CA Unpub Decisions

On April 19, 2019, pursuant to a negotiated plea agreement, Adrian Arriaga pleaded guilty to one felony count of assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) in exchange for a grant of probation. (Unlabeled statutory references are to the Penal Code.) The trial court suspended imposition of sentence and placed Arriaga on formal probation for 36 months with various terms and conditions, including a custody term of 210 days in county jail, which Arriaga was permitted to complete on a work release program. (See § 4024.2.)
Effective January 1, 2021, Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Stats. 2020, ch. 328, § 2) (Assembly Bill 1950) amended section 1203.1 so that the maximum period of probation for most felonies shall not exceed two years.

Defendant and appellant David Jerry Torres challenges the trial court’s decision declining to exercise its discretion under Penal Code section 12022.53, subdivision (h), to strike his firearm enhancement. He argues the matter should be remanded because the sentencing court failed to orally pronounce the sentence during the resentencing hearing and also because the court did not understand its discretion to impose a lesser included firearm enhancement.
We previously agreed that the matter must be remanded for the court to orally pronounce sentence but disagreed that the court had discretion to impose a lesser uncharged firearm enhancement. The California Supreme Court granted review, S272226, and deferred further action pending consideration and disposition of a related issue in People v. Tirado, S257658.

During an investigation of a referral from Child Protective Services in December of 2017, Jane Doe 1 and Jane Doe 2, granddaughters of Perez who were respectively 12 and 13 years old at the time, told a social worker that Perez had touched them “inappropriately.” The social worker contacted police and referred the girls for forensic interviews.
B. Forensic Interviews
Jane Doe 1 and Jane Doe 2 were interviewed by a child forensic interviewer. The interviews were recorded by video and audio.
Jane Doe 1 told the forensic interviewer that Perez had touched her “a lot” and described several incidents. The first incident that Jane Doe 1 recalled occurred when she was 11 or 12 years old and Perez drove her in his semi-truck to a truck stop; while they were inside the truck, he pulled down her pants, touched her vagina, kissed and licked it, and inserted his finger into it. Jane Doe 1 also told the interviewer that Perez had inserted his penis into her vagina “[a] bunch of times.”

Fitch has not challenged the sufficiency of the evidence to support his convictions; therefore, we summarize the facts mainly to provide context for the first contention. We rely in part on the probation report.
On April 19, 2015, Fitch babysat Doe, the son of R.H., an old high school friend. When Fitch returned Doe to R.H., he showed her a bruise on Doe’s chest, saying it must have happened the previous day, when R.H. had taken Doe to a trampoline park, or from Doe’s car seat. R.H. doubted those explanations.
On April 23, 2015, R.H. asked Fitch to babysit Doe from 1:00 p.m. to 4:00 p.m. and Fitch agreed. When R.H. dropped Doe off at Fitch’s residence at around 12:30 p.m., Doe cried and appeared like he did not want to be with Fitch. R.H. left for work and a few minutes later, Fitch sent her a text message indicating that in “25 seconds” Doe had stopped crying. He included a photograph depicting Doe in good spirts.

A jury found Issac Martinez guilty of one count of murder and found that the murder was in the first degree. During the trial, the People presented evidence that Martinez committed the murder with a minor, J.M. and that both J.M. and Martinez were members of the same criminal street gang.
The jury further found that Martinez: (1) committed the offense for the benefit of, or in association with, a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1); (2) intentionally and personally discharged a firearm and proximately caused great bodily injury and death to a person, within the meaning of section 12022.53, subdivision (d); and (3) was a principal in the murder, and in the commission of the murder, at least one principal personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person.

This appeal involves five separate cases that were resolved in a plea agreement. In case No. 20F5297, the prosecution charged defendant with vandalism. (Pen. Code, § 594, subd. (b)(1).) In case No. 20F8072, the prosecution charged defendant with a hit and run causing death or serious injury. (Veh. Code, § 20001, subd. (b)(2).) In case No. 21F3977, the prosecution charged defendant with a single count of first degree burglary (§ 459), which the prosecution alleged was a serious and violent felony. (§§ 1192.7, subd. (c)(18), 667.5, subd. (c)(21).) In case No. 21F6684, the prosecution charged defendant with attempted second degree burglary (§§ 664, 459), vandalism (§ 594, subd. (b)(1)), second degree burglary (§ 459), and receiving stolen property. (§ 496, subd. (a).)

This appeal involves five separate cases that were resolved in a plea agreement. In case No. 20F5297, the prosecution charged defendant with vandalism. (Pen. Code, § 594, subd. (b)(1).) In case No. 20F8072, the prosecution charged defendant with a hit and run causing death or serious injury. (Veh. Code, § 20001, subd. (b)(2).) In case No. 21F3977, the prosecution charged defendant with a single count of first degree burglary (§ 459), which the prosecution alleged was a serious and violent felony. (§§ 1192.7, subd. (c)(18), 667.5, subd. (c)(21).) In case No. 21F6684, the prosecution charged defendant with attempted second degree burglary (§§ 664, 459), vandalism (§ 594, subd. (b)(1)), second degree burglary (§ 459), and receiving stolen property. (§ 496, subd. (a).)

This writ petition originates from a petition filed on December 16, 2020, under section 300. The petition alleged that the minors, J.K., E.C., and A.C., came within the provision of section 300, subdivision (a), serious physical harm; section 300, subdivision (b), failure to protect; section 300, subdivision (e), severe physical abuse; and section 300, subdivision (g), no provision for support; and section 300, subdivision (j), abuse of sibling.
On December 14, 2020, the Agency received a report from Stockton Police Department concerning A.C., who was found to have a parietal skull fracture, subdural hematomas on the left and right side of the brain, an overlying subgaleal hematoma, a one and a half-inch long laceration above the right eyebrow, left frontal contusion, and “scattered” bruises on the temple area.

Because mother’s sole claim challenges compliance with the ICWA, we limit the background summary to ICWA related facts and procedure unless otherwise relevant to the issue on appeal.
The minor was removed from mother’s sole custody after the Agency filed a dependency petition pursuant to section 300, subdivisions (b)(1), (g) and (j). Mother informed the Agency that T.B. was the minor’s father because he was with mother when the minor was born and he signed the minor’s birth certificate. However, mother later reported that T.B. was not the minor’s biological father. Instead, the biological father was a man named Jonathan, with whom she had had a “brief encounter” when she lived in Mexico. Mother did not know Jonathan’s last name, but she stated he lived in Mexico and had never been in the minor’s life. The juvenile court ordered the minor detained and declared T.B. to be the minor’s biological father.

Because the issue on appeal is limited to ICWA compliance, we dispense with a detailed recitation of the underlying facts and procedure.
On July 30, 2019, the Agency filed a section 300 petition on behalf of newborn minor G.A., alleging the minor came within the provision of section 300, subdivision (b), failure to protect, and section 300 subdivision (j), abuse of sibling. In the detention report, the social worker reported asking mother and the alleged father if they had any Native American ancestry, which they both denied. Based on those responses, the social worker reported that there was no reason to believe the minor was an Indian child within the meaning of the ICWA.
At the July 31, 2019, detention hearing, the juvenile court appointed counsel and a guardian ad litem (GAL) for mother. Mother informed the court that she did not have any Native American ancestry. The court ordered the minor detained in protective custody and granted supervised visitation for mother.

On August 19, 2019, the Department filed a petition alleging the minor, then eight years old, was described pursuant to section 300, subdivision (b), in that, L.C., mother of the minor, failed to protect her and her siblings by engaging in domestic violence with her husband in the presence of the minor and her siblings. On the same date, the Department filed a request to place B.T. and her siblings into protective custody due to the ongoing domestic violence in the home, which was granted.
On August 21, 2019, the Department filed a detention report requesting that the juvenile court order out-of-home placement of B.T. pending the jurisdiction/disposition hearing. B.T. reported seeing her stepfather choke mother when she was present. Father was contacted and reported he had concerns as he had not heard from mother since approximately August 5, 2019. Father stated he saw B.T. approximately two to three times per month and he spoke with her by telephone or text message regularly.

Following a contested jurisdiction hearing, the juvenile court found true, beyond a reasonable doubt, that the minor committed first degree murder, unlawfully took a vehicle, bought or received stolen property, and resisted arrest. The court also found true a firearm enhancement allegation. It committed the minor to DJJ for “52 years to life with confinement until he reaches the age of 25,” subject to the statutory limitation, and awarded him 766 days of custody credit for time served at a local holding facility. But the award does not include the days the minor spent on electronic monitoring in prior petitions. The minor timely appealed.

Following a contested jurisdiction hearing, the juvenile court found true, beyond a reasonable doubt, that the minor committed first degree murder, unlawfully took a vehicle, bought or received stolen property, and resisted arrest. The court also found true a firearm enhancement allegation. It committed the minor to DJJ for “52 years to life with confinement until he reaches the age of 25,” subject to the statutory limitation, and awarded him 766 days of custody credit for time served at a local holding facility. But the award does not include the days the minor spent on electronic monitoring in prior petitions. The minor timely appealed.

Following a contested jurisdiction hearing, the juvenile court found true, beyond a reasonable doubt, that the minor committed first degree murder, unlawfully took a vehicle, bought or received stolen property, and resisted arrest. The court also found true a firearm enhancement allegation. It committed the minor to DJJ for “52 years to life with confinement until he reaches the age of 25,” subject to the statutory limitation, and awarded him 766 days of custody credit for time served at a local holding facility. But the award does not include the days the minor spent on electronic monitoring in prior petitions. The minor timely appealed.