CA Unpub Decisions

The court found true count 1 of the juvenile wardship petition that minor possessed a knife on school grounds. (Pen. Code, 626.10, subd. (a).) Minor was declared a ward of the court and placed on probation. On appeal, minor contends (1) there was insufficient evidence to support the juvenile courts true finding; and (2) there is a discrepancy between the clerks transcript and the reporters transcript as to condition No. 10 of minors probation and, regardless of which version is accepted, the condition does not meet the standard put forth in People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded on another ground by Proposition 8 as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.
On appeal, minor makes two contentions. First, minor asserts there was insufficient evidence to support the courts finding that he possessed a knife on school grounds. Specifically, minor contends there was a lack of substantial evidence to prove (1) he had knowledge the knife was in his possession; and (2) he knew the length of the knife blade exceeded two and one-half inches. Minors second contention is that the discrepancy between the reporters transcript and the clerks transcript concerning probation condition No. 10 should be resolved in favor of the clerks transcript. However, regardless of which version of the probation condition prevails, minor contends condition No. 10 is invalid under the standard put forth in Lent, supra, 15 Cal.3d at page 486.
Court find that probation condition No. 10 is related to future criminality and, therefore, does not violate the standard put forth in Lent, supra, 15 Cal.3d at page 486.The judgment is affirmed.

Appellant appeals from a conviction of driving under the influence of alcohol and/or drugs and driving a vehicle with a prior felony conviction of an offense which occurred within 10 years of the current offense. (Veh. Code, 23152, subd. (a) & 23550.) Robinson entered a plea of nolo contendere to the offenses. On appeal, he contends he was not competent at the time of sentencing and that his request for a competency hearing was denied by the trial court in violation of his due process rights. The judgment is affirmed.

Enrique Acosta Corrales appeals from a judgment of life in prison, plus 24 years, for unpremeditated attempted murder of and assault with a semiautomatic firearm on police officers. He contends that the trial court erred in instructing the jury and in sentencing him. Court affirm.

Jeannine Brown (Jeannine) was married to appellant, Evan William Brown, in 1996 and had a son named Tanner with him. In 2000, the couple separated. In October 2005, Jeannine obtained a restraining order against Brown because Brown was making harassing phone calls to her, stalking her, and leaving letters at her house and on her car. In one letter to Jeannine, Brown wrote, [E]very whore gets what they deserve, and youll be getting yours. Thereafter, Brown violated the restraining order by waiting for her in the parking lot of the daycare center Tanner attended, waiting in a parking lot near the entrance to Jeannines apartment complex to see her come and go, and showing up in the parking lot of the business where she worked. Browns contacts with Jeannine made her scared of him and caused her to worry about Tanner.
Following independent review of the record we find that no reasonably arguable factual or legal issues exist. The judgment is affirmed.

Appellant is the biological father of dependent child Ezra D., whom the Tulare County Superior Court freed for adoption (Welf. & Inst. Code, 366.26) in December 2006.[1] Appellant contends the court failed at earlier stages of the dependency proceedings to: make an adequate paternity inquiry of Ezras mother, inform him of his rights as an alleged father and produce him in court. He also claims Indian Children Welfare Act (25 U.S.C. 1901 et seq.; ICWA) notice violations. On review, we are not persuaded by appellants paternity-related issues. Nevertheless, Court reverse the termination order for a limited remand regarding ICWA notice.

The child was born in March 2005. Although the record is not entirely clear on this point, it appears the child may have been born after the father was incarcerated on drug charges. The mother has a 2005 felony conviction for drug sales and a 2005 misdemeanor conviction for petty theft. The mother and child came to the attention of the Department of Human Services (the Department) in October 2005, after the mother told paramedics she was hearing voices and was referred for a psychiatric evaluation. It seems that after the mother stated she no longer was hearing voices, she was allowed to go home, and she continued to care for the child until June 2006, when she initiated contact with the Department, seeking aid for herself and the child. On June 28, 2006, the mother, her family members and the social worker reached an informal agreement that the mothers uncle and his girlfriend would care for the child while the mother got back on her medications. Approximately two weeks later, the mother disappeared with the child. She was referred to a mental health clinic on July 14, 2006, where she was observed to be actively psychotic. On July 20, 2007, the Departments team met with the mother, the mothers uncle and his girlfriend, and it was then agreed the mother could not stay in her uncles home and would not be left alone with the child until a psychiatrist had found her to be capable of caring for the child.
On July 24, 2006, the Department filed a petition alleging that the child, then 15 months old, was a child described by Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support.)[1] On July 26, 2006, the court ordered the detention of the child, placing her with the mothers uncle. The father was in jail awaiting trial for possession of cocaine, but stated an interest in raising the child. The child had adjusted well to living with the mothers uncle and his girlfriend, who stated a willingness to adopt or to be legal guardians if the parents were unable to reunify with the child. The matter was continued to September 20, 2006, to November 3, 2006, to November 17, 2006, to December 8, 2006 and finally to December 21, 2006.

In the meantime, in October 2006, the mother was arrested for petty theft with a prior. As of December 2006, both the mother and father were in jail and the mother continued to exhibit mental issues suggestive of schizoaffective disorder or schizophrenia. By this time, the Department also had learned a little about the fathers criminal history, reporting that at the age of 17, the father had killed a man in connection with a drug deal. The father served time for that offense until late 1998. The father was about to be sentenced on his current case, and it was believed he would be released in March or April 2007. The Department believed it was unlikely either parent would be able to reunify with the child, noting the father had continued to engage in a drug-related lifestyle.

At the December jurisdictional/dispositional hearing, both parents appeared. They agreed to waive their rights to a contested hearing, and admitted to the allegations of an amended petition. The court set the matter over to March 21, 2007, for the six-month review hearing, over the fathers objection that the March date was only three months away. The court adopted the reunification requirements set forth in the disposition report, which included that the father successfully complete a parenting education program, obtain suitable housing, cooperate with the child welfare worker in developing a case plan, sign necessary releases, complete a drug and alcohol assessment, participate in drug testing on a regular, consistent basis, participate in mental health services and provide adequate supervision for the child. The Department explained that when the father was released, he would need to contact the Department so he could be assessed for visitation. The father appeals. court affirm.

In these two consolidated appeals, Stephanie Laney, Danny Waitman, and others, on their own behalf and on behalf of others similarly situated, sued the manufacturers of electrical receptacles known as back-wire push-in receptacles. The plaintiffs alleged that the receptacles posed an unreasonable risk of fire and damage to electrical wiring. The trial court concluded that the plaintiffs amended complaints alleged facts inconsistent with facts alleged in their original complaints concerning damages, disregarded the later allegations, and concluded that the economic loss rule barred the counts for negligence and strict products liability. The court therefore sustained demurrers to those counts without leave to amend. The court later sustained demurrers to the plaintiffs remaining counts for violation of the unfair competition law (Bus. & Prof. Code, 17200) without leave to amend and dismissed the complaints.

On appeal, the plaintiffs contend their amended complaints properly alleged damage to property other than the receptacles themselves, were not sham pleadings, and were not barred by the economic loss rule. They also contend their later amended complaints adequately allege an injury-in-fact as required to establish standing under the unfair competition law and adequately allege unlawful business practices and deceptive advertising. Court conclude that the sustaining of the demurrers to the counts for negligence and strict products liability without leave to amend was proper, but that sustaining of the demurrers to the unfair competition counts was error. Court therefore reverse and remand with directions.

A jury found defendant and appellant Darnell Brim (defendant) guilty of possession of cocaine base for sale (Health & Saf. Code, 11351.5) and possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)[1]). The jury found true the allegation that defendant was personally armed with a firearm in the commission of those offenses. ( 12022, subd. (c).) Defendant waived his right to a jury trial on the allegations that he suffered two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a) and that he suffered a prior juvenile adjudication within the meaning of the Three Strikes law ( 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The trial court found true the Health and Safety Code allegation, but found insufficient evidence to support the allegation under the Three Strikes law. The trial court sentenced defendant to 14 years in state prison.

On appeal, defendant contends that the evidence was insufficient to support his conviction for possession of cocaine base for sale and his sentence enhancement for being armed with a firearm, the trial court violated his due process rights and right to present witnesses when it denied his motion to disclose the identity of a confidential informant while allowing prosecution witnesses to testify about events to which the confidential informant was a percipient witness, the prosecution failed to disclose and effectively destroyed exculpatory evidence in violation of his due process rights and right to confrontation, he received ineffective assistance of counsel, and the cumulative effect of the errors requires reversal. Respondent contends that the record must be corrected to reflect the imposition of a mandatory $50 criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a); a mandatory $50 penalty pursuant to section 1464, subdivision (a); and a mandatory $35 penalty pursuant to Government Code section 76000, subdivision (a), that the trial court omitted from defendants sentence. Respondent also contends that the trial court erred in failing to impose a $200 state court construction penalty pursuant to Government Code section 70372, subdivision (a) on defendants $400 restitution fine ( 1202.4, subd. (b)(1)) and a stayed $200 state court construction penalty pursuant to Government Code section 70372, subdivision (a) on defendants $400 parole revocation restitution fine ( 1202.45).

We asked the parties to submit supplemental briefs addressing the issue of whether the trial court erred in failing to impose a 20 percent $10 state surcharge on any $50 criminal laboratory analysis fee pursuant to section 1465.7, subdivision (a); a $25 state court construction penalty on any criminal laboratory analysis fee pursuant to Government Code section 70372, subdivision (a); a $25 state court construction penalty on any $50 section 1464 penalty assessment pursuant to Government Code section 70372, subd. (a); and a $17.50 state court construction penalty on any Government Code section 76000, subdivision (a) penalty pursuant to Government Code section 70372, subdivision (a). We also asked the parties to address whether the trial court erred when it stayed $200 of the $400 restitution fine ( 1202.4, subd. (b)(1)), when it stayed $200 of the $400 parole revocation restitution fine ( 1202.45), and when it imposed a $20 court security fine under section 1465.8 on only one of defendants two convictions.
Court affirm the judgment and order the abstract of judgment modified to include a $50 criminal laboratory analysis fee pursuant to Health and Safety Code section 11372.5, subdivision (a); a $50 penalty pursuant to section 1464, subdivision (a); a $35 penalty pursuant to Government Code section 76000, subdivision (a); state court construction penalties totaling $467.50 pursuant to Government Code section 70372, subdivision (a), of which $467.50 total $200 is stayed; and $40 in court security fines. The abstract of judgment also shall reflect a fully imposed $400 restitution fine and a fully stayed $400 parole revocation restitution fine.

After filing a complaint alleging forgery of a document entitled Substitution of Trustee and Full Reconveyance, plaintiff Mohamad Touric Nehmeh requested dismissal of the action. After entry of the dismissal, two of the eight named defendants in Nehmehs actionEdmond Heraux and Perry Sandermanfiled a motion to be deemed prevailing parties entitled to attorney fees. Heraux and Sanderman appeal from the order denying their motion for attorney fees. Court affirm.

Defendant and appellant George Luis Aceves was charged with narcotics possession and two weapon violations. After defendants motion to suppress evidence pursuant to Penal Code section 1538.5 was denied, defendant pled no contest to possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)) and the other counts were dismissed. Defendant was placed on felony probation for a period of three years.
Defendant timely appealed contending there was no reasonable suspicion justifying his detention and any evidence seized as a result was inadmissible. Court affirm.

Appellant was hired by George Rusznak to remove a fallen tree. The tree was on property owned by respondents George and Julie Rusznak and the Rusznak Family Trust (Rusznaks). Flores was injured by a limb that fell from the tree while he was attempting to remove it. His complaint for premises liability and negligence was resolved by summary judgment in favor of the Rusznaks. Court affirm.

A jury convicted defendant and appellant Vincent Ellison Williams of 12 counts of the following sex offenses: forcible child molestation (Pen. Code, 288, subd. (b)(1)),[1]forcible sodomy ( 286, subd. (c)), rape ( 261, subd. (a)(2)), and child molestation ( 288, subd. (a)). The jury returned findings that there were multiple victims as to each count within the meaning of section 667.61, subdivision (b).[2] The trial court imposed 12 consecutive terms of 15 years to life, totaling a sentence of 180 years to life. The trial court also ordered defendant pay a $200 restitution fine ( 1202.4, subd. (b)(1)), another $200 parole revocation fine ( 1202.45),[3]a $20 court security fee ( 1465.8), and a $200 sex offense fine ( 290.3, subd. (a)).
In defendants timely appeal, he contends the trial court imposed consecutive terms under the mistaken belief that such terms were mandatory. The Attorney General disputes that contention and separately asserts the trial court failed to adequately fine defendant and requests he be charged an additional $220 in security fees, $200 state penalty assessment, $140 county penalty assessment, $40 state surcharge, and $100 court facilities construction surcharge. Court affirm the consecutive sentencing in counts 1 through 12 and order the abstract of the judgment corrected to reflect the additional fees in accordance with the Attorney Generals position.

Eric R. appeals an order of the juvenile court terminating his parental rights to Camilia L. (Welf. & Inst. Code, 366.26, subd. (c)(1).) He argues that the Ventura County Human Services Agency (HSA) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C.A. 1901 et seq.) HSA acknowledges that it erred in complying with the ICWA and is attempting to cure the error. Court reverse and remand for the limited determination of whether the ICWA applies.

Heidi W. appeals an order of the juvenile court declaring that her daughter I. is adoptable, and terminating her parental rights. (Welf. & Inst. Code, 366.26, subd. (c)(1).) Court modify the order to provide for visitation at the discretion of the San Luis Obispo County Department of Social Services ("DSS"), but otherwise affirm.
Heidi W. also appeals an order denying her modification petition filed pursuant to section 388. Court affirm.