CA Unpub Decisions

Mother appeals from an order of the juvenile dependency court terminating its jurisdiction over her son, Z. Mother argues that she was not provided with reasonable reunification services; the court should not have terminated jurisdiction because continuing supervision was necessary; and the courts visitation order was an abuse of discretion. Court affirm.

The minor, appeals from an October 10, 2006 Welfare and Institutions Code section 602 wardship order. The juvenile court sustained the allegations of a petition filed August 9, 2006, charging the minor with battery with injury on a peace officer, a felony. (Pen. Code, 243, subd. (c)(2).) In addition, the minor admitted the allegations of a petition filed December 28, 2005, charging her with petty theft, a misdemeanor. (Pen. Code, 484, subd. (a).) The minor was placed home on three years probation with six days of predisposition credit. The minor appealed and we appointed counsel to represent her. Court modify the predisposition credit and affirm the wardship order.

The District Attorney of Los Angeles County filed a petition alleging that defendant and appellant Andre M. (Andre) came within the provisions of Welfare and Institutions Code section 602 because he committed second degree robbery in violation of Penal Code section 211. The juvenile court found the allegation to be true, sustained the petition, and declared the offense to be a felony. The juvenile court placed Andre on home probation in the care custody and control of his parents under the supervision of the Probation Department for a five year maximum period of physical confinement. Among the terms and conditions of Andres probation is the condition that he is not to associate with anyone your parents disapprove of and that he is to stay away from places where users [of narcotics or controlled substances] congregate.
On appeal, Andre contends that the conditions of his probation that he is not to associate with persons his parents disprove of and he is to stay away from places where persons who use narcotics or controlled substances congregate are unconstitutionally vague and overbroad because they do not address knowing conduct. That is, the terms do not bar his knowing association with persons his parents disapprove of or require him to stay away from places where he knows persons who use narcotics or controlled substances congregate. These conditions, Andre contends, should be modified to include the element of knowledge. Court hold that the challenged terms are unconstitutionally vague and order the order declaring Andre to be a ward of the court modified to reflect that Andre is not to associate with persons he knows his parents disapprove of and is to stay away from places where he knows persons who use narcotics or controlled substances congregate.
Court requested the parties to file supplemental briefs addressing the issue of whether the trial court erred in setting a maximum period of confinement when it placed Andre in his parents custody. The parties agree that the trial court erred in setting a maximum period of confinement. Court order the five year maximum period of confinement struck from the order declaring Andre to be a ward of the court.

Defendant appeals from the order revoking and reinstating probation previously granted upon defendants negotiated pleas of guilty to two counts of burglary of a vehicle (Pen. Code, 459) and extending probation to November 22, 2009. The trial court also reinstated probation on the same terms and condition, but required defendant to spend 92 days in the county jail, with credit for time served.
Court have examined the entire record and are satisfied that defendants attorney has fully complied with her responsibilities and that no reasonably arguable issues exist. (Peoplev. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.

A jury convicted defendant of four counts of assault with a firearm upon a peace officer (Pen. Code, 245, subd. (d)(1) counts 1 through 4), unlawful taking of a vehicle (Veh. Code, 10851, subd. (a) count 5), receiving a stolen motor vehicle (Pen. Code, 496d, subd. (a) count 6), possession of a firearm by a convicted felon (Pen. Code, 12021, subd. (a) count 8), two counts of second degree robbery (Pen. Code, 211, 212.5, subd. (c) counts 10 & 12), and assault with a firearm (Pen. Code, 245, subd. (a)(2) count 11). The jury found true allegations that defendant discharged a firearm (Pen. Code, 12022.53, subd. (c)) on counts 1 through 4 and 10; personally used a firearm (Pen. Code, 12022.53, subd. (b)) on counts 1 through 4, 10, and 12; and personally used a firearm (Pen. Code, 12022.5) on count 11. Defendant was sentenced to state prison for 46 years eight months, with 376 days of custody credit and 56 days of conduct credit.
On appeal, defendant contends (1) his convictions for assaulting the peace officers are not supported by sufficient evidence of his present ability to inflict harm on them, (2) his count 12 robbery conviction is not supported by sufficient evidence of his identity as the robber, (3) his count 6 conviction of receiving a stolen vehicle must be reversed because he was convicted in count 5 of taking the same vehicle, and (4) he is entitled to two additional days of presentence custody credit. The Attorney General concedes the last two points. Court modify the presentence credits and remand for resentencing on count 5.

After the collapse of Enron Corporation, the Attorney General concluded wholesale energy companies, including Powerex Corporation, had engaged in schemes damaging California energy consumers. He sued Powerex, alleging violations of the Unfair Competition Law (Bus. & Prof. Code, 17200 et seq., UCL) and the California Commodity Law of 1990 (Corp. Code, 29500 et seq., CCL) seeking damages, penalties and injunctive relief.
The trial court sustained Powerexs demurrer without leave to amend on the ground the claims were barred by the Federal Power Act (16 U.S.C.A. 791 et seq., FPA) which grants the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over the wholesale energy market.
Several Ninth Circuit decisions arising out of the energy crisis have concluded that claims similar to the Attorney Generals are barred by the FPA, specifically by implied preemption (field and conflict preemption), and by the filed rate doctrine. Field preemption exists when a federal scheme is comprehensive, leaving no room for state regulation; conflict preemption exists when state regulation would conflict with federal regulation; the filed rate doctrine bars claims which assume rates different from a federal tariff. (See Public Utility v. Dynegy Power Marketing(9th Cir. 2004) 384 F.3d 756 (Snohomish); Public Util., Grays Harbor, WA v. Idacorp (9th Cir. 2004) 379 F.3d 641 (Grays Harbor); California ex rel. Lockyer v. Dynegy, Inc. (9th Cir. 2004) 375 F.3d 831 (Dynegy).)
Court conclude the filed rate doctrine bars all of the Attorney Generals monetary and injunctive claims. Further, no injunction is warranted because there is no threat that the misconduct will continue. Because the Attorney General does not explain how his complaint might be amended, Court affirm.

A modification decision.

Father and Silvia Q. appeal a judgment terminating their parental rights to their four minor children, Ruby Q., Briana Q., Roman R., and G.R. (the minors) under Welfare and Institutions Code section 366.26.[2] Silvia asserts the court erred by denying her section 388 petition for modification seeking to have the minors returned to her custody, or alternatively, further reunification services. In addition, Silvia and Father challenge the sufficiency of the evidence to support the court's findings that: (1) the minors were adoptable; and (2) the beneficial parent child relationship exception ( 366.26, subd. (c)(1)(A)) and the sibling relationship exception ( 366.26, subd. (c)(1)(E)) do not apply to preclude termination of parental rights. Court affirm the judgments.

This action involves a dispute of the buy-out price of the family home between former spouses, appellant Marco A. Fernandez (Marco) and respondent Tonya Fernandez (Tonya). Marco appeals from the trial courts order that ruled Tonya would have the option to exercise her first right of refusal of the purchase of the family home at $850,000. He makes several claims concerning the valuation of the home. Court not reach these issues because, for reasons that Court explain, the order of October 17, 2005, is nonappealable, and the record on appeal is inadequate for appellate review. Court therefore dismiss the appeal.

A jury found defendant and appellant James Garcia guilty of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1), count 1) and of possessing stolen property ( 496, subd. (a), count 4). The jury also found true the allegation that the crimes were committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(A).) Defendant admitted that he had a prior serious felony conviction, within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), as well as section 667, subdivision (a)(1). The trial court sentenced defendant to a total term in state prison of 14 years, including the upper term of three years on count 1, doubled to six years as a result of the prior strike conviction, plus three years for the gang enhancement, and a consecutive five years for the prior serious felony conviction. As to count 4, the court sentenced defendant to four years, plus three years for the gang enhancement; however, it stayed the sentence on count 4, pursuant to section 654. On appeal, defendant contends that his trial attorney provided ineffective assistance of counsel (IAC) by failing to object to an expert witnesss opinion that defendant possessed a stolen firearm with the specific intent to benefit a street gang. He thus claims that his conviction (although he does not specify which conviction) should be reversed. Defendant also filed a supplemental brief, contending that the court erred in imposing the upper term, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). Court disagree and affirm.

It has been said that good fences make good neighbors. This case, alas, involves bad fences as well as bad neighbors. Since 1996, Larry Wilson and his next door neighbor, Carole Autler, have been embroiled in more or less constant litigation regarding Wilsons easement across Autlers property. In this particular case, Wilson filed a petition for a harassment injunction against Autler (Code Civ. Proc., 527.6), alleging that her conduct of keeping a locked gate (or gates) across the easement constituted harassment. The trial court granted the petition and ordered Autler to provide the keys.
Autler appeals. She contends that the trial court erred because it:
1. Exceeded the subject matter [of] and the relief sought by the harassment petition. (Capitalization altered.)
2. Denied Autlers claim that Wilsons easement had been extinguished by prescription and, in particular, did so in the context of a harassment petition.
3. Enjoined conduct that served a legitimate purpose and that therefore did not constitute harassment.
court conclude that Autler has failed to demonstrate any reversible error. Accordingly, Court affirm.

Father appeals from the juvenile courts order terminating his parental rights to two year old Suzanne, seven-year-old S.B., and one-year-old M.B. pursuant to Welfare and Institutions Code section 366.26. On appeal, Father claims (1) the juvenile court abused its discretion in terminating his parental rights when he was precluded from asserting the exception to adoption found in section 366.26, subdivision (c)(1) due to the unconstitutional suspension of his visitation rights, and (2) the notice requirements for complying with the provisions of the Indian Child Welfare Act (the ICWA) (25 U.S.C. 1901 et seq.) were not satisfied, and therefore the court erred in finding that the ICWA did not apply. Court agree that the notice provisions of the ICWA were not adequately complied with and will remand the matter for that limited purpose. Court reject Fathers remaining contention.

Appellant (father) appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26 ) to his daughter, J.R., born in January 2005. Father contends there was improper notice under the Indian Child Welfare Act (ICWA). Father complains that ICWA notice was incomplete and the trial court failed to make any ICWA notice findings in the case. Father requests this court to reverse the order terminating his parental rights and remand the case for proper ICWA notice and a new section 366.26 hearing.
Because mother stated in her response to form JV 130 that she may have had American Indian ancestry, ICWA notice compliance was required as to mothers lineage. ICWA notice was incomplete due to nondisclosure of background information for J.R.s maternal grandparents and great grandparents. Court reverse the order terminating parental rights and remand for the limited purpose of allowing the DPSS to provide complete ICWA notice.

A jury convicted defendant and appellant Luis Rodriguez of being a prisoner in possession of a stabbing weapon. (Pen. Code, 4502, subd. (a).) In a bifurcated proceeding, defendant admitted that he had prior strike convictions for assault with intent to rape ( 220) and forcible rape ( 261, subd. (a)(2)), within the meaning of sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2)(A). The trial court sentenced him to 25 years to life in state prison.
On appeal, defendant contends that the court erred in denying his Wheeler/Batson[2]motion (hereinafter Wheeler motion). He also contends the abstract of judgment should be corrected to conform to the oral pronouncement of judgment. The People concede that the abstract of judgment should be corrected. Otherwise, the judgment is affirmed.