CA Unpub Decisions

Appellant W. R., mother of the minor, appeals from the juvenile court’s orders terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant argues that the orders must be reversed and remanded because the Sacramento County Department of Child, Family and Adult Services (Department) did not comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). The Department conceded the ICWA error and the need for a limited remand for ICWA compliance. We agree.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions.

The People’s complaint charged defendant with being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 1), being a felon in possession of ammunition (§ 30305, subd. (a)(1); count 2), carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 3), and carrying a loaded firearm in public (§ 25850, subd. (a); count 4). The complaint further alleged as to all counts that defendant had previously suffered a serious felony conviction (§§ 667, subd. (d), 1170.12, subd. (b)), to wit, his conviction for robbery (§ 211) in 2007.
On November 9, 2020, defendant filed a motion to suppress (§ 1538.5) all evidence incident to the traffic stop, his detention, and warrantless search of his vehicle, which was heard contemporaneously with the preliminary hearing. Testimony elicited at that hearing established that a witness called 911 and reported seeing a driver waiving and pointing a handgun at another driver.

The underlying facts of the case are not relevant; it suffices to say that petitioner inserted his finger into the vagina of the female victim. At the time of the offense, petitioner was 43 years old, and the victim was 15 years old.
A complaint charged petitioner with one count of rape by force or fear (§ 261, subd. (a)(2); count 1), and one count of lewd acts upon a 14- or 15-year-old-child, with the intent of arousing, appealing to, and gratifying the lust, passions and sexual desires of petitioner and the child (§ 288, subd. (c); count 2). On November 14, 2011, petitioner pleaded guilty to count 2, and count 1 was dismissed. Under the Sex Offender Registration Act, petitioner was required to register as a sex offender for life in light of his conviction.

In 1993, a six-count information was filed against Stuckey, charging him with three counts of committing a lewd and lascivious act upon a 14- or 15-year-old child in violation of section 288, subdivision (c) (now (c)(1), as noted ante), and three counts of unlawful sexual intercourse with a person under the age of 18 years in violation of section 261.5. The conduct giving rise to these charges occurred in early 1993 and involved the same victim, a 15-year-old girl. Stuckey, who was 26 years old at the time of the alleged offenses, pleaded no contest to a single count of violating section 288, subdivision (c)(1) and the remaining counts were dismissed. Stuckey’s conviction resulted in a one-year sentence and mandatory lifetime sex offender registration under former section 290.
After Senate Bill No. 384 went into effect in January 2021, Stuckey filed a petition for writ of mandate, challenging the validity of the tiered sex offender registration law on equal protection grounds.

Although the Menkens’ motion is directed solely at Callanan’s cross-complaint, there are actually three separate complaints in this case: (1) a complaint filed by Riccardo Marino against the Menkens; (2) a cross-complaint filed by the Menkens against Marino and Callanan; and (3) a cross-complaint filed by Callanan against the Menkens. Marino’s complaint is not at issue here, and he is not a party to this appeal. We thus summarize only the Menkens’ cross-complaint against Callanan and Callanan’s cross-complaint against the Menkens.
The Menkens’ Cross-complaint
As noted, the Menkens filed a cross-complaint against Marino and Callanan. According to the allegations in the Menkens’ cross-complaint, the relevant facts are as follows.
The Menkens are “engaged in the research and development of various cannabis based products intended for marketing in the burgeoning cannabis market space.”

On May 1, 2019, 93-year-old Victor S. woke up to find someone had entered his home and took several items, including a leather jacket. An opened can of beer was left behind and one of his frozen dinners had been partially eaten. The screen door in the back of the home had its plexiglass broken and the wire mesh ripped. Defendant’s DNA was found on the lip of a beer can and on a fork in the home.
Evidence of two other incidents was admitted as uncharged misconduct. On July 29, 2017, defendant broke into a church, breaking a door and damaging a vent. Defendant took camera equipment and other items from the church. He told the Sacramento police he was homeless and broke in and took the items so he could sell them. He was convicted of second degree burglary as a result of this incident. Evidence of the incident leading to defendant’s first degree burglary conviction in case No. 19FE009012 was admitted as the second uncharged misconduct incident.

In 2010, defendant was stopped for a traffic violation and law enforcement officers found about 200 grams of cannabis, a digital scale, empty baggies, cell phones, $580 in cash, and other items in defendant’s car. (People v. Singh (Feb. 10, 2016, C077348) [nonpub. opn.].) A jury found defendant guilty of possession of cannabis for sale (Health & Saf. Code, § 11359) and transportation of more than 28.5 grams of cannabis (Health & Saf. Code, § 11360, subd. (a)). (People v. Singh.) On September 8, 2014, defendant was sentenced to one year in prison. (Ibid.) Defendant appealed, and we affirmed his convictions. (Ibid.)
On May 15, 2020, defendant filed a motion to vacate his conviction under section 1473.7. Defendant’s motion was supported by two declarations. The first was his declaration, which stated he is a legal permanent resident living in the country since he was 13 years old, and his wife, children, and parents are United States citizens.

On February 27, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. The People filed a response and moved the trial court to dismiss the petition. Defendant then filed her reply. After quoting extensively from this court’s prior opinion affirming defendant’s conviction, the court denied defendant’s petition without issuing an order to show cause.
In reaching its decision, the trial court found that although the jury “was instructed on both direct aiding and abetting and the natural and probable consequences doctrine, there was sufficient evidence for a juror to have found defendant . . . guilt[y] based on an implied malice theory . . . . As this could have occurred, defendant . . . is not eligible to seek relief from her second degree murder conviction under Penal Code [section] 1170.95.”

On September 18, 2017, the Los Angeles County Department of Children and Family Services (Department) detained the children pursuant to a removal warrant and placed them with maternal grandmother.
On November 9, 2017, the Department filed a first amended dependency petition pursuant to section 300, subdivision (b)(1), which alleged that mother’s medical and emotional problems and history of substance abuse placed the children at risk of serious physical harm.
On May 21, 2018, the juvenile court sustained the petition, removed the children from mother’s custody, and granted mother family reunification services.

B. Six-Month Review Hearing

In a status review report filed on October 29, 2018, the Department described the children as being bonded to maternal grandmother, who provided for the children’s educational needs, health care, and emotional well-being. The children were also bonded to mother, who assisted with the children’s care when she visited them.

On August 3, 1987, the People filed a felony complaint alleging that Young committed second degree robbery, in violation of section 211. According to the probation officer’s report concerning this offense, Young shoved the victim, grabbed her purse, and fled the scene. The report further claims that the value of the property Young took was approximately $200. On September 2, 1987, Young pleaded guilty to one count of grand theft, in violation of former section 487, subdivision 2. The trial court sentenced Young to the middle term of two years in state prison for this offense.
On May 7, 2021, Young filed an application under section 1170.18, wherein he sought an order designating his 1987 grand theft conviction as a misdemeanor pursuant to Proposition 47. On the application form, Young checked a box adjacent to the statement “[t]he amount in question is not more than $950.”

We take judicial notice of our prior decisions in defendant’s case, and draw background facts from those opinions.
Robinson I: People v. Robinson (June 2, 2004, B166845) (nonpub. opn.)
Defendant was convicted in 2003 of a murder committed in 1992, when he was 16 years old. Defendant was sentenced to life without the possibility of parole (LWOP) plus four years for the use of a firearm. In 2004 we affirmed the judgment.
Robinson II: People v. Robinson (Aug. 22, 2017, B264801) (nonpub. opn.)
In 2013, defendant petitioned for a writ of habeas corpus seeking resentencing under Miller v. Alabama (2012) 567 U.S. 460 (Miller). In Miller the United States Supreme Court held that a mandatory LWOP sentence imposed upon a juvenile offender violated the Eighth Amendment and that sentencing courts must have discretion to impose a lesser term based upon individualized factors relating to youth and its attendant characteristics.

In 1992, petitioner, Lifalfa Green, suffered convictions for the murder of Juan Nunez, the attempted murder of Jorge Nunez (Juan’s brother), and robbery (of Juan’s vehicle). With respect to the murder, the jury found true that Green personally used a firearm and found not true a robbery murder special circumstance. The jury also found the allegation that Green used a firearm true with respect to the attempted murder and found that the attempted murder was willful, deliberate, and premeditated based on an instruction requiring the jury to consider Green’s confederate’s mental state, not Green’s mental state.
In 2019, Green filed a petition for resentencing pursuant to Penal Code section 1170.95, which the resentencing court denied after holding a hearing at which no party presented new evidence. On appeal, Green challenges the sufficiency of the evidence to support his convictions for murder and attempted murder under current law.

Jovanni and his girlfriend, Vanessa R., were living with their children, J.F. and V.F., and Vanessa’s 13-year-old daughter (by another father), V.C., when in February 2021 the Department filed a section 300 petition alleging juvenile court jurisdiction over J.F. and V.F. In identical counts pleaded under section 300, subdivisions (a) and (b)(1), the Department alleged Jovanni and Vanessa had “a history of engaging in physical and verbal altercations in the presence of the children.” More specifically, the Department alleged: On one occasion, Vanessa pushed Jovanni in the presence of V.C.; on another occasion, Vanessa pulled Jovanni’s beard; on another occasion, Vanessa elbowed Jovanni in the mouth, bruising his lip; in V.C.’s presence Jovanni threatened to take the children from Vanessa; on multiple occasions law enforcement responded to Jovanni and Vanessa’s home because of altercations; and these physical and verbal altercations between Jovanni and Vanessa endangered the

The Firestone Tire & Rubber Company (Firestone) owned property in South Gate at the corner of Firestone Boulevard and Santa Fe Avenue, manufacturing tires there from 1928 to 1980. Firestone was ultimately succeeded by Bridgestone America’s Tire Company (Bridgestone).
Bridgestone sold the property to Hon Industries, Inc. (Hon) sometime after 1980, and it was eventually controlled by Iron Mountain, which leased the property to O’Brien in 1993.
In 1994, the California EPA, Department of Toxic Substances Control (EPA), issued an Imminent and Substantial Endangerment Order and Remediation Action for the Property regarding a plume of solvents entering the ground and groundwater. The EPA notified current and former owners, including Bridgestone, of the order, but after years of studies issued a No Further Action Letter in 2009, authorizing unrestricted use of the property.