CA Unpub Decisions

The father and the mother separately appeal from termination of their parental rights pursuant to Welfare and Institutions Code section 366.26. (Unless otherwise indicated, all subsequent statutory references are to this code.) The father contends the juvenile court deprived him of due process of law by preventing him from calling his then five-year-old daughter as a witness. The mother argues the Orange County Social Services Agency (SSA) failed to comply with the Indian Child Welfare Act (ICWA). We affirm the orders.

The primary issue in this case is whether the police had reasonable suspicion to stop and pat down appellant after receiving an anonymous tip regarding graffiti activity in the area where the stop occurred. Based on the tip, and all of the other circumstances surrounding the encounter, we conclude there was reasonable suspicion to believe appellant was involved in criminal activity and carrying a weapon. Therefore, the fruit of the patdown search – a black graffiti marker – was lawfully obtained, and the trial court properly denied appellant’s motion to suppress that evidence. Appellant also contends some of his probation conditions are unconstitutional, and the court lacked authority to set the maximum term of his confinement. As the Attorney General concedes, the latter claim has merit. We will therefore modify the judgment to strike the maximum confinement term. In all other respects, we affirm.

A jury convicted John Saway of first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to the Penal Code), possession of a firearm by an ex-felon (§ 12021, subd. (a)(1)), and active participation in a criminal street gang (§ 186.22, subd. (a)).
The jury found true an allegation the murder was committed with the intent to further the activities a criminal street gang (§ 190.2, subd. (a)(22)), and allegations Saway committed the murder and illegally possessed the firearm for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and discharged a firearm causing death with the intent to promote, further or assist criminal conduct by members of a criminal street gang (§ 12022.53, subds. (d), (e)(1)). The court found true an allegation Saway had a prior serious felony conviction within the meaning of section 667, subdivision (a).

Appellant Rito Ortega was convicted of six counts of child sexual abuse for molesting two of his wife’s sisters, G. and S. He contends one of his convictions – for committing a lewd act against G. in count 1– must be reversed because the trial court failed to give the standard unanimity instruction. We disagree and affirm the judgment.

The People charged 15-year-old defendant Leonardo Armando Salinas in “adult” criminal court with attempted premeditated murder and assault with a firearm, along with related firearm, great bodily injury (GBI), and gang enhancements. The jury found him guilty of both counts and found all the enhancements true. The trial court imposed a prison term of 40 years to life.
Salinas claims the evidence was insufficient, the trial court made certain evidentiary and instructional errors, and his counsel provided ineffective assistance. None of these claims has merit.Salinas also claims the trial court did not understand that it had the discretion to strike the punishment for the gang enhancement, that he did not have an opportunity to make a complete record for his first youthful offender parole hearing, that he is entitled to a transfer hearing in the juvenile court, and that the trial court may exercise its discretion on remand and dismiss the firearm related sentencing enhancements.

Wayne T. Hetman appeals from an order denying his second motion for a new trial – a motion he filed five and a half years after entry of the judgment in favor of James Michael Harm and Soraya Maria Harm (Soraya) (collectively, the Harms) in this case, and more than seven years after his first motion for new trial was denied. Because the trial court had long since lost jurisdiction to grant such a motion, we find no error in its refusal to do so.

This dispute has visited our court many times. In this latest iteration, Wayne T. Hetman appeals from a posttrial order entered after he obtained a judgment against his neighbors, James Michael Harm (James) and Soraya Maria Harm (collectively, the Harms), in the second lawsuit between them. The Harms prevailed against Hetman in the first lawsuit.
Hetman contends the trial court erred by: (1) denying his motion for attorney fees; (2) refusing his proposed jury instruction to inform the jury about his right to an award of punitive damages under Civil Code section 1798.53 (section 1798.53) (providing for an automatic award of $2,500 on a cause of action for illegal disclosure of personal information), and then denying his posttrial motion to add that sum to the judgment; (3) refusing to terminate a judgment lien in favor of the Harms; and (4) refusing to grant his request for a permanent injunction against them.

Petitioner Steven K. (father), in propria persona, seeks an extraordinary writ directing the juvenile court to vacate its orders issued at a contested 18-month review hearing (Welf. & Inst. Code, § 366.22) terminating reunification services for Amanda H., the mother of his now 23-month-old daughter Addison, and setting a section 366.26 hearing to implement a permanent plan of adoption. Father contends the juvenile court erred in not returning Addison to Amanda’s custody. We assume father has standing to challenge the court’s orders as to Amanda and deny the petition.

A.S. (mother) seeks an extraordinary writ from the juvenile court’s order issued in September 2017, setting a Welfare and Institutions Code section 366.26 hearing as to her now four-year-old son, Anthony. The September 2017, hearing was a dispositional hearing at which the court denied mother reunification services pursuant to section 361.5, subdivision (e)(1) because of her lengthy prison sentence. We conclude mother failed to raise a claim of juvenile court error and dismiss her petition as facially inadequate for review. (Cal. Rules of Court, rules 8.450 & 8.452.)

American Contractors Indemnity Company (American), as surety on a bail bond that was posted for the release from custody of Carlos Gustavo Teran-Miranda (defendant), appeals from the trial court’s order denying its motion to vacate forfeiture of bail and to exonerate the bond. The motion was filed under Penal Code section 980, subdivision (b) (section 980(b)), on the ground that the failure to enter a bench warrant for defendant’s arrest into the National Crime Information Center (NCIC) database prevented defendant from being arrested and taken into custody. The trial court denied the motion on the ground that the required factual showing for obtaining relief under section 980(b) had not been made. American appeals from that ruling. We agree with the trial court’s conclusion that American failed to show sufficient factual grounds for relief under the statute, and accordingly, we affirm the order of the trial court.

Following an incident of domestic violence with his wife, appellant Dominic Taryll Harper pled no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 2); corporal injury to a spouse (§ 273.5, subd. (a); counts 3 & 4); assault with a firearm (§ 245, subd. (a)(2); counts 5 & 6); felony evading (Veh. Code, § 2800.2, subd. (a); count 7); felon in possession of a firearm (§ 29800, subd. (a)(1); count 8); and carrying a loaded firearm (§ 25850, subd. (a); count 9). His plea included firearm and great bodily injury enhancements, and an admission of a prior prison term. He received an aggregated prison sentence of 10 years. At sentencing, the trial court continued a criminal protective order that had been previously imposed at the start of this action. The order protected appellant’s wife and two additional victims, Krystal R. and Alexander S. On appeal, appellant contends that the protective order must be stricken as to Krystal and Alexander.

Plaintiffs and appellants, N. Robert Nielsen, Inc. and N. Robert Nielsen, Jr., filed the underlying action for breach of contract and negligence against defendants and respondents, accountants Moore, Grider & Company and Cory Bell. The trial court granted summary judgment in respondents’ favor on the ground that the two-year statute of limitations for a claim based on an accountant’s professional negligence barred the complaint.
Appellants contend the trial court erred because there were triable issues of material fact regarding when they discovered the alleged negligence and/or suffered damages. Appellants further argue that respondents did not properly raise the statute of limitations defense in their answer and that the trial court abused its discretion when it allowed respondents to amend that answer. The trial court did not err as claimed by appellants. Therefore, the judgment will be affirmed.

Appellant Jarrod Ernest Spencer Hayes appeals following his convictions for murder and assault with a firearm. Relevant to this appeal, appellant’s murder conviction included true findings on a gang-related special circumstance and a gang enhancement allegation. Appellant raises several assertions of error concerning these later allegations. Specifically, appellant contends the true finding on the gang-related special circumstance cannot stand because the relevant statute is constitutionally infirm, since it is not sufficiently differentiated from the gang enhancement to properly narrow the class of individuals potentially subject to the death penalty. Related to this point, appellant contends there is insufficient evidence to support the gang-related special circumstance.

A jury convicted appellants Richard Victor Escalon and Marcos Gonzalez, Jr. of first degree murder (Pen Code, § 187, subd. (a)) for the death of Christopher Michael Zuniga, finding true that appellants both personally used a deadly weapon. Gonzalez was sentenced to 28 years to life in prison and Escalon was sentenced to 31 years to life.
On appeal, they claim that Gonzalez’s statements to police were improperly used against him at trial. They further assert that the trial court erred in failing to instruct on attempted murder, and the court abused its discretion in permitting introduction of certain trial evidence. Finally, they claim prosecutorial misconduct. We affirm.