ella was removed from Mother’s custody and placed in the care of her paternal grandparents. Twenty-nine at the time of Ella’s birth, Mother admitted to the social worker that she had used drugs since the age of 14 and struggled with sobriety ever since.

Counsel has submitted an accurate summary of the facts of the offense. We will incorporate that statement here for convenience.
On September 29, 2021, Brandon H. was working as a cashier at the Ocean Beach CVS Store. At approximately 10:15 p.m. he was cleaning and preparing to close the store when he and a coworker noticed someone standing outside the store looking inside and repeatedly setting off the automatic door without entering the store.
Brandon was attentive to this because they frequently have shoplifters at the store. The store is close to the beach and at times there are homeless people that come to the store and loiter. This is why he and his coworker spoke about keeping an eye out. He saw an individual “hanging out and looking inside a bunch” for about a half hour. He couldn’t hear anything and didn’t see him make any hand gestures.

As set forth in this court’s earlier opinion, “In early September 2005, a Caltrans worker found the body of Angel Palacios on the side of eastbound Interstate 10, near the Eagle Mountain Road exit in Riverside County. The body was in an advanced state of decomposition and clothed only in shorts and boxers. Palacios’s last contacts were several telephone calls with Laura Grijalva on August 26, 2005. He told her that two friends were driving him back to Tucson, Arizona. Palacios never arrived in Arizona.” (People v. Mendez (Aug. 22, 2018, D073443) [nonpub. opn.] (Mendez I).) “Palacios had 30 to 40 sharp force injuries, consisting of stabbing wounds, chopping wounds and incised wounds. The chopping wounds could have been caused by a machete. Palacios also had three or four blunt force injuries on the top and back of his head, caused with force great enough to depress his skull. The cause of death was multiple sharp force trauma.