CA Unpub Decisions

Desiree H. (mother) appeals from an order denying her petition under Welfare and Institutions Code section 388 for an order granting reunification services with A. H., born in 2006, and further reunification services with C. M., born in 2002. Mother contends it was an abuse of discretion to deny a hearing on the petition. As the petition failed to make a prima facie showing warranting a hearing, the dependency court did not abuse its discretion in denying the petition without a hearing. Accordingly, Court affirm the order.

David James Boesman appeals from a judgment entered following his no contest plea to second degree robbery (Pen. Code, 211). Pursuant to his negotiated plea, the allegation that he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b) was dismissed. He was sentenced to the middle term of three years, execution of the sentence was suspended, and he was placed on formal probation for three years under certain terms and conditions. Included in the conditions of probation, he was ordered to serve 365 days in jail and given credit for 365 days served, to submit to drug and alcohol testing at the direction of the probation department and ordered not to consume alcoholic beverages. He appealed, challenging the imposition of drug and alcohol conditions as terms of his probation.
Court have examined the entire record and are satisfied that no arguable issues exist. In view of appellants history, imposition of conditions of probation that he abstain from alcohol and drugs and submit to drug and alcohol testing were reasonably related to his future criminality and within the sound discretion of the trial court. (See People v. Balestra (1999) 76 Cal.App.4th 57, 83-84; People v. Lent (1975) 15 Cal.3d 481, 486.) Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

Pursuant to a plea agreement, defendant pleaded guilty to discharge of a firearm with gross negligence (Pen. Code, 246.3) and assault with a deadly weapon by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)). In return, defendant was sentenced to 120 days in county jail and placed on probation for a period of three years on various terms and conditions. On appeal, defendant contends (1) the probation condition requiring him to submit to and cooperate in field interrogations infringes upon his Fifth Amendment constitutional privilege against self-incrimination and is unconstitutionally vague; (2) the probation condition requiring him to submit to a search and seizure of his person, residence, and/or property under his control at any time of the day or night by any law enforcement officer, with or without a search warrant and with or without cause, is unconstitutionally overbroad; and (3) the probation condition requiring him to keep the probation officer informed of whether he owns any pets is unconstitutionally overbroad. Court reject these contentions and affirm the judgment.

Sonia H., mother of Cassandra A. and Brianna A., was not present when the juvenile court terminated her parental rights pursuant to Welfare and Institutions Code section 366.26. On appeal she argues that the court committed reversible error in failing to sua sponteorder that she be transported to the hearing from the facility where, in lieu of serving a formal prison sentence, she was enrolled in the Alternative Sentencing Program. Court conclude that any error was harmless and affirm.

Defendant and appellant Reynaldo Moran pled guilty to inflicting corporal injury on a spouse/cohabitant (Pen. Code, 273.5, subd. (a))and was placed on three years probation. The trial court later found that he violated a term of his probation prohibiting him from possessing or consuming alcoholic beverages. The court revoked defendants probation and sentenced him to the upper term of four years in state prison. Defendants sole contention on appeal is that the sentence violates his Sixth Amendment right to trial by jury under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court disagree and affirm.

The Riverside County Department of Public Social Services (DPSS) filed a juvenile dependency petition on behalf of Michelle G. (age 13), Rebecca Z. (age 11), Victor Z. (age 10), Refugio L. (age 6), and Sherri G. (19 months). After a lengthy but unsuccessful reunification period, the juvenile court terminated reunification services and parental rights. Terri Z., the childrens mother (hereafter mother), and Anthony G., Sherris father (hereafter father), appeal the juvenile courts decisions. Mother and father argue that the juvenile court erred in denying their petitions under Welfare and Institutions Code section 388 and failing to apply the beneficial relationship under section 366.26, subdivision (c)(1)(A).
Court conclude that the juvenile court properly found that the children would not have benefited from continuing their relationship with their biological parents and that adoption was in the childrens best interests. Court affirm the courts findings and orders.

Defendant and appellant Keith T. (minor) contends that the juvenile court abused its discretion in committing him to the California Youth Authority (CYA). He also argues that the matter must be remanded to require the juvenile court to expressly declare on the record whether his offense was a felony or a misdemeanor, pursuant to Welfare and Institutions Code section 702. Court agree that the matter should be remanded for the court to comply with section 702. Otherwise, Court affirm the judgment.

Appellant, Esteban Martinez, appeals from an order re child custody and visitation filed on February 8, 2006. This order granted respondent, Sally Mayer, sole legal and physical custody of the parties minor child and denied appellant visitation pending further order of the court.
The order is affirmed.

Appellant, Richard Martin Boothe, pled guilty on March 21, 1995, to petty theft with a prior (count 1/Pen. Code, 666) and assault (count 2/ 245, subd. (a))[1]and admitted allegations that he had a prior conviction within the meaning of the three strikes law ( 667, subds. (b)-(i)). In exchange for his plea, the prosecutor dismissed one count of reckless driving (Veh. Code, 23103) and a prior prison term enhancement ( 667.5, subd. (b)) and agreed to recommend a two-year sentence on count 1, doubled to four years because of Boothes prior strike conviction, and time served on count 2. The court also released Boothe from custody on bail that day, on the condition that he return for sentencing on May 2, 1995. However, Boothe did not return to court until approximately 11 years later, when he voluntarily appeared in court with defense counsel and turned himself in on May 4, 2006. On that date, the court sentenced Boothe to a six-year term, the aggravated term of three years doubled to six years because of his prior strike conviction. At a hearing on May 12, 2006, the court determined that Boothe was entitled to 18 days of presentence custody credit and sentenced him to time served on his assault offense. On appeal, Boothe contends the court committed sentencing error. Court affirm the judgment of conviction and remand the matter for resentencing.[

Maria Agredano petitions this court for writ of review contending she was denied procedural due process because the Workers Compensation Appeals Board (WCAB) did not consider evidence of psychological injury in determining she was not entitled to continuing temporary disability for a hand injury. Agredano contends she was also denied due process, and the WCAB exceeded its authority under Labor Code section 5502, subdivision (b), because it determined her hand condition was permanent and stationary following an expedited hearing. Agredano further argues the WCABs order denying temporary disability was not based on substantial evidence. Court deny the petition.

The Orange County Department of Child Support Services (the Department) appeals from an order requiring Katherine W. and Eric S., and their daughter, Ashton S., to submit to genetic testing to establish paternity. The Department argues the trial court erroneously ordered genetic testing for the following reasons: (1) the order was in excess of its jurisdiction because there was a 1994 stipulation for judgment establishing paternity; and (2) Family Code section 7646 does not authorize genetic testing. Eric moved to dismiss the appeal arguing the Department has no standing to appeal, the Department appealed from a nonappealable order, and the appeal was untimely. As we explain below, Court deny Erics motion to dismiss the Departments appeal and reverse as premature the trial courts order requiring genetic testing.

Gerald V. Beck appeals from a judgment dismissing his complaint after the court sustained the demurrers of Barnet Resnick (Resnick) and Vogt & Resnick, LLP (the law firm) without leave to amend. Becks second amended complaint alleged he was a victim of age discrimination, wrongfully terminated by his fellow shareholders in JBZ, Inc. (JBZ), in violation of an employment contract. Beck named Resnick and the law firm based solely on their role as JBZs corporate counsel. Court affirm, concluding the trial court correctly decided Becks complaint did not pass muster and could not be amended to do so.

Daisy R. (mother) appeals from a postjudgment order under Welfare and Institutions Code section 366.26[1] terminating her parental rights to her 20-month-old daughter, Brandy R., and freeing the child for adoption. Mothers sole contention is that the trial court had no jurisdiction to hold the .26 hearing until issuance of the remittitur after our denial of mothers previous writ petition. (Daisy R. v. Superior Court (Sept. 1, 2006, G037130) [nonpub. opn.].) The petition pertained to orders at the six-month review hearing when the court scheduled the .26 hearing. ( 366.26; Cal. Rules of Court, rule 8.452, formerly rule 38.1.) For a factual and procedural history of the case, Court refer the parties to our opinion, referenced ante. In light of the very narrow issue before us, Court need not reiterate the material or discuss events leading up to the time of the .26 hearing. Court note that despite the vast array of supportive services provided to mother through the duration of two dependency proceedings, her cognitive limitations presented an insurmountable hurdle to her acquisition of parenting skills adequate to protect her child. Brandy, now nearly two years old, is transitioning for adoption by the caregivers who have provided a home for her since shortly after her birth. She has bonded with her four year old brother, Nathan, earlier adopted by the same family.

Defendant was convicted by jury trial of three counts of forcible sexual penetration (Pen. Code, 289, subd. (a)(1)), one count of forcible oral copulation (Pen. Code, 288a, subd. (c)(2)) and one count of misdemeanor trespassing (Pen. Code, 602.5). The trial court committed him to state prison for a term of 24 years. On appeal, his sole contention is that the trial court prejudicially erred in excluding evidence of one of the victims prior inconsistent statements. Court conclude that the error was not prejudicial and affirm the judgment.