CA Unpub Decisions

A jury convicted defendant and appellant Ray Weatherspoon of second degree burglary and petty theft. After a court trial, the court found true 11 prior prison term allegations under Penal Code[1]section 667.5, subdivision (b). The trial court imposed five one-year terms under section 667.5, subdivision (b), but struck the remaining six. Citing the stricken prior prison terms and that Weatherspoon was on parole at the time he committed the current offenses, the trial court imposed the upper terms on both counts. Weatherspoons sole contention on appeal is the imposition of the upper terms violates Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). Court disagree, and Court therefore affirm the judgment.

Plaintiff and appellant Pierre Genevier appeals from the judgment of dismissal entered after the trial court sustained the demurrer of defendant and respondent State of California to appellants First Amended Complaint (FAC). Appellant contends the trial court erred in finding respondent: (1) immune from liability under Government Code section 818.8; (2) not liable under the section 815.6 exception to section 818.8; and (3) immune from liability under the doctrine of quasi-judicial immunity. Court affirm.

Plaintiff Mac Babb appeals from a judgment entered after the grant of summary judgment in favor of defendant Nina Lee Thompson on his complaint filed after Thompson rejected Babbs creditors claim against Thompsons deceased mothers estate. Babb was a judgment creditor to a South Carolina judgment against Thompsons mother, and sought to enforce that judgment against Thompsons deceased mothers estate. By assigning the judgment to Brenda R. Babb, however, Babb assigned all his interest in that judgment, including legal title. He therefore had no interest in the judgment, and because he was not a real party in interest, lacked standing to bring this action. Babb claimed to represent Brenda R. Babbs interest in enforcing the judgment, but because Babb is not licensed as an attorney in the State of California, he could not represent her. Finally, although defendant Thompson filed an untimely answer to Babbs complaint, her answer was filed with the court when Babb applied for entry of a default against Thompson. The Clerk is not authorized to enter a default where a defendants answer is on file, and the filing of a late answer did not preclude the grant of summary judgment in favor of Thompson. Court affirm the judgment.

Maria E. and Severiano R. appeal orders declaring their minor children Claudia R. and Dulce R. (together minors) dependents of the juvenile court under Welfare and Institutions Code[1]section 300, subdivisions (b) and (g) and removing the minors from parental custody under section 361, subdivision (c)(1). Maria and Severiano challenge the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. Court conclude substantial evidence supports the court's jurisdictional findings under section 300, subdivision (b), but not under subdivision (g). As to the court's dispositional orders, Court conclude the issue is moot because the minors have been returned to Maria's custody.

Plaintiffs and appellants Donald R. Beck, Jr., and Dorothy M. Beck (hereafter the Becks) appeal an adverse ruling on a claim for refund of allegedly excessive property taxes. Court affirm the judgment.

Defendant and appellant Jose Angel Ortiz challenges three of the probation conditions imposed by the trial court at his sentencing after a guilty plea: a pet reporting condition, a field interrogation condition, and a gang attire condition. As described below, Court affirm the judgment with directions to strike the reference to pets in probation condition No. 7.

On May 11, 2006, pursuant to Penal Code section 859a, defendant, represented by counsel, pled guilty to a violation of section 245, subdivision (a) (count two) and admitted the special allegation filed pursuant to section 12022.7, subdivision (a), as charged in the amended complaint filed by the District Attorney of San Bernardino County. Pursuant to the negotiated disposition, defendant was committed to state prison for 7 years less custody credits and the remaining count and special allegations were dismissed and stricken on motion of the People and in the interests of justice pursuant to section 1385. Court have now concluded our independent review of the record and find no arguable issues.

Defendant pled guilty to one count of use of an access card with intent to defraud. (Pen. Code, 484g.)[1] The trial court granted defendant formal probation for a period of five years, a condition of which required defendant to pay restitution in an amount later to be determined. Defendant contends, and the People concede, that the trial court erred in extending her probation beyond the maximum permissible term due to defendants inability to pay the restitution in its entirety. Court agree and, therefore, reverse the order extending defendants probation for an additional year.

A new Welfare & Institutions Code section 602 petition issued on March 15, 2006, alleged in count one that the minor, Anthony G., committed a felony violation of Health and Safety Code section 11370.1 (possession of a controlled substance with a firearm). Count one also contained an allegation that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1). Count two alleged a felony violation of Penal Code section 12101, subdivision (a)(1) (minor in unlawful possession of a firearm). Count two also contained a gang enhancement allegation charged pursuant to Penal Code section 186.22, subdivision (b)(1).
On March 30, 2006, the minor admitted the allegation in count one. The gang enhancement allegation for this count was stricken. Count two and the special gang enhancement allegations were also dismissed and stricken. After contested disposition hearings, the juvenile court formally declared the minor a ward of the juvenile court. The court also found that count one was gang-related and that the minor must therefore register as a gang offender pursuant to Penal Code sections 186.30 and 186.32. The judgment is affirmed.

M.M. appeals from an order terminating his parental rights to his toddler-age daughter, Faith M. He argues that the Department of Public Social Services (the Department) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1912(a)). The Department concedes that, for this reason, reversal is required.
M.M., however, also argues that we must reverse not only as to Faith, but also as to her two half sisters daughters of the same mother but a different father. Moreover, both M.M. and Faith have asked us to take additional evidence on appeal, arguing that, in light of this additional evidence, we should direct the juvenile court to hold a new hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).
Court reject both of these additional contentions. Rather, Court conclude that, as in the usual case of an ICWA notice violation, the appropriate appellate remedy is a conditional reversal and a limited remand, solely as to Faith.

Petitioner Selena G. (mother) is the mother of seven children (the children), born between 1990 and 2005. In her petition for extraordinary writ, she challenges the juvenile courts decision to terminate reunification services and set a Welfare and Institutions Code section 366.26[1]hearing to determine a permanent plan for the children because: 1) the Department of Public Social Services (DPSS) failed to comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; hereafter ICWA) and California Rules of Court, rule 5.664, as to the youngest child, J.M.; and 2) substantial evidence does not support the true finding on the section 387 supplemental petition for a more restrictive placement, which resulted in the children being taken back into foster care just one month after the last three children had been returned to mothers custody. Further, if this court affirms the finding on the section 387 petition, mother contends that the children should be returned to her care on family maintenance. The petition is granted as to J.M. on the ICWA notice issue. The writ petition is otherwise denied.

A modification decision.

Phillip O. appeals from a restitution order requiring him to pay $97,100 to burglary victims following his admission that he committed burglary and other offenses alleged in a petition under Welfare and Institutions section 602. Minor contends that the restitution determination lacks substantial evidence. He alternatively argues that the restitution hearing was fundamentally unfair because the court prevented his counsel from fully questioning the victims regarding their claimed economic loss. Court affirm.

Defendant appeals the revocation of his probation and execution of a suspended 16 year prison sentence. Raposas claims challenging the validity of his admission of a probation violation must be dismissed because he failed to obtain a certificate of probable cause. Court reject Raposas further challenges to the courts decision to revoke probation and execute the suspended sentence. The judgment is affirmed.