CA Unpub Decisions

L.F. (mother) appeals from an order terminating parental rights to her child, Zechariah W. (minor), and choosing adoption as the permanent plan. (Welf. & Inst. Code, 366.26.) The parties agree the order must be reversed because the Department of Children and Family Services (DCFS) failed to provide adequate notice of the proceedings pursuant to the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. 1901 et seq.) The DCFS urges this court to limit remand to consideration of the ICWA issue. Mother urges this court to reverse the order terminating parental rights, vacate the findings and orders of the juvenile court, and unconditionally remand the matter with specific directions, including a direction to conduct a new section 366.26 hearing. Court reverse and remand with directions solely to ensure compliance with ICWA.

Two-year-old T.G., through her counsel, seeks writ review (Welf. & Inst. Code, 366.26, subd. (l ); Cal. Rules of Court, rule 8.450) of the juvenile courts order setting a hearing under section 366.26 on August 30, 2007. Court deny the writ petition.

By petition for writ of mandate, father Michael N. challenges the juvenile court order terminating reunification services, and setting a permanency planning hearing. Court deny the requested relief.

Defendant Rocky Devon Froemel was accused of assault with a deadly weapon against Shannon Capurro (Pen. Code, 245, subd. (a)(1); undesignated section references are to the Penal Code; count 1); making criminal threats against Capurro ( 422; count 2); attempting to prevent or dissuade Capurro from causing a crime to be prosecuted and assisting in its prosecution ( 136.1, subd. (b)(2); count 3); and attempting to prevent or dissuade Capurro from testifying ( 136.1, subd. (a)(2); count 4). In addition, he was accused of having four prior convictions for assault with a deadly weapon, serious felonies that counted as strikes ( 667, subds. (a), (b)-(i), 1170.12).
After we filed our first opinion in this matter, in which we rejected all of defendants contentions and affirmed the judgment, the United States Supreme Court decided that Californias Determinate Sentencing Law violated Apprendi and Blakely so far as it permitted imposition of the upper term based on any fact, other than a prior conviction, not tried to the jury and found true beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham)). Upon defendants petition for writ of certiorari, the high court thereafter vacated our original opinion and remanded the matter to this court with directions to reconsider it in light of Cunningham. Court requested and received supplemental briefing from the parties on the issue. Concluding that any possible error in sentencing was harmless beyond a reasonable doubt, Court once again affirm the judgment.

Defendant challenges his conviction for first degree murder on the ground his trial was tainted by prejudicial misconduct by both the prosecutor and the jury. We find the prosecutor engaged in a troubling and extensive pattern of misconduct. But upon careful analysis of the entire record, we are convinced that the misconduct did not affect the verdict. We also find the claim of prejudicial juror misconduct unpersuasive. Accordingly, Court affirm the judgment.

Appellant filed this appeal from an order of the juvenile court that terminated jurisdiction over appellants teenaged daughter Haley M., and returned Haley to the custody of her father, Leo M. Appellant primarily contends the juvenile court erred by appointing a guardian ad litem for Haley who was not an attorney, even though Haley was also represented by a court appointed attorney. Court reject appellants contentions and affirm.

Dwayne Miguel Henderson appeals from the judgment entered following his convictions by jury on count one - kidnapping to commit carjacking (Pen. Code, 209.5, subd. (a)), count two - kidnapping to commit robbery (Pen. Code, 209, subd. (b)(1)), count three second degree robbery (Pen. Code, 211), and count four - carjacking (Pen. Code, 215, subd. (a)), each with firearm use (Pen. Code, 12022.53, subd. (b)). The court sentenced appellant to prison for life with the possibility of parole, plus 10 years. Appellant claims various trial errors occurred. Court affirm the judgment.

Defendant and appellant Walter J. Burns appeals from his conviction of first degree murder.[1]He contends: (1) he was denied due process as a result of the trial courts failure to instruct the jury on voluntary manslaughter as a lesser included offense, including the prosecutions burden to prove the absence of heat of passion; and (2) trial counsel was ineffective. Court affirm.

After a court trial, defendant and appellant Rubin F. Egland (defendant) was convicted of kidnapping to commit rape (Pen. Code, 209, subd. (b)(1))[1](count 1); forcible rape ( 261, subd. (a)(2)) (count 2); and genital and anal penetration by a foreign object ( 289, subd. (a)) (count 3). The trial court found true the allegation that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1) in the commission of counts 1 and 3 and that he used a firearm within the meaning of section 12022.3, subdivision (a) in the commission of counts 2 and 3. The trial court also found that the circumstances of the crime satisfied the requirements of section 667.61, subdivisions (a), (b), (d), and (e).
The trial court employed the one-strike sentencing scheme pursuant to section 667.61, subdivisions (f) and (g) and sentenced defendant to an indeterminate term of 25 years to life in count 3. The trial court stayed a life sentence in count 1 pursuant to section 654. The trial court imposed a determinate term of 11 years in count 2, which consisted of the midterm of six years and a five year enhancement pursuant to section 12022.3, subdivision (a). The trial court ordered the sentences in counts 2 and 3 to be served consecutively pursuant to section 667.6.
Defendant appeals on the grounds that: (1) the evidence was insufficient to sustain the conviction where the prosecution expert testimony and DNA evidence were contradictory; (2) the trial court applied an erroneous standard in ruling on defendants section 1118 motion for acquittal, and the failure to apply a beyond a reasonable doubt standard was structural error requiring automatic reversal; (3) the trial court erred in permitting the prosecution to introduce so-called rebuttal testimony that could have and should have been presented during the prosecutions case-in-chief, that went beyond the scope of rebuttal, and that constituted prosecutorial misconduct and denied defendant his right to due process; (4) the trial court imposed an unauthorized life sentence as punishment for defendants conviction of kidnap for rape in violation of section 209, subdivision (b)(1), and the sentence violated ex post facto proscriptions and due process guarantees; (5) imposition of a five year sentence for the section 12022.3 enhancement was unauthorized because that section does not provide for such a sentence; and (6) the abstract of judgment contains a clerical error, does not reflect the oral pronouncement of the trial court, and requires correction to strike reference to section 12022.53, which did not exist at the time of the offense.

The trial court denied a motion under Code of Civil Procedure section 473 by appellant NIC Insurance Company (NIC) to set aside the judgment in respondent Michael Johnsons action against NICs insureds. Court reverse.
Johnson initiated the underlying action against Manuel Medrano, Jose Medrano, Bobby Bates, and Medranos Restaurant on March 7, 2003. His first amended complaint (FAC), which was filed on March 28, 2003, alleged that Bates was employed as a bouncer at Medranos Restaurant, which was owned by Manuel and Jose Medrano. According to the FAC, Johnson was a customer at Medranos Restaurant on January 3, 2003, when he was negligently ejected from the restaurant and suffered injury as a result. It further alleged that on that date, Bates did intentionally, negligently, willfully, maliciously, wrongfully, and without probable cause, provocation, or legal justification, accost, assault, batter and injure Johnson. The FAC asserted a claim for assault and battery against Bates, a claim for negligent supervision, hiring, and training against Jose and Manuel Medrano and Medranos Restaurant, and a claim for negligence and premises liability against all the defendants.

Eduardo D., a minor, appeals from an order declaring him to be a ward of the court pursuant to Welfare and Institutions Code section 602 upon findings that he had committed forcible oral copulation (Pen. Code, 288a, subd. (c)(2)). The juvenile court ordered appellant into a short-term camp community placement program with a maximum term of confinement of eight years. Appellant contends that the evidence was insufficient to support the true finding of forcible oral copulation. Court affirm.

Arthur Watson appeals from the judgment entered following an order revoking probation and sentencing him to prison for the upper term of three years. Previously, he pled no contest to one count of possession of a controlled substance, methamphetamine (Health & Saf. Code, 11377, subd. (a)). Imposition of sentence was suspended, and he was placed on formal probation pursuant to the provisions of Penal Code section 1210.1. He contends the trial courts imposition of the upper term violated his federal constitutional rights to a jury trial, proof beyond a reasonable doubt and due process. For reasons stated in the opinion, Court affirm the judgment.

Gary Haskell appeals from the judgment entered following his pre preliminary hearing plea of guilty to two counts of identify theft and one count of theft and resulting sentence to the low term for identity theft (a concurrent term was imposed on the second identity theft count and sentence for theft was stayed). The crimes were committed between October 23 and December 10, 2006, when defendant, while working at a restaurant, used a stolen credit card to create false food bills, including a tip for himself.
Court have examined the entire record and are satisfied that defendants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109110; Peoplev.Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed.

Francisco G, seeks extraordinary writ review of a juvenile court order terminating family reunification services for his children, and setting the matter for a permanent plan hearing. (Welf. & Inst. Code, 366.26; Cal. Rules of Court, rule 8.452.) Court deny the petition for extraordinary writ.