CA Unpub Decisions

A.P. (mother) appeals from an order terminating her parental rights to her three children. The sole issue she raises is lack of compliance with the Indian Child Welfare Act of 1978, or ICWA (25 U.S.C. § 1901 et seq.), and with Welfare and Institutions Code section 224 et seq. We affirm.

Defendant and appellant David Mendoza is serving a second strike sentence of 13 years resulting from a domestic violence incident. He argues the matter should be remanded for resentencing because the trial court misunderstood its discretion to strike the prior conviction allegations. As discussed post, the court correctly described its limited discretion, given: the state of the law, the existence of the strike prior because of defendant’s choice to join a criminal street gang, defendant’s extensive criminal history, and his regular violations of both parole and probation.

A jury found defendant and appellant Steven Loia guilty of one count of first degree murder. (Pen. Code, § 187, subd. (a).) The jury also found true two separate enhancements under section 12022, subdivision (b)(1)—that defendant used a deadly or dangerous weapon (a knife and a baseball bat) in the commission of the crime. Defendant admitted that he had a prior serious felony conviction, within the meaning of section 667, subdivision (a), and sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). The court sentenced him to a total state prison term of 57 years to life, consisting of 25 years to life, doubled pursuant to the prior strike, plus a consecutive one year on each of the weapon enhancements, and five years on the prior serious felony conviction enhancement.
On appeal, defendant contends that the court improperly imposed terms for both of the weapon enhancements. We affirm.

A jury found defendant and appellant, Joseph Greene, guilty of nine sex offenses against his two stepdaughters, Doe 1, and her younger sister, Doe 2. In counts 1 through 4 the jury convicted defendant of raping Doe 1 by force (Pen. Code, § 261, subd. (a)(2)), in count 5 of attempting to rape Doe 1 (§§ 664, 261, subd. (a)(2)), and in count 6 of orally copulating Doe 1 by force (§ 288a, subd. (c)(2)(A)). These offenses occurred in early 2016 when Doe 1 was 21 years old.
In counts 7 and 8, the jury convicted defendant of the aggravated sexual assault of Doe 2, a child under age 14 and seven or more years younger than defendant, by forcibly orally copulating Doe 2, and by forcibly sexually penetrating Doe 2 (§§ 269, subd. (a)(5), 289; count 8). In count 9, the jury convicted defendant of committing a lewd act with Doe 2, a child under age 14. (§ 288, subd. (a).) These offenses occurred between February 2005 and February 2007 when Doe 2 was age nine or 10.

Kenneth Horvatinovich sued Wells Fargo Bank, N.A. (Wells Fargo), alleging a single cause of action for breach of contract after his home was foreclosed upon and sold at a trustee’s sale. Horvatinovich alleged Wells Fargo failed to apply excess mortgage payments to pay property taxes on his home, which resulted in the foreclosure. The trial court granted summary judgment for Wells Fargo, and Horvatinovich timely appealed from the judgment.
Other than recount the factual and procedural history and provide an incomplete statement of the standard of review, Horvatinovich’s opening brief does not articulate any reason why he believes the trial court erred by granting summary judgment or provide any cogent legal argument whatsoever to persuade this court that we should reverse the judgment.

Defendant and appellant Deandre Lamont Derritt appeals a postjudgment order denying his petition to vacate a two-year on-bail enhancement after the underlying prior felony conviction, a 2010 conviction for felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), was reduced to a misdemeanor pursuant to Proposition 47. (Pen. Code, § 1170.18, subds. (f) & (g).) In a previous nonpublished opinion, we affirmed the trial court’s order. (People v. Derritt (Aug. 26, 2016, E064152) [nonpub. opn.].) In this opinion, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Buycks (2018) 5 Ca1.5th 857 (Buycks). For the reasons stated post, we reverse the postjudgment order and remand with directions to strike the two-year on-bail enhancement and recalculate the aggregate sentence.

An information charged defendant Mautief Ryland Hamlett of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1), count 1); carrying a concealed weapon in a vehicle (§ 25400, subd. (a)(1), count 2); possession of body armor by a felon (§ 31360, subd. (a), count 3); and unlawful possession of tear gas (§ 22900, count 4). The information further alleged defendant had served four prior prison terms (§§ 667.5, subd. (b) & 668) and had suffered three prior strike convictions (§§ 667, subds. (b)-(i), 668, & 1170.12). As discussed post, counts 1, 2, and 4 involved a stop and search of defendant and his vehicle on August 18, 2016, whereas count 3 involved defendant's arrest and search of his person and vehicle on August 6, 2015.

This case raises constitutional challenges to Senate Bill No. 277, which repealed the personal belief exemption to California’s immunization requirements for children attending public and private educational and child care facilities. Plaintiffs are four parents and their children residing throughout California and a California nonprofit corporation, A Voice for Choice, Inc. Defendants are the California Department of Education, the California Department of Public Health and various state officials.

In a petition for rehearing, defendant has drawn our attention to recently passed legislation, Senate Bill No. 1391, which will be effective January 1, 2019. As amended by this bill, Welfare and Institutions Code section 707, subdivision (a) will no longer authorize minors who are younger than 16 at the time of an offense to be tried in adult criminal court, unless they are not apprehended before the end of juvenile court jurisdiction. Defendant argues that this amendment should be applied retroactively to him. By the time this matter has returned to the juvenile court and a transfer hearing has been scheduled, the amendment will most likely be operative. At the transfer hearing, the juvenile court shall consider the current state of the law in deciding whether it would have transferred defendant to a court of criminal jurisdiction on counts one through four.

On the evening of June 15, 2014, the victim’s wife, J.S., went into one of her foster daughter’s bedrooms and discovered the 16-year-old defendant in bed with her foster daughter, E.P. J.S. called out to the victim, who came into the room and began to press defendant for information such as who he was and where he lived. He also asked defendant if he wanted to be arrested and go to jail. J.S. left the room when the victim asked her to retrieve his handcuffs, and very soon thereafter, J.S. and E.P. heard several gunshots. Defendant fled. The victim, having sustained four gunshot wounds, two of which were lethal, died shortly after being transported to the hospital.

Defendant Donald Edward Heuer challenges the conditions of his mandatory supervision, contending a condition requiring him to waive confidentiality for all court ordered programs is unconstitutionally overbroad and violates his right to privacy and privilege against self-incrimination. In supplemental briefing, defendant also challenges a condition requiring him to take all prescribed medication unless otherwise ordered by probation and behavioral health, arguing it is unconstitutionally overbroad. We agree with defendant that the challenged conditions are constitutionally infirm. We will affirm the judgment but remand with directions to the trial court to modify the disputed conditions of mandatory supervision.

A jury convicted Freddy Sida of willful harm to a child, false imprisonment of a hostage, resisting a peace officer, and vandalism. The trial court found true enhancement allegations and sentenced defendant to 17 years in prison.
Defendant now contends (1) the trial court abused its discretion in allowing opinion testimony by a deputy sheriff that defendant used a child as a shield prior to his arrest, and (2) if his contention is forfeited, he received ineffective assistance of counsel.
We conclude defendant forfeited his contention by failing to object in the trial court, and he has not established ineffective assistance. We will affirm the judgment.

The sole issue in this dependency appeal is uncontested: The parties agree that the case must be remanded to the juvenile court for compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1901 et seq.). We remand the case for the Department of Children and Family Services (DCFS) to investigate the applicability of ICWA. After its investigation, DCFS shall notify the juvenile court of its action, and the juvenile court shall determine whether ICWA notice requirements have been satisfied and whether the children are Indian children. We affirm the challenged orders and remand with directions.

K.G. contends that Louis Bristol, a former employee of HRMA doing business as Holiday Inn Express Carpinteria (Holiday Inn), committed two acts of sexual abuse against her while he was working at Holiday Inn. K.G. sued the hotel for damages arising from the incidents.
The trial court granted summary judgment in Holiday Inn’s favor. It determined Bristol’s conduct was not foreseeable and, as a result, Holiday Inn owed no duty to prevent Bristol’s conduct or to protect K.G. from Bristol. We affirm.