CA Unpub Decisions

One year old D.T. and her alleged father David T. appeal from a juvenile court order entered in dependency proceedings denying Davids request to be declared D.s presumed father. They contend David signed a voluntary declaration of paternity under Family Code section 7570 et seq., which as a matter of law entitled David to be declared D.s presumed father. In addition, David contends that under section 7611, subdivision (d), he should have been declared a presumed father because he received D. into his home and held her out as his natural child. Court conclude substantial evidence supports the courts finding that David did not meet his burden under section 7611, subdivision (d), but that David presented a prima facie case that he is D.s presumed father based on signing a declaration of paternity at the time of D.s birth. Nonetheless, the latter issue was not fully developed below and require a remand for final determination.

Bharat Magan Patel appeals from a judgment following his admission of a probation violation. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (Nov. 27, 2006, S133114)Cal.4th [2006 Cal. Lexis 15095]; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Upon independent review of the record, Court conclude that no arguable issues are presented for review, and affirm the judgment.

The juvenile court sustained the allegations in the petition under Welfare and Institutions Code section 602 that defendant assaulted a person and unlawfully took money and personal property from a person after defendant pleaded no contest to these counts. Defendant appeals from the courts disposition order. He contends the juvenile court abused its discretion in committing him to the county juvenile rehabilitation facility and it imposed an unconstitutional term of probation on him when it stated he shall have [n]o gang associations, colors, clothing, insignias, signs, paraphernalia or activities. Court agree that the gang condition of probation is unconstitutionally overbroad and vague and we therefore modify it, but Court otherwise affirm the disposition order.

The mother of infant Savannah T. (Mother) appeals from an order under Welfare and Institutions Code section 361 removing Savannah from her care. Mother contends that the order must be reversed because: (1) it was not supported by clear and convincing evidence, and (2) the respondent Contra Costa County Bureau of Children and Family Services (Bureau) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court affirm the order and associated findings.

In October 2006 this court issued its opinion (1) directing the Humboldt County Juvenile Court to vacate its July 2006 order terminating the reunification period and setting a Welfare and Institutions Code[1]section 366.26 hearing for Michael H. and (2) remanding the matter to the juvenile court for the limited purpose of determining whether conditions for permitting a bypass of reunification services existed at the time of the hearing. (Dan C. v. Superior Court (Oct. 16, 2006, A114694 [nonpub. opn.] (Dan C. I).) Following the hearing on remand, the court determined that a bypass of reunification services was warranted and set a contested hearing under section 366.26 for May 7, 2007. Petitioner Dan C. has again filed a petition challenging the order on remand. Court deny the petition on the merits.

Defendant and appellant Ricardo Ramirez appeals from the judgment entered following his conviction of multiple counts of sexual abuse of a minor under the age of 14 years. He contends the trial court erred in sentencing him pursuant to Penal Code section 667.61. Court affirm.

Appellants challenge their convictions on numerous grounds. We conclude that insufficient evidence supported the felony murder special circumstance findings against each appellant and the trial court erred by permitting a midtrial amendment of the information with respect to Smith. Court reject, however, appellants instructional error and sentencing claims.

Defendant appeals from a judgment of conviction entered after a jury trial. He was convicted on 10 counts and sentenced to a total term of 114 years to life. On appeal, he challenges only the sentence imposed, which we discuss in detail below. Court agree in part with defendants challenges and therefore reverse the sentence and remand for resentencing.

Defendant appeals from the judgment after a jury convicted him of sale of a controlled substance (Health & Saf. Code, 11379, subd. (a)), conspiracy (Pen. Code, 182, subd. (a)(1)), and two counts of assault with a deadly weapon ( 245, subd. (a)(2) with special findings that he personally used a firearm ( 12022.5, subd. (a)(1)). The trial court suspended imposition of sentence and granted probation.
Appellant contends, among other things, that the trial court erred in failing to instruct that pointing a firearm at a person for the sole purpose of intimidation is not an assault. Court affirm and conclude there was no instructional error. (People v. Williams (2001) 26 Cal.4th 779, 788-790.)

A dependency petition was filed after a child was injured in the home of his mother. During the course of dependency proceedings, the noncustodial father sought custody of the child by filing Welfare and Institutions Code section 388 petitions. The father also sought a bonding study to evaluate his relationship with his child. The juvenile court summarily denied the fathers petitions seeking custody and denied his inclusion in the bonding study. From those denials, the father appeals and petitions for a writ of mandate.
Court conclude that, in the absence of a finding of detriment, the nonoffending fathers petitions requesting his childs custody were erroneously denied. In addition, the failure to include the father in the court ordered bonding study constituted an abuse of discretion.

Defendant appeals from a judgment of conviction in a three-phase jury trial. In the first phase, defendant was convicted of the first degree murder of Anton Douglas (Douglas) and Ryan Logan (Logan) in counts 1 and 2 (Penal Code 187, subd. (a)),[1]with a true finding on the allegation of special circumstance multiple murders ( 190.2, subd. (a)(3)), and possession of a firearm by a felon in count 3 ( 12021, subd. (a)(1)). As to counts 1 and 2, the jury further found true firearm-use allegations under section 12022.53, subdivisions (b) through (d).
In the second phase, as to counts 1 and 2, the jury found a special circumstance based on a prior 1978 first degree murder conviction ( 190.2, subd. (a)(2)) and found defendant had suffered two prior serious or violent felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
In the third phase, the penalty phase, the jury returned a verdict of life without possibility of parole. Defendant was sentenced to life in prison without possibility of parole plus 35 years to life.
On appeal, defendant contends that the trial court failed to excuse two jurors who were improperly influenced by extraneous information, and defendants counsel was ineffective in failing to object to the prosecutors alleged misconduct and testimony from a detective. Court disagree and affirm the judgment.

Alfred Caballero was convicted by jury of elder abuse (Pen. Code, 368, subd.(b)(1); count 1), assault with firearm ( 245, subd. (a)(2); count 2), and felon in possession of firearm ( 12021, subd. (a)(1); count 3). The jury also found that during the commission of the crimes in counts 1 and 2, appellant personally used a firearm ( 12022.5, subd. (a)(1)). He was sentenced to prison for a total term of seven years and eight months, consisting of the midterm of three years plus the four-year midterm on the use enhancement on count 1, and eight months, or one-third the midterm on count 3.
Appellant contends: (1) It was prejudicial error for the court to admit evidence that he fired a rifle five previous times to scare the victim; and (2) the evidence is insufficient to support his convictions for elder abuse (count 1) and assault with a firearm (count 2). Court find the contentions to be without merit and affirm the judgment.

D.G. and Carl S. appeal from an order denying D.G.s modification petition under Welfare and Institutions Code section 388 and terminating D.G.s and Carl S.s parental rights as to Patrick F. under section 366.26. Court affirm.

The owners of an apartment building were sued in 47 separate small claims cases for allegedly creating a nuisance and permitting tenants to inflict emotional and mental distress on the small claims plaintiffs. The owners sought a defense and indemnity from their business liability insurer, which denied the claim on the ground that the small claims plaintiffs had not alleged bodily injury or property damage within the meaning of the policy.
The owners retained an attorney at their own expense and settled most of the small claims cases. They then filed this action against the insurer, alleging breach of contract and breach of the covenant of good faith and fair dealing. Ten months into this litigation, the insurer admitted it had made a mistake in denying the claim. It paid defense costs with respect to all of the small claims cases and indemnity with respect to six of the settlements.
The trial court granted summary adjudication in favor of the insurer on the breach of contract cause of action, concluding that the owners had received all of the monetary benefits due under the policy for defense and indemnity. The breach of covenant claim was tried to the court, which found for the insurer, stating that the failure to provide a timely defense and indemnity was the result of a mistake, not deliberate unfairness.
Court conclude that summary adjudication was improperly granted because the insurer may not have paid the full amount owed for indemnity. And because summary adjudication on the contract claim was improper, the covenant claim must be retried so the trial court may consider all of the circumstances surrounding the delay in paying indemnity. The judgment is therefore reversed.