CA Unpub Decisions

Mother of 10 month old infant appeals from the juvenile court's order terminating her parental rights to Juan under Welfare and Institutions Code section 366.26. Mother contends that the juvenile court's order setting the section 366.26 hearing 56 days after reunification services were denied rather than the 120 days allowed under section 361.5, subdivision (f), effectively prevented her from filing a section 388 petition showing changed circumstances to justify reunification services, thereby violating her due process rights under the United States and California Constitutions. Mother also contends that the Los Angeles County Department of Children and Family Services (Department) failed to comply fully with the notice requirements of the Indian Child Welfare Act (ICWA or Act). (25 U.S.C. S 1901, et seq.) Court deny mother's challenge on due process grounds to the termination of her parental rights. The Department concedes that it did not fully comply with the Act's notice provisions. Because the Department did not comply fully with those provisions, Court reverse the order terminating mother's parental rights and remand this case with directions to the juvenile court to order full compliance.

Plaintiff, an attorney appearing in propria persona, appeals from the judgment and the order granting defendant's motion to strike his complaint pursuant to Code of Civil Procedure section 425.16, commonly referred to as the anti SLAPP (Strategic Lawsuit Against Public Participation) statute. Defendant also appeals from the judgment granting defendant attorney fees.
Appellant raises eight issues on appeal that fall into two categories, those that challenge the order granting the anti-SLAPP motion and those that challenge the judgment and award of attorney fees.
After filing a respondent's brief, defendant filed a motion to dismiss the appeal as untimely except as to the order denying appellant's motion to set aside the judgment (Code Civ. Proc., S 473) and the order granting defendant's motion for attorney fees. She argues the former order is frivolous and the later order lacks any analysis or citation of authority. Defendant requests sanctions under California Rules of Court, rule 8.276(e) (hereafter rule) in the amount of $ 9,060.97 to compensate her for her attorney fees and costs and additional sanctions to compensate the court for its costs and time.
Court find the appeal from the order granting the anti-SLAPP motion was not timely filed and shall grant Defendant's motion and dismiss the appeal. Accordingly, Court find Appellant's challenge to the ruling on the demurrer is moot. Last, although there was a timely appeal from the judgment awarding attorney fees, Court find no error in the award. Court therefore affirm the judgment.

A jury found defendant guilty of repeatedly molesting his daughter from the time she was four and of raping his girlfriend and ordering her to forcibly orally copulate him when she walked in on the last attempted molest. The court sentenced him to 338 years to life in state prison.
On appeal, defendant contends the trial court erred in: (1) admitting evidence of his purported prior acts of domestic violence; (2) instructing the jury on how to use the prior acts of domestic violence; (3) admitting evidence of child sexual abuse accommodation syndrome; (4) denying his request for appointment of counsel to assist him in filing a motion for new trial; and (5) imposing multiple five-year enhancements to his nine indeterminate life terms based on a single prior serious felony conviction. Finding no prejudicial error, Court affirm the judgment.

Defendant appeals from the judgment entered following a court trial that resulted in his conviction in case No. 04F7742 for possession of methamphetamine (Health & Saf. Code, S 11377, subd. (a)) and in case No. 05F4196 for failing to appear (Pen. Code, S 1320, subd. (b)). The trial court also found true the allegation contained in both cases that defendant had suffered a 1975 "strike" conviction for robbery (Pen. Code, S 211) and sentenced defendant to a prison term of seven years four months.
Defendant contends, and the People concede, that his sentence, enhanced based upon the prior conviction, is invalid. Court agree and remand for further proceedings.

In May 2005, an original petition was filed alleging that minor was within the provisions of Welfare and Institutions Code section 602 in that he committed misdemeanor battery upon a school employee. (Pen. Code, S 243.6.) In October 2005, a subsequent petition was filed alleging that he committed misdemeanor battery upon 16 year old minor. (Pen. Code, S 242.) In December 2005, the minor admitted the allegation of the subsequent petition, and the original petition was dismissed in the interest of justice. The minor was placed on probation for nine months. He was ordered to pay restitution to minor in an amount to be determined later.
On appeal, the minor contends the award of restitution for lost wages was an abuse of discretion because the parents were not subpoenaed to court and did not testify. Court affirm the judgment.

On his original and supplemental petition for writ of habeas corpus Defendant contends that his trial counsel rendered constitutionally ineffective assistance of counsel by (1) failing to request accident and self-defense instructions to be given specifically as to the robbery count and its enhancements; and (2) by failing to request an instruction on theft as a lesser included offense to the robbery count, and by acquiescing in the court's statement that neither counsel desired such an instruction as there was no evidence to support such an offense. In his second supplemental petition for writ of habeas corpus he asserts that the court's imposition of the 10-year enhancement for his personal use of a firearm in committing first degree robbery is disproportionate and constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. The petitions are denied.

In this case we reverse an order changing custody of the parties' eight year old son. The undisputed record shows minor is extremely apprehensive about being in respondent's presence and exhibits angry, aggressive and sometimes dangerous behavior when compelled to attend counseling sessions with her. Moreover, no expert has offered any opinion which would support the conclusion that as opposed to joint therapy with respondent, the immediate transfer of custody to respondent could be accomplished without substantial risk to minor's mental and physical health. Given this record the trial court could not conclude the immediate transfer of custody was in minor's best interest.

Petitioner filed this petition for writ of mandate to challenge that order, asserting that (1) he met his low burden of proof necessary to require an in camera review of any relevant documents; (2) the court must assume his allegations true for the purpose of the motion; (3) he did not need corroborating evidence to substantiate his allegations; and (4) the declaration filed in support of the motion was internally consistent. Court grant the petition, with directions.

On appeal Defendant asserts (1) the court's expression of agreement with the prosecution's handling of the case, together with its questioning of a witness, amounted to judicial misconduct that violated his federal due process rights; (2) the admission of expert testimony on the "link" between rental cars and drugs constituted reversible error and violated his federal due process rights; and (3) the court's failure to declare a mistrial after the prosecutor identified Defendant's counsel as a public defender violated his federal constitutional right to counsel and due process. Court affirm.

The parents of minors seek extraordinary writ relief (Welf. & Inst. Code, S 366.26,subd. (l); Cal. Rules of Court, rule 8.452); they challenge the juvenile court order that terminated reunification services after 18 months and set a section 366.26 hearing. Parents contend there was insufficient evidence that returning the children to their custody would create a substantial risk of detriment to the children. Additionally, contends there was insufficient evidence that she did not make substantial progress with her case plan. They also contends the court erred when it did not relieve her trial counsel after counsel declared an irreparable breakdown in the attorney client relationship.
Court issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties waived oral argument. Court review the petitions on their merits and deny them.

A jury found defendant and guilty of rape (Pen. Code, S 261, subd. (a)(2)) and forcible sodomy (S 286, subd. (c)(2)). The court sentenced defendant to state prison for six years. On appeal, defendant contends: 1) the trial court erred in admitting the opinion of an expert witness who testified that the victim's injuries were consistent with a sexual assault; and 2) the court erred in admitting the expert witness's medical report. Court find no error and affirm.

A jury found defendant not guilty of possession of cocaine base for sale (Health & Saf. Code, S 11351.5) but guilty of the lesser included offense of simple possession of cocaine base S 11350, subd. (a)), and being under the influence of a controlled substance ( s 11550). Defendant filed a motion for sentencing pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). (Pen. Code, S 1210 et seq.) Although the jury did not find that the cocaine base was for sale, the trial court found that the cocaine base was for sale, and not for personal use. On that ground, the court ruled that defendant was ineligible for probation and treatment under Proposition 36, and instead sentenced her to four years in state prison.
On appeal, defendant contends that the trial court erred in denying her Proposition 36 probation, since she was eligible under the plain language of Penal Code section 1210.1, subdivision (a). The judgment is affirmed.

A jury found defendant guilty of attempted premeditated murder (Pen. Code, SS 664/187, subd. (a), count 1), two counts of assault with a firearm (S 245, subd. (b), counts 2 & 4), and one count of attempted murder (SS 664/187, subd. (a), count 3). The jury also found true various enhancement allegations. The trial court sentenced defendant to a determinate sentence of 37 years in state prison and an indeterminate sentence of life with the possibility of parole, plus a consecutive term of 25 years to life.
On appeal, defendant contends that the minute order and abstract of judgment erroneously indicate that the court imposed a determinate sentence of 62 years. Court agree and remand the matter to the trial court to make the appropriate corrections.

As part of a plea agreement defendant received a Proposition 36 (Prop. 36) drug treatment program in lieu of going to state prison. When he failed to complete the drug treatment program, the trial court sentenced him to four years in state prison. On appeal, defendant argues that (1) the trial court abused its discretion when it imposed a prison term without obtaining information in order to exercise its discretion; (2) the trial court violated his due process right by failing to hold a drug program termination hearing; and (3) he did not waive his due process claim. We conclude that defendant waived his right to a drug program termination hearing when he accepted the renegotiated plea bargain and affirm. Defendant requests that we take judicial notice under Evidence Code section 452 that defendant's trial counsel has retired. Defense counsel's retirement is not relevant to any issue in this appeal. Therefore, defendant"s request for judicial notice is denied.