CA Unpub Decisions

Appellant was convicted of first degree murder for fatally shooting her 96-year-old mother Gretchen. The shooting was preceded by many years of strife between appellant and her mother, but on the day it occurred, there was no arguing or friction between them. Appellant simply retrieved a gun from her car, calmly walked up to Gretchen, and shot her in the forehead while she was talking on the phone. Although appellant had been drinking before the shooting, the jury rejected her claim she accidentally killed Gretchen while trying to commit suicide.
At the time of the shooting, appellant was 71 years old. The trial court sentenced her to 25 years to life for the murder, plus a 25-year-to-life enhancement for causing death with a firearm pursuant to section 12022.53(d). The court did not impose sentence on a second enhancement allegation the jury found true, namely, that appellant personally used a firearm within the meaning of section 12022.5, subdivision (a).

Two-year-old Marcus and one-year-old A.C. were removed from the custody of their mother in December 2018 because she was a substance abuser and failed to supervise and properly care for them. Law enforcement found the children several times playing along the highway unattended and the condition of the family home was substandard. Father was incarcerated with a release date of November 2023. The children were placed together in foster care.
The juvenile court exercised its dependency jurisdiction over the children in February 2019, ordered the mother to participate in reunification services but denied father services because of the length of his incarceration. (§ 361.5, subd. (e)(1).)
At the six-month review hearing in July 2019, the juvenile court terminated mother’s reunification services and set a section 366.26 hearing for November 6, 2019. Neither parent filed an extraordinary writ petition.

In January 2020, law enforcement took then 11-year-old S.L. and his 14-year-old brother, L.L. (the boys), into protective custody and arrested mother for child endangerment after investigating allegations that she used excessive physical force in disciplining them. L.L. disclosed multiple incidents of being hit in his testicles with a belt buckle, punched in the stomach and in the face and pushed into the kitchen counter by mother. S.L. reported mother hit him with a belt, paddle, or her fist a couple of times a week, leaving bruises. Mother made him take long baths in Epsom salt to diminish the marks and bruises. The fathers of the boys were aware mother was physically abusing them but did not intervene to protect them. The boys were placed in the care and custody of the Merced County Human Services Agency (agency) and into a foster home.

Initial Petition and Detention
On January 14, 2020, the Kern County Department of Human Services (department) filed a petition on behalf of one-month-old Elizabeth and her three siblings pursuant to section 300, subdivision (b)(1)–(3) alleging she had suffered, or was at substantial risk of suffering, serious physical harm or illness due to the parents’ failure to protect her. Mother had a history of substance abuse and had used methadone and heroin while pregnant with Elizabeth. Although father knew of mother’s substance abuse, he allowed her to be the children’s primary caretaker.
On January 15, 2020, at the detention hearing, the juvenile court ordered Elizabeth detained and granted mother and father supervised visits two times a week for two hours.
Jurisdiction and Disposition
On January 16, 2020, mother and father had their first supervised visit. They had two additional visits in February 2020. The department reported mother and father visited consistently.

Because defendant’s plea was entered pursuant to People v. West, the trial court relied on the police reports in finding a factual basis. The probation officer summarized the facts of a police report in defendant’s case.
Defendant was in a sexual relationship with the confidential victim (CV). On December 14, 2020, at approximately 3:08 a.m., Fresno police officers responded to a domestic disturbance call involving defendant and CV. CV told officers she had an active warrant and asked to be arrested. Officers removed CV from defendant and discovered that she had no active warrant. CV told officers that she was staying at a friend’s house when defendant told her to come outside and threatened to burn the house down if she would not comply. She exited the home. Defendant then struck her with a belt, grabbed her hair, and forced her to his vehicle.
CV also told officers that on December 13, 2021, defendant struck her repeatedly on her left arm with his closed fist.

On October 18, 2019, the Madera County District Attorney filed an amended information in case No. MCR063302 charging defendant with assault with a means of force likely to cause great bodily injury (“force-likely assault”) (Pen. Code, § 245, subd. (a)(4); count 1) and misdemeanor violation of a protective order (§ 273.6, subd. (a); count 2).
That same day, defendant pled guilty to both counts.
On November 18, 2019, the trial court placed defendant on three years of probation in case No. MCR063302.
On February 11, 2020, a petition was filed to revoke defendant’s probation in case No. MCR063302. It alleged that defendant had failed to report monthly as directed by her probation officer. Defendant admitted the allegation. Her probation was revoked and reinstated for a period of three years.
On March 17, 2020, a second petition to revoke defendant’s probation in case No. MCR063302 was filed.

The present case marks the third round of dependency proceedings for 10-year-old A.G. and six-year-old M.W. In February 2013, mother participated in a voluntary family maintenance case with Fresno County Department of Social Services due to mother’s physical abuse of the children’s three older siblings, D.C. (now 18 years old), J.C. (now 17 years old), and S.G. (now 15 years old), (collectively, the siblings). The voluntary family maintenance case closed in February 2014, after mother met her case plan goals.
In June 2015, dependency proceedings were initiated in Fresno County Superior Court as a result of mother’s physical abuse of J.C. and the risk that the children, D.C., and S.G. would be physically abused by mother. Mother and Michael W., the presumed father of M.W., both participated in family reunification services and were granted custody of their children with dismissal of dependency in February 2017.

On April 2, 2021, at about 12:32 a.m., a sheriff’s deputy observed defendant entering a convenience store. The deputy knew defendant was on probation, and the deputy detained defendant without incident. As the deputy approached defendant’s vehicle, his girlfriend started to cry and told the deputy she and defendant were not supposed to be together because of a protective order that prohibited defendant from being with her.
The deputy asked the girlfriend to exit the vehicle and then he searched the vehicle. In the girlfriend’s purse, he found two large clear plastic bags with a total weight of 106 grams of methamphetamine. He also found a digital scale with white residue in her purse and another digital scale in the vehicle.
After receiving his Miranda rights, defendant told the deputy he was aware of the protective order, but he and his girlfriend were in love and living together. The deputy searched him and found $808 in cash on his person.

On September 15, 2020, Chowchilla police responded to a report that two females were engaged in an altercation. When they arrived, defendant’s sister told a responding officer defendant was barricaded in the garage. After additional officers arrived and convinced defendant to leave the garage, defendant informed one of the officers that she had been sleeping in the garage when her sister started banging on the door. Defendant stated that when she opened the door, her sister punched her in the face. One officer noted he could smell alcohol on defendant’s breath at this time.
When officers talked to defendant’s sister, she told them that while the family was eating dinner, defendant was “stomping around and opening and closing doors violently.” After the sister’s daughter expressed a desire to leave, they stepped outside the house and noticed their car had been damaged. The damage to the car consisted of spray-painted obscenities and gang references.

On October 15, 2020, defendant pled no contest to the following counts: In case No. PCF395446, he pled to domestic violence (§ 273.5, subd. (a); count 1), child endangerment (§ 273a, subd. (a); count 3), carrying a concealed dirk or dagger (§ 21320; count 4), and misdemeanor resisting arrest (§ 148, subd. (a)(1); count 5); in case No. PCF386247, he pled to being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 1), unlawful firearm activity (§ 29805; count 2), possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1; count 3), being a felon in possession of ammunition (§ 30305, subd. (a)(1); count 4), and misdemeanor resisting arrest (§ 148, subd. (a)(1); count 5). The plea was in exchange for a three-year prison term and dismissal of the remaining counts.
On May 14, 2021, the trial court sentenced defendant to the agreed-upon three years in prison.

The following statement of facts is derived from the probation officer’s report in Weathers’s underlying criminal case:
“On December 23, 1990, at 4:52 a.m. Fresno Police Department officers were dispatched to [a condominium on] Winery Circle [in] Fresno regarding a robbery where the victim was shot in the head. Officers located the victim, William Paul McClelland, in the garage area of the residence, and noted he had a bleeding wound in the forehead area. Paramedics arrived and transported the victim to Valley Medical Center.
“Tanya Minnick testified that in December 1990 she resided [in a condominium on] Winery Circle [in] Fresno with her fiancee, William Paul McClelland (also called Paul McClelland). She said they had been living together at her condominium for about six and a half months. She reported that in August 1990 Paul McClelland was arrested and he was in jail for eight days.

On December 27, 2019, the Kern County District Attorney filed an information charging defendant with possession of heroin while armed (Health & Saf. Code, § 11370.1, subd. (a); count 1), possession of firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 2), possession of ammunition by a felon (§ 30305, subd. (a)(1); count 3), transportation or sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 4), possession of methamphetamine (Health & Saf. Code, § 11378; count 5), possession of heroin for sale (Health & Saf. Code, § 11351; count 6), and possession of methamphetamine by a jail inmate (§ 4573.6; count 7). As to counts 1 through 6, the information alleged the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant was personally armed with a firearm in the commission of the offenses charged in counts 4 through 6 (§ 12022, subd. (c)).

Defendant’s wife, Payao, has four younger sisters, L.V., S.V., G.V., and A.V. When Payao’s sisters were elementary, middle and high school age, they would frequently babysit defendant and Payao’s young children.
Payao’s youngest sister, A.V., started helping babysit defendant’s children when she was in kindergarten. A.V. frequently spent the night at defendant’s house after babysitting the children.
When A.V. was in kindergarten, defendant started coming into the bedroom while she slept and would touch her breast area and rub her vagina. His conduct escalated to digital penetration of A.V. “[w]henever he got the chance”—more than 30 times—from the time she was in first grade until she was in seventh grade. Defendant also began to rape A.V. while she was in elementary school. A.V. would awake to defendant touching her breasts and vagina before he inserted his penis into her vagina. She always pushed him away and told him to stop but he would not.

In an information filed in December 2011, defendant and codefendants Roberto Estrada, Jr., and Miguel Quintero were charged with several Penal Code violations (undesignated statutory references are to the Penal Code): attempted murder (§§ 664, 187, subd. (a); count 1); carjacking (§ 215, subd. (a); count 2); first degree robbery (§§ 211, 212.5, subd. (b) [ATM robbery]; count 3); assault with a firearm (§ 245, subd. (a)(2); count 4); assault with a deadly weapon (i.e., knife) (§ 245, subd. (a)(1); count 5). The information also contained several special allegations as to defendant: that counts 1 through 4 were violent felonies subject to the gang enhancement found in section 186.22, subdivision (b)(1)(C); that count 2 is subject to section 186.22, subdivision (b)(4); that count 5 was subject to the gang enhancement found in section 186.22, subdivision (b)(1)(A); that defendant personally caused great bodily injury with respect to all five counts (§ 12022.7, subd. (a))