CA Unpub Decisions

E.H. (Mother) and S.W. (Father) have a history of abusing drugs, domestic violence issues, and failing to meet the medical needs of their toddler son C.W. that led to the San Bernardino County Children and Family Services (CFS) removing their children from their home. The parents were afforded approximately 22 months of services, including return of C.W. back in their care on family maintenance. Unfortunately, they regressed to their old practices resulting in the removal of C.W. and his baby sister Ch.W. Parental rights to both children were eventually terminated. This appeal followed. On appeal, Mother challenges the juvenile court’s adoptability findings. Specifically, Mother argues (1) the juvenile court’s finding of adoptability was not supported by substantial evidence of C.W.’s developmental status, and (2) the juvenile court erred by finding the children to be generally adoptable. Father joins Mother’s arguments.

K.B. (Mother) and D.M. (Father) are the parents of four-year-old A.B. Due to the parents’ history with substance abuse and mental health issues, A.B. was removed from parental custody by the San Bernardino County Children and Family Services (CFS). Mother was provided with family maintenance and reunification services but failed to reunify with the child. Father was not provided with services as he was found to be a biological father, not entitled to service. Both parents subsequently filed petitions pursuant to Welfare and Institutions Code section 388 to modify the court’s prior orders. The juvenile court summarily denied Mother and Father’s respective petitions and set a section 366.26 hearing. Both Mother and Father challenge the juvenile court’s summary denial of their section 388 petitions, arguing the court abused its discretion in summarily denying their petitions.

Defendant Tommy Ernest Montiel appeals from the denial of his suppression motion. We affirm.

Plaintiff Roger Towers filed a petition for writ of administrative mandamus (the Petition), alleging that in 2014 the County of San Joaquin (the County) acted improperly in enacting County ordinance No. 4454, which benefitted mining operators by extending the previously approved deadline for initiating land use entitlements by an additional 24 months. Upon hearing the County’s motion to dismiss, the trial court concluded that Towers had failed to name the permit-holders and other beneficiaries of ordinance No. 4454 as real parties in interest, requiring dismissal due to the absence of indispensable parties.

Morris F. Griffin, in propria persona, appeals from the dismissal with prejudice of his legal malpractice action against Ashton R. Watkins entered after the trial court sustained without leave to amend Watkins’ demurrer. We affirm.

Appellant Michael Harden appeals from a 23-year prison sentence following his convictions for first degree residential robbery and misdemeanor possession of a smoking device. He contends he was denied a fair trial due to assertedly inadmissible evidence of prior bad acts. Specifically, he contends that the trial court should have given an instruction limiting admissibility of the evidence, that his trial counsel was ineffective for failing to seek a mistrial or curative instruction, and that the court failed to conduct an adequate hearing to determine whether any juror overheard a conversation between witnesses relating to prior bad acts. For the reasons set forth below, we find no reversible error. Accordingly, we affirm.

A jury convicted Luis R. Barahona and Oscar Perez (defendants) of numerous counts of attempting to set fire and burn property, attempted extortion, and conspiracy to commit extortion, related to their efforts to collect “taxes” from four vendors. The jury also found true gang enhancements alleged as to each count. On appeal, defendants contend the trial court erred in (1) failing to suppress a statement Barahona made to a police officer without having been advised of his Miranda rights; (2) excluding evidence that the victims engaged in illegal vending activities; and (3) denying Perez’s request for a mistrial based on unanticipated testimony from a witness. We find no merit in these arguments. However, we find the trial court erred in failing to impose sentence on count 2 before staying the sentence on that count. We remand the case to the trial court for the limited purpose of correcting the sentencing error.

Charles Patrick Damm appeals from a judgment of conviction of assault with a deadly weapon (firearm), discharge of a firearm at an occupied vehicle, and possession of a firearm by a felon. He argues the trial court erred in excluding evidence which tended to impeach a key witness for the prosecution. We find that any error did not prejudice appellant.
Appellant also argues we must remand for the trial court to exercise its discretion, newly conferred by the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.), to strike firearm use enhancements under Penal Code section 12022.53. We agree and remand the case for that purpose.

Jorge Arjona (appellant) appeals from a judgment entered after a court trial. The court awarded Margaret B. Bergener (respondent) $65,648 on her claims against appellant for breach of contract, book account, and account stated. Appellant asserts that the trial court improperly interpreted the repayment requirement of the contract between the parties. Further, appellant argues that the parties orally modified the contract by agreeing that some of the debt would be extinguished in exchange for appellant performing labor at respondent’s home. We find no error in the trial court’s decision, therefore we affirm the judgment.

After appellant S. Jackson initiated an action against the California Employment Development Department (EDD) and its former director, Pam Harris, the State of California, acting by and through the EDD (State), demurred to appellant’s first amended complaint. The trial court sustained the demurrer without leave to amend, concluding that there was no contract, and that appellant’s claim would be time-barred had a contract existed. We affirm.

Appellant Eric A. Walterscheid sued his employer, respondent City of El Monte, for retaliation in violation of Labor Code section 1102.5. A jury rendered a verdict in favor of respondent, finding that appellant did not engage in protected activity (whistleblowing or refusing to participate in an illegal activity). Appellant now appeals, contending that (1) the trial court erred in denying his motion for summary adjudication, (2) the court erred in denying his motion for judgment notwithstanding the verdict (JNOV), and (3) the court erred in denying his motion for a new trial. For the reasons set forth below, we find no reversible error. Accordingly, we affirm.

Appellant Joseph Edward Carrington appeals from the judgment entered following his conviction by jury of first degree murder, including findings he intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subds. (d) & (e)(1) ), and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Appellant’s prison sentence included a section 12022.53, subdivision (d) enhancement of 25 years to life.

Appellant Rahim Muhammad appeals from a judgment, based on a plea of no contest, convicting him of the felony offense of stalking. (Pen. Code, § 646.9, subd. (b).) His court-appointed counsel has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel has advised appellant at his last known address that a Wende brief would be filed and he may personally file a supplemental brief raising any issues he wishes to call to the court’s attention, but appellant has filed no such brief.

Defendant Hon Gin was convicted of committing felony elder abuse in violation of Penal Code section 368, among other charges. Section 368 makes it a crime to willingly inflict pain or suffering on an elder adult “under circumstances or conditions likely to produce great bodily harm or death . . . .” (§ 368, subd. (b)(1).) During deliberations, the jury asked the court to define the term “likely” as used in section 368, further inquiring whether it meant “more likely than not, possible, reasonably possible?” The trial court declined to provide a definition, instead directing the jury to an instruction advising that words not specifically defined in the instructions were to be given their ordinary, everyday meanings. Defendant contends that the court’s failure to define “likely” for the jury was prejudicial error. We agree, and we thus reverse.