CA Unpub Decisions

This case arises out of a business deal gone bad between plaintiff Jerry Brown and various defendants, including his former attorney and business partners. In a brief and succinct order, the trial court granted defendants petition to compel arbitration of Browns claims and their motion to stay proceedings pending completion of that arbitration. Apparently doubting the court could have meant what it said, Brown filed an ex parte application for clarification of the courts ruling. Thereafter, the court issued a further order, in which the court denied the petition to compel arbitration and motion to stay with respect to some of Browns claims. The court found the remaining claims had already been adjudicated in another case. On appeal, defendants contend the trial court erred in granting Browns ex parte application for clarification because it was nothing more than a thinly disguised motion to reconsider that was not based on any new law or facts, as required by Code of Civil Procedure section 1008. Court agree. Accordingly, court reverse the trial courts further order granting Browns ex parte application and remand the case for further proceedings.

Appellant, the father of T.D. and G.D. (the minors), appeals from orders of the juvenile court adjudging the minors dependent children of the court, removing the minors from parental custody, and denying appellant reunification services. (Welf. & Inst. Code, 360, subd. (d), 395.) Appellant makes several contentions of alleged reversible error, including a claim that the Department of Health and Human Services (DHHS) violated the notice provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901 et seq.). Agreeing with the ICWA claim only, court reverse and remand for proper notice.

A jury convicted defendant of second degree robbery and found true an allegation that he was personally armed with a deadly weapon during the robbery, purportedly within the meaning of Penal Code section 12022, subdivision (b). Defendant was sentenced to an aggregate prison term of four years and eight months (the middle term of three years for the robbery, a consecutive term of one year for the purported enhancement, and a consecutive term of eight months for a conviction in another proceeding. On appeal, defendant contends the enhancement imposed for being personally armed with a deadly weapon while committing the robbery must be reversed because there is no such enhancement. The People concede the error.
The purported section 12022, subdivision (b) enhancement is reversed, the sentences imposed for the purported enhancement and the robbery conviction are vacated, and the cause is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.

In this personal injury action, plaintiff Sweeli Han Murty contends the trial court improperly denied her motion for cost of proof sanctions against defendant Javier Sanchez Arroyo, Jr., after he stated in responses to requests for admissions (RFA's) that he lacked personal knowledge and thus could not admit or deny whether she complained of pain after the accident, was bruised or otherwise injured in the accident or reasonably incurred expenses to treat the injuries. Murty concedes Arroyo lacked personal knowledge, but she asserts he should have admitted the RFA's based on her discovery responses and the report of the defense medical expert, which was rendered after he responded to the RFA's. Court find no abuse of discretion and affirm the order.

Kimberly A. appeals a judgment of the juvenile court terminating her parental rights to her minor daughter L.S. under Welfare and Institutions Code section 366.26. Kimberly contends: (1) the court and the San Diego County Health and Human Services Agency (Agency) did not comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.); (2) the court erred by summarily denying her section 388 modification petition; and (3) the evidence was insufficient to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. Court affirm the judgment.

Cheryl P. and Daniel P., Sr. (Daniel, Sr.), (together, the parents) appeal the judgment terminating their parental rights to their son, Daniel, Jr. Cheryl contends the juvenile court abused its discretion by denying her Welfare and Institutions Code section 388 modification petition and by allowing the San Diego County Health and Human Services Agency (the Agency) to examine her counsel's consultant psychologist at trial. Court affirm.

B. L. appeals the findings and orders entered at the termination of parental rights hearing held pursuant to Welfare and Institutions Code section 366.26, including the denial of her section 388 petition. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) Court therefore deny her requests to review the record for error and to address her Anders issues. (Anders v. California (1967) 386 U.S. 738.)
B. L.'s counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied. The appeal is dismissed.

Appellant and defendant Thomas Michael Lawyer pled guilty to one count of vandalism with over $400 in damage. The court granted probation. On appeal, defendant argues that one of the terms of probation is invalid. Court affirm.

A jury convicted defendant and appellant Shirley Marie Pope of one count of possession of cocaine base for sale. (Health & Saf. Code, 11351.5, count 1.) The trial court found true the enhancement allegations that defendant had two prior narcotics convictions within the meaning of Health and Safety Code section 11370.2, and that she had served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The court sentenced defendant to four years on the substantive offense, two consecutive three year terms on the prior narcotics convictions, and four consecutive one year terms on the prison priors, for a total term of 14 years in state prison.
On appeal, defendant contends that: 1) the trial court abused its discretion under Evidence Code section 352 by admitting evidence of a prior drug conviction; 2) the court erred in failing to strike a police officers opinion testimony that went to an ultimate fact that the jury was supposed to decide; and 3) the court abused its discretion in declining to strike one of the prior narcotics enhancements. Court affirm.

The Riverside County District Attorney filed a Welfare and Institutions Code section 602petition alleging that defendant and appellant Eddie S. (minor) committed a robbery. (Pen. Code, 211.) A juvenile court found true the allegation and placed minor on probation. On appeal, minor contends that the juvenile court used an improper legal standard (its own personal experience) when assessing the reliability of the victims cross racial identification, and that there was insufficient evidence to support the courts true finding. Court affirm the judgment.

On November 9, 2004, defendant, represented by counsel, pled guilty to the Penal Code section 666 charges and admitted that he violated probation in five misdemeanor matters pursuant to a plea bargain (Pen. Code, 1385). Defendant was placed on a formal grant of probation for a period of three years on condition he spend 60 days in the local jail.
Thereafter, on October 17, 2005, defendant was charged in case No. SWF013826 with infliction of unjustifiable physical pain and mental suffering on a child (Pen. Code, 273a, subd. (a), count one) and the infliction of cruel and inhuman corporal punishment and injury on a child (Pen. Code, 273d, subd. (a), count two). The complaint further charged that defendant had violated the terms and conditions of his grant of probation in case No. SWF009670. Thereafter, defendant was arraigned on the allegation of probation violation on November 23, 2005.
Court have now concluded our independent review of the record and find no arguable issues.

An information charged defendant with forcible lewd act on a child under age 14 (Pen. Code, 288, subd. (b)(1)) together with a great bodily injury allegation ( 12022.8) in count 1, forcible rape of a child under age 14 ( 261, subd. (a)(2), 269, subd. (a)(1)) in count 2, and a lewd act on a child under age 14 ( 288, subd. (a)) in count 3. Under a written plea agreement, defendant pled guilty to counts 1 and 3 in exchange for a stipulated prison term of 8 years and the dismissal of count 2 and the great bodily injury allegation to count 1. The trial court sentenced defendant to a total prison term of 8 years, consisting of 6 years for count 1 and a consecutive 2 years for count 3.
Court have conducted an independent review of the record and find no arguable issues.

Defendant and appellant Juan Ceballos Gonzalez pled guilty to false impersonation. (Pen. Code, 529.) He then moved to withdraw his plea. On appeal, defendant contends the trial court abused its discretion in denying his motion to withdraw his guilty plea. Court affirm.

Appellant (father) appeals from a Welfare and Institutions Code section 366.26 order terminating parental rights to his children, G.J.C. (born in April 2000), G.D.C. (born in March 2002), and H.C. (born in March 2004) (the children). On appeal, father argues that: 1) the court abused its discretion in denying his section 388 petition; 2) the adoption assessment report was incomplete; thus, the court abused its discretion in denying his request for a continuance for a more thorough adoption assessment to be done; 3) the court erred in finding that the children were adoptable; and 4) the beneficial parental relationship exception ( 366.26, subd. (c)(1)(A)) applied. Court disagree and affirm the order.