CA Unpub Decisions

A.R. (Father) appeals from the juvenile court’s judgment terminating his parental rights to Jane Doe (Jane) and John Doe (John). Father argues we must conditionally reverse the court’s judgment because the Orange County Social Services Agency (SSA) and the court did not comply with the Indian Child Welfare Act (ICWA). SSA concedes the issue. We agree SSA and the court failed to adequately investigate Jane and John’s American Indian heritage. We conditionally affirm the court’s judgment terminating Father’s parental rights to Jane and John, and remand the matter to allow SSA and the juvenile court to fully comply with ICWA.

Appellant Trevor Dillon Smith was convicted by a jury of attempted second degree robbery (Pen. Code, §§ 664, 211(a), 212.5(c)). He was sentenced to state prison for the middle term of 2 years after the court dismissed an enhancement allegation alleging he had been on probation at the time of the offense.
Appellant filed an appeal, and we appointed counsel to represent him on that appeal. Counsel filed a brief which fully set out the facts of the case, which we have included below. Counsel did not argue against her client, but advised the court she could find no issues to argue on his behalf. Appellant was invited to express his own objections to the proceedings against him, but had already been paroled by the time the notice reached him. We contacted his attorney and Appellate Defenders Inc., but no one had an address for him.

Thien Hoang Nguyen stole a sports utility vehicle (SUV) and crashed into two cars while three young children were inside of the stolen vehicle. One child was in the front passenger seat; two children were in the backseat. The prosecution charged Nguyen with three counts of kidnapping during a carjacking, three counts of child abuse likely to produce great bodily harm, and related crimes. At trial, at the close of the prosecution’s case, Nguyen moved for a directed acquittal as to the counts involving the children in the backseat. (Pen. Code, § 1118.1.) The trial court denied the motion. The jury later convicted Nguyen of the charged and/or included offenses.
Nguyen is appealing from the denial of his motion for directed acquittals. Nguyen argues that the prosecution did not present substantial evidence that he was aware there were two children in the backseat. We disagree and affirm the judgment.

A jury convicted Mario Alberto Rodriguez of second degree murder in the stabbing death of 26-year-old Paul Anthony Garcia (Pen. Code, § 187, subd. (a); all further statutory references are to the Penal Code). The jury found true an allegation Rodriguez used a deadly weapon to commit murder, i.e., a knife (§ 12022, subd. (b)(1)).
The court found true allegations Rodriguez had a prior serious felony conviction for purposes of the “Three Strikes” law, and under sections 667, subdivision (a)(1) and 667.5, subdivision (b).
After denying Rodriguez’s request to strike his prior serious felony conviction for sentencing purposes (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 503 (Romero); § 1385, subd. (a)), the court imposed an indeterminate term of 30 years to life, plus a five-year determinate term for the prior serious felony (§ 667, subd. (a)(1)), and one year for the prior prison term (§ 667.5, subd. (b)).

Defendant Ronald Lloyd Aviles was charged with one count of felony hit and run with death. (Veh. Code, § 20001, subds. (a) & (b)(2).) The first trial resulted in a hung jury and the case was retried. The jury in the second trial found defendant guilty as charged. The court suspended imposition of sentence and placed defendant on probation for three years subject to certain conditions, including that he serve one year in county jail.

A local plastics manufacturer, Solus Industrial Innovations LLC (Solus), installed a residential electric water heater for use in its extrusion operations. In March 2009, the heater exploded, killing two workers. The state Division of Occupational Safety and Health (the Division) referred the case to the local district attorney’s office. The district attorney filed criminal charges against Solus’ plant manager and maintenance supervisor, and also filed a civil action against Solus itself. The civil action sought penalties for the unsafe operation of the water heater under two Labor Code statutes, sections 6428 and 6429, and also sought remedies for violation of California’s occupational safety standards under the state’s unfair competition law (UCL) (Bus. & Prof. Code, § 17200), and fair advertising law (FAL) (Bus. & Prof. Code, § 17500). Solus demurred to all four causes of action.

Defendant Angel Hernan Hernandez contends on appeal that the trial court erred in applying a five-year gang enhancement instead of a 15-year minimum term for parole eligibility. The People concede and we agree. Accordingly, we strike the former and impose the latter.

A jury found defendant and appellant Thomas Hunter guilty of driving or taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)). In a bifurcated proceeding, the trial court found that defendant had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), to wit, a 1980 robbery, and two prior prison terms (§ 667.5, subd. (b)), to wit, a 1988 robbery conviction and a 2010 criminal threat conviction. Defendant was sentenced to a total term of seven years in state prison with 256 days of credit for time served as follows: the upper term of three years, doubled to six years due to the prior strike for the vehicle theft conviction, plus one year for “one of the [] prior prison enhancements,” and a concurrent one year for the other prior prison term allegation.

Craya C. Caron filed a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) to challenge the decision of the California State Board of Pharmacy (the board) to cite and fine her for abandoning supervision of her pharmacy on September 1, 2012. On the board’s demurrer, the trial court dismissed the petition with prejudice because Caron had failed to exhaust administrative remedies before going to court. Caron appeals, contending her failure should be excused because she did not learn of the citation until after the period for seeking administrative remedies had expired. We affirm.

Plaintiff Jason Lamboy, a Correctional Lieutenant employed by the Department of Corrections and Rehabilitation (the Department), petitioned for administrative mandamus, seeking review of the California State Personnel Board's (the Board) decision disciplining him for violating the Department's use of force policy. The superior court denied his petition and affirmed the administrative decision. Lamboy contends (1) there was insufficient evidence to support the finding he violated the use of force policy; specifically, his conduct was justified as an immediate use of force, and thus it did not violate the controlled use of force protocol and (2) the penalty of a 10 percent pay cut for 24 months was excessive. We reject those contentions and affirm.

A jury convicted Zihan Zhang of three counts of grand theft of labor or money (Pen. Code, § 487, subd. (a)), two counts of refusing to pay wages (Lab. Code, § 216, subd. (a)), and four counts of failing to provide itemized statements to her employees (§§ 226, subd. (a), 226.6). Zhang was prosecuted after several of her former employees filed wage claims with the California Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE), which is overseen by the Labor Commissioner. At trial, the People introduced in evidence the Labor Commissioner's awards (awards) to two victims as well as the expert testimony of two DLSE deputy labor commissioners, who opined that Zhang had violated numerous wage and labor laws against the victims.

Appointed counsel for defendant Fermin Ramirez asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, we will modify the judgment to impose a $300 parole revocation restitution fine in case No. 16FE015745, and to impose a $40 court operations assessment and a $30 criminal conviction assessment in case No. 17FE004856. We will also direct the trial court to correct a clerical error in the abstract of judgment.
Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment as modified.

Convicted by jury of unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property worth over $950 (Pen. Code, § 496d, subd. (a)), defendant Trevon Jamal Whittaker contends: (1) The trial court erred by denying his motion to suppress evidence, and (2) no substantial evidence supported the jury’s finding that the stolen property was worth over $950. We affirm.

Defendant Wesley William Kessler was charged by information with carrying a concealed dirk or dagger and misdemeanor resisting a peace officer with a prior strike and two prior prison terms. The trial court declared a mistrial after the jury could not reach a verdict. On retrial, the jury found defendant guilty on both counts and sustained one of the prison priors. The trial court declared a mistrial as to the other prison prior. Defendant admitted the second prison prior and strike, and the trial court imposed a five-year state prison term. Following defendant’s subsequent sentence in an unrelated case, he was sentenced to a total state prison term of 13 years four months. On appeal, defendant contends the admission of a prior uncharged incident of carrying a concealed weapon was an abuse of discretion and violated his due process right to a fair trial.