CA Unpub Decisions

We take the facts from our prior decision. (People v. Frazier (Feb. 23, 2021, C082028) [nonpub. opn.] (Frazier).)
Defendant killed his heroin supplier. A postal carrier saw defendant, armed with a revolver, arguing with another person. The other person walked away and defendant followed. After the two men went between some buildings, the postal carrier heard gunshots and then saw defendant walk out. (Frazier, supra, C088702.) The victim was shot six times at close range, including once in the back. (Frazier, supra, C088702.)
Defendant later told a friend he killed someone. (Frazier, supra, C088702.)
Defendant lived at his parents’ home. His father discovered a revolver he kept at the house was missing. That gun was never found. (Frazier, supra,C088702.)
In a videotaped interview with the police played for the jury, defendant claimed acquaintances must have stolen his father’s gun.

In 2012, the Sacramento County District Attorney charged defendant, then a noncitizen resident of the United States, with one count of lewd and lascivious acts with a child under the age of 14 (§ 288, subd. (a)) and two counts of annoying or molesting a child under the age of 18 (§ 647.6, subd. (a)(1)). Defendant later admitted a factual basis existed for the section 288 count, acknowledging that the prosecution’s evidence would show that, in 2010, he “touch[ed] the breasts of . . . a child of the age of 13 years old” “with the intent to sexually gratify himself.”
Following the charges, defendant’s attorney attempted to negotiate a plea that would avoid adverse immigration consequences and limit defendant’s time in custody. To that end, after the prosecution offered “a bullet,” that is, a year, on the section 288 charge, defendant’s counsel countered with three alternatives, e-mailing: “1) Would you giv[e] 364 days instead of 365?

Defendant and his codefendants, Jimmy Broadnax and Mark Johnson, were charged with committing the murder of Raymond Raya with malice aforethought. It was alleged that in the commission of the offense, a principal personally and intentionally discharged a firearm and proximately caused death to a person not an accomplice within the meaning of section 12022.53, subdivision (e)(1), and that defendants committed the murder for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in the criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1).
Johnson pleaded no contest to voluntary manslaughter, admitted the firearm use and gang allegations, and agreed to testify truthfully at the trial, in exchange for a promised 25-year prison term. During the People’s case-in-chief, Broadnax entered a similar plea in exchange for a promised 20-year prison term.

Defendant and his codefendants, Jimmy Broadnax and Mark Johnson, were charged with committing the murder of Raymond Raya with malice aforethought. It was alleged that in the commission of the offense, a principal personally and intentionally discharged a firearm and proximately caused death to a person not an accomplice within the meaning of section 12022.53, subdivision (e)(1), and that defendants committed the murder for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in the criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1).
Johnson pleaded no contest to voluntary manslaughter, admitted the firearm use and gang allegations, and agreed to testify truthfully at the trial, in exchange for a promised 25-year prison term. During the People’s case-in-chief, Broadnax entered a similar plea in exchange for a promised 20-year prison term.

Father and Irene P. (mother) met in August 2016 and got married in July 2017. They used methamphetamine together regularly; as mother once put it, we “met high and got married high.”
M.P. was born in May 2019. At the time of M.P.’s birth, both mother and M.P. tested positive for amphetamines and methamphetamines.
II. Procedural Background
In June 2019, the Department filed a petition asking the juvenile court to exert dependency jurisdiction over M.P. (1) because M.P. tested positive for drugs at the time of his birth, and because of (2) mother’s history of drug abuse, including during her pregnancy with M.P. and (3) father’s history of drug abuse. Further alleging that the parents’ conduct placed M.P. at “substantial risk” of “serious physical harm,” the Department asserted that jurisdiction was appropriate under Welfare and Institutions Code section 300, subdivision (b).

We will limit the presentation of facts to those pertinent to the only disputed issue on appeal: Whether the failure of the Department of Children and Family Services (DCFS) to make inquiries under ICWA requires reversal.
In a prior dependency case in 2014, mother and father both submitted a signed ICWA 020 form in which they indicated they had no American Indian ancestry. The juvenile court found there was no reason to suspect A.E. was an Indian child as defined by ICWA, and therefore found the child did not fall within the provisions of ICWA. The court ordered the parents to keep the department, their attorney and the court aware of any new information relating to possible ICWA status.
On September 4, 2019, a tow-truck driver called in a referral to DCFS alleging mother was intoxicated in a vehicle with A.E. seated inside.

The first two qualifying offenses took place in close succession in September 1961 when Bortswick was 17 years old. Bortswick was convicted in Wayne County, Michigan of gross indecency, accosting a child for an immoral purpose and indecent liberties with a child. The victims were a nine-year-old female, Wanda, and her four-year-old brother, Eric, both strangers to Bortswick.
Wanda was playing outside with her siblings when Bortswick drove up and asked if she wanted to earn money counting homes on the block. Wanda agreed and got into the car. Bortswick drove into an alley and parked. He told Wanda to get into the back seat and to take off her clothes. Bortswick threatened if she did not comply, he would throw her clothes out the window. Bortswick unzipped his pants, pulled out his penis, placed Wanda’s hands on his penis and told her to play with it. Bortswick told her to sit on his lap, and he placed his penis between her legs.

Around 11 p.m. on March 23, 1990, having “spent the evening smoking marijuana and drinking with friends” defendant “proposed committing a ‘jack’ -- a robbery -- to get some money.” Defendant, along with one of his friends Tyrone Randall (Randall), armed themselves with .38 caliber revolvers, and followed by several of their associates, went in search of a victim. Defendant and Randall “approached the driver’s side of a pickup truck driven by the victim, Jose Valdes Cruz, and fatally shot him in the chest. The victim’s wallet, containing approximately $120 in cash, was taken and his money distributed among [defendant, Randall] and others at the scene.”
B. Charging, conviction and appeal
The People charged defendant with the first degree murder of Cruz (§ 187, subd. (a)) (count 1), and robbery (§ 211) (count 2).

On February 19, 2019, plaintiff filed a complaint against Amazon, Golden State FC LLC, and Roy Cripps asserting claims for violations of the Fair Employment and Housing Act, negligence, negligence per se, assault, and battery. Amazon answered the complaint in July 2019. Cripps was not served with the summons and complaint and did not appear in the action.
In July 2019, Amazon served plaintiff with discovery requests and a notice that Amazon would take plaintiff’s deposition on August 23, 2019. The documents were served by overnight mail to plaintiff’s address on Redondo Beach Boulevard.
On about August 5, 2019, plaintiff purportedly faxed a letter to Amazon’s counsel, Lindsay Holloman, which stated in pertinent part as follows:
“This is to inform you that I will not be available to respond to your propounded discovery request and or appear for any depositions and or production of documents in this matter. I have a family emergency that required me to leave town immediately.

In July 2013, Esquivel retained Weisberg to represent him in his divorce from Palomares. The engagement letter provided that Esquivel would pay Weisberg’s fees on an hourly basis and gave Weisberg a contractual lien on any recovery obtained by Esquivel in the case. In December 2014, Esquivel terminated Weisberg’s employment, and Weisberg filed and served a Notice of Charging Lien on Esquivel, Palomares and Jaurigue, asserting $11,698.36 in unpaid fees.

B. Jaurigue Distributes $10,000 to Esquivel
In February 2016, Jaurigue informed Weisberg it was holding approximately $147,000 in its client trust account from a community real property sale and it was aware of Weisberg’s lien. Jaurigue also told Weisberg that neither Esquivel nor Palomares had received proceeds from the sale.
In December 2016, the family court issued a statement of decision awarding $21,339.87 to Esquivel on breach of fiduciary duty claims against Palomares.

The Mexican Mafia is a predominantly Hispanic prison gang that exerts control over numerous street gangs whose members are currently incarcerated in Southern California’s prisons and jails. It follows a vertical organizational structure with a hierarchy and chain of command. The top or “brain” of the Mexican Mafia consists of about 140 individuals who are housed in high security prisons around the country. The “body” of the Mexican Mafia consists of gang members known as Sureños and Southsiders who are from various Hispanic gangs in Southern California that, once incarcerated, put aside any gang rivalries and pledge loyalty to the Mexican Mafia. Southsiders engage in a variety of tasks on the Mexican Mafia’s behalf, including collecting drug money, distributing narcotics, and participating in murders. Sureños are those Southsiders who are more dedicated to the Mexican Mafia and are willing to commit violence to enhance their reputation and to gain status within the hierar

Around 2008, Silva was hired as an office administrator at a small Pittsburg limited liability company that provided construction-related cleaning services. The company had three partners, and the managing partner worked in the office with Silva. In 2011, Silva was promoted to office manager and became a salaried employee, ultimately making $40,000 a year plus benefits.
As office manager, Silva routinely used QuickBooks, the company’s accounting software system. She was responsible for accounts payable and receivable and for keeping the checkbook balanced, and she used the program to print checks for a partner’s signature. She was not authorized to sign checks on behalf of the company or its partners.
One day in January 2017, the managing partner told Silva he was going to the bank.

In June 2019, Fuller filed a request for a domestic violence restraining order (DVRO) against Perez. She alleged the parties had a brief dating relationship that ended in May 2019. On June 1, 2019, Perez came to Fuller’s house unannounced and uninvited after she sent a text message indicating she no longer wanted to have a relationship with him. Fuller alleged that she told Perez she was uncomfortable with the situation, and told him she did not want to see him. Fuller indicated that she felt concerned for her safety because she lived in a remote location.
According to Fuller, Perez returned to Fuller’s home on June 15, 2019, without prior invitation or announcement. Fuller was not home, but her boyfriend, Michael Sanchez was there. Fuller later learned that Perez and Sanchez got into a “physical fight” that day. Fuller explained that the incident made her “very scared of [Perez] and concerned for [her] personal safety.” On June 17, Fuller sent Perez a text message stating

According to plaintiffs’ complaint, in July 2019 defendant posted two reviews on the Yelp consumer review website that contained false statements about them. Copies of the reviews as they appeared on Yelp were attached to the complaint. The later of the reviews is as follows (with italics indicating portions alleged to be false): “Edward Rustamzdeh [sic] neglects his patients as soon as he is done operating. He is non responsive, abusive, condescending and has zero bed side manner. When I was one month post surgery (an S1 to L5 fusion and decompression of the nerves), I began having sharp shooting pain down both my legs and in my lower back. It obviously scared me to death, and I called his office immediately. His medical assistant, Nicole, diagnosed me over the phone telling me I had sciatica and to see my primary care physician. I was shocked and said I wanted to see the doctor. She said, he didn’t want to see me.