CA Unpub Decisions

In this appeal from a juvenile dependency action involving C.B. (Minor), D.S. challenges the denial of her request for presumed parent status. D.S. contends the juvenile court erred by failing to make an express finding regarding whether she qualified as a presumed parent for Minor, and by failing to weigh her claim against that of Minor’s presumed father, J.B. We conclude the court erred by proceeding directly to the question of detriment under Family Code section 7612, subdivision (c), before deciding whether D.S. was a presumed parent under section 7611, subdivision (d). However, the error was harmless. In addition, the court was not required to weigh D.S.’s claim against J.B.’s. Accordingly, we affirm the denial of D.S.’s request for presumed parent status.

Petitioner Margarita A. (mother), seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1)) terminating her reunification services and setting a section 366.26 hearing as to her now 22-month-old daughter, Lori. Mother contends the juvenile court’s decision to terminate her reunification services was unjust and she would like another chance to prove herself. Mother, however, does not assert that the juvenile court’s rulings were legal error. Consequently, we conclude her petition fails to comport with the procedural requirements of rule 8.452 and dismiss the petition.

Plaintiffs Amber and Thomas Martines seek reversal of an order granting a motion for judgment on the pleadings brought by defendants Wells Fargo Bank (Wells Fargo) and Fidelity National Title Company (Fidelity). Plaintiffs contend that the court abused its discretion by denying them an opportunity to amend their complaint. We disagree and therefore must affirm the judgment of dismissal.

Mother Valerie B. appeals from the juvenile court’s orders finding M.H. adoptable and terminating her parental rights to him pursuant to Welfare and Institutions Code section 366.26 on March 8, 2018. In mother’s related appeal in In re M.H., F076782, she contends the juvenile court abused its discretion in denying her section 388 petition to receive reunification services for M.H. In this appeal, mother contends that if we find error and reverse the juvenile court’s orders in the related appeal, we must also reverse this appeal, as well as vacate the juvenile court’s orders finding adoption as M.H.’s permanent plan and terminating mother’s parental rights. (See In re A.L. (2010) 190 Cal.App.4th 75, 80.) Because we affirm the juvenile court’s orders in case No. F076782, and because mother has raised no other issue on appeal, we affirm the juvenile court’s orders.

On February 1, 2016, a dependency petition was filed by the Madera County Department of Social Services (department) pursuant to Welfare and Institutions Code section 300 alleging Valerie B. (mother) placed her minor children at substantial risk of suffering physical harm due to her mental illness and drug abuse, causing mother to suffer delusions and making her incapable of properly caring for her children. The three minors who remained subject to the dependency are Reyna F., A.R., and M.H., who were, respectively, seven years old, four years old, and 18 months old when the petition was filed.

Appellant Gregory Smith challenges the court’s determination that his attempt to introduce a copy of a holographic will into probate of the estate of his mother, Helen Louise Smith, was untimely under Probate Code section 8226. Section 8226, subdivision (c)(1), requires the proponent of a will to petition for probate within 120 days of an order determining the decedent to be intestate. Here, Gregory filed a petition for probate of the holographic will over 11 months after the court determined Helen died intestate. Despite the late filing, Gregory appeals the court’s decision that the filing of the petition was untimely even assuming Gregory was entitled to the benefit of equitable tolling to extend the statute of limitations period. Upon review, we affirm the trial court’s determination that the petition for probate of Helen’s holographic will was untimely under section 8226.

Appellant Justin Anthony Banks shot a man to death, was convicted of murder, and received an aggregate prison sentence of 83 years to life. He now argues that the trial court violated his Sixth Amendment right to a public trial because, in response to concerns about disorderly behavior or potential disorderly behavior among spectators, the court began mid-trial to require spectators to show identification to the bailiff and place their names on a sign-in sheet before entering the courtroom.

Defendant/appellant Zachary Lee Mock was charged with entering a locked vehicle with the intent to commit a felony (count 1; Pen. Code, § 460, subd. (b); see also § 459) and misdemeanor vandalism (count 2; § 594, subd. (b)(2)(A).) The information also alleged three prior prison term enhancements (§ 667.5, subd. (b)).
A jury convicted defendant on both counts, and the court found the three prior prison term allegations true. On count 1, the court sentenced defendant to the upper term of three years, plus three years for the prior prison term enhancements. On count 2, the court sentenced defendant to 180 days in jail, stayed pursuant to section 654.

Appellant Ruben Tony Cervantes was convicted by jury trial of attempted deliberate and premeditated murder in which he personally used a firearm and other crimes arising out of an incident where he shot his pregnant girlfriend in the face. On appeal, he contends that the evidence was insufficient to support the jury’s finding of premeditation and deliberation. He also contends the matter should be remanded to allow the trial court to exercise its discretion whether to strike the firearm enhancement pursuant to Senate Bill No. 620. We agree that remand is appropriate for the limited purpose of giving the trial court discretion whether to strike the firearm enhancement. In all other respects, we affirm.

Defendant and appellant Andres Vazquez is serving an indeterminate term of 16 years to life after a jury convicted him in 2004 of discharging a firearm, assault with a firearm, and gang participation, with priors and enhancements. Defendant asks this court to remand his case to the trial court for resentencing after two letters in 2017 from the California Department of Corrections and Rehabilitation (CDCR) failed to achieve the necessary corrections to his sentence and record of conviction. The People agree, for the most part, so we remand to the trial court for resentencing.

Clifford Wayne Strong pleaded guilty to robbery (Pen. Code, § 211). In a separate proceeding, the trial court found true allegations he had a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667, subd. (b)–(i), 1170.12). The court sentenced him to nine years in prison.
Strong appeals. His appointed appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, 441–442, and Anders v. California (1967) 386 U.S. 738, 744, requesting we independently review the record for error. Strong filed a supplemental letter brief asserting the court erred in finding his prior out-of-state conviction qualified as a serious felony and a strike under California law. We conclude the court did not so err, and after independently reviewing the record as counsel requested, we identified no reasonably arguable appellate issues. We, therefore, affirm the judgment.

The juvenile court adjudged M.A. (Minor) a ward of the court (Welf. & Inst. Code, § 602) after finding true allegations Minor committed felony robbery (Pen. Code, § 211; count 1). The court committed Minor to participate in the Short Term Offender Program for a period not to exceed 90 days, after which he was ordered to be placed on home supervision for 30 days with probation conditions and to complete 40 hours of community service.

John Jay Roach entered into a plea agreement in which he pleaded guilty to one count of burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a)). Roach also admitted two serious felony prior convictions (§ 667, subd. (a)(1)) and one strike prior (§ 667, subds. (b)-(i)). The parties stipulated to a 14-year term in prison as part of the plea agreement.
Prior to sentencing Roach moved to withdraw his guilty plea. After trial counsel was removed following a Marsden hearing, new counsel was appointed and a motion to withdraw the plea was heard. Following three hearings on the motion, the court denied it. Thereafter a fourth hearing took place in which Roach represented himself. The court again denied the motion. The court sentenced Roach to a 14-year term as anticipated by the plea agreement.

APPEAL from an order, a judgment, and a postjudgment order of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Order and judgment affirmed in part, reversed in part, and remanded with directions. Postjudgment order affirmed in part, vacated in part, and remanded with directions.