CA Unpub Decisions

M.K. (Father) appeals from the juvenile court’s order modifying the custody and visitation of his twins G.K. and S.K. (DOB 8/2013) (collectively, the children). Following an evidentiary hearing, the juvenile court ruled a substantial change of circumstances warranted granting sole legal custody of the children to J.M. (Mother) in South Carolina and terminating the children’s visits to California until they turned five years old. Because of deficiencies in the Father’s opening brief, his failure to designate a reporter’s transcript, and the limited documents he designated for inclusion in the Appellant’s Appendix, we affirm.

Petitioner and appellant Darrell Morris, Jr., appeals from an order denying his Proposition 36 petition for a recall of sentence and resentencing. (Pen. Code, § 1170.126, subd. (b). ) Petitioner contends the trial court applied the wrong standard and abused its discretion in finding he posed an unreasonable risk of danger to public safety. We affirm the order.

Jennifer Jordan (appellant) appeals from a judgment entered after the trial court granted summary judgment on her claim of medical malpractice against Paul Lin, M.D. (respondent). Appellant contends: (1) the trial court erred in determining that appellant did not plead lack of informed consent in her first amended complaint (FAC); and (2) if this court agrees that appellant did not plead lack of informed consent, she should have been permitted to amend her complaint to add this cause of action subsequent to the summary judgment proceedings.
We find that the trial court did not err in granting respondent’s summary judgment motion, nor did it abuse its discretion in denying appellant leave to amend her complaint. Therefore, we affirm the judgment.

Counsel for defendant Isaiah Alexander Bennett has submitted a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 requesting this court to independently review the record on appeal to determine whether there are any issues warranting further briefing. Counsel has advised defendant of his right to file a supplemental brief and he has not done so. After reviewing the record, we find no arguable issues and shall affirm the judgment.

O.H. (Mother) appeals from the juvenile court order terminating her parental rights to her son, S.S. (Minor). Arguing that the court erred in not applying the relative placement preference at disposition, Mother asks us to order that Minor be placed in the home of his aunt T.S. Mother also argues that the juvenile court violated the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and that the matter should be remanded for compliance with ICWA. We conclude that Mother forfeited her claim of error as to relative placement by failing to raise the issue in the juvenile court, and that her ICWA claim has merit. Therefore, we will remand the matter for the limited purpose of compliance with ICWA.

Appellant, identifying herself as “Gologorsky formerly known as: Linda Haskin Gologorsky aka Princess Leia Lucas Pro per,” appeals from a judgment in this proceeding for dissolution of marriage. She asks this court “to overturn all rulings from, and since this trial, because they are basically, incorrect, not of legal authority, not according to De Novo standards, beyond the discretion of the court, too harmful, and, for all of the other reasons explained [in her opening brief].” We will affirm the judgment.

Defendant A.M. filed a petition requesting that the juvenile court reduce his adjudication for felony grand theft (Pen. Code, § 487, subd. (c)) to a misdemeanor pursuant to section 1170.18, the resentencing provision of Proposition 47. In his petition, A.M. also asked the court to order that a DNA sample he provided in connection with his adjudication be expunged from the state’s DNA databank. The court reduced A.M.’s grand theft adjudication to a misdemeanor but declined to order expungement of his DNA from the state databank. On appeal, A.M. challenges the latter ruling, contending section 1170.18 requires expungement. We affirm.

Diantay Powell (appellant) shot and killed two teenage girls during an argument prompted by his attempt to remove them from the car in which they were all riding. He was sentenced to prison for life without the possibility of parole plus 65 years to life after a jury convicted him of first degree murder with a multiple murder special circumstance as to one victim and second degree murder as to the other, and found true allegations he had personally discharged a firearm during the commission of each offense, causing death or great bodily injury. (Pen. Code, §§ 187, 190.2, subd. (a)(3), 12022.53, subd. (d).)

Johnson Kelley Gibbs fatally shot his brother, Allison. A jury convicted Gibbs of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and found true an allegation he personally used a firearm in the commission of the crime (§ 12022.5, subd. (a)). The trial court sentenced Gibbs to five years in state prison.
Gibbs appeals. He contends the court coerced the deadlocked jury into continuing to deliberate, which denied him the right to due process. He also argues he is entitled to resentencing in light of Senate Bill No. 620 (2017–2018 Reg. Sess.), which gives trial courts discretion to strike section 12022.5 enhancements in the interests of justice.
We remand the matter for the trial court to exercise its discretion regarding whether to strike the section 12022.5 enhancement. In all other respects, we affirm.

Minor defendant A.J. appeals from an order by the Contra Costa County Juvenile Court denying her petition to reclassify a felony violation of Vehicle Code section 10851, subdivision (a), as a misdemeanor pursuant to Proposition 47. She contends that a violation of Vehicle Code section 10851 involving the theft of a vehicle falls within Proposition 47, that she met her burden to show the value of the car involved in the present case was $950 or less, and that the trial court used an incorrect formula to determine the fair market value of the car at the time of her offense. In its recent decision in People v. Page (Nov. 30, 2017, S230793) ___ Cal.5th ___ [2017 D.A.R. 11358, 11359; 2017 Cal. Lexis 8926, *3; 2017 WL 5895782, *1] (Page), our Supreme Court held a felony violation of Vehicle Code section 10851 is eligible for resentencing under Proposition 47 if the conviction is based on the theft of a vehicle worth less than $950.

Appellant Mark William Nero was convicted following a jury trial of assault with a deadly weapon, second degree robbery, and mayhem. On appeal, he contends (1) substantial evidence does not support the mayhem conviction because no evidence was presented at trial proving that the disfigurement to the victim’s face was permanent; (2) the court erred when it imposed a great bodily injury enhancement under Penal Code section 12022.7 on the mayhem count; and (3) the court erred and violated section 654 when it imposed separate punishments for the mayhem, assault with a deadly weapon, and robbery convictions. Respondent agrees that the court erred when it imposed the great bodily injury enhancement on the mayhem count, but argues that the court also erred when it stayed the punishment on the great bodily injury enhancement attached to the robbery count.

A.V., a teenaged, United States citizen, had been living with a nonparental relative in the United States before she voluntarily went to the Bill Wilson Center (BWC), and the Santa Clara County Department of Family and Children’s Services (Department) placed her in protective custody because of caretaker absence. The juvenile court determined that A.V. came within its jurisdiction under Welfare and Institutions Code section 300, subdivision (b) (failure to protect) and subdivision (c) (serious emotional damage). Both parents, E.V. (father) and M.L. (mother), were living apart in Mexico. A.V. had not lived with father since February 2015, and she had not lived with mother since 2012. Mother requested custody of A.V. After a contested disposition hearing, the court declared A.V. to be a dependent child of the court and placed A.V. with mother, whom the court found to be the formerly noncustodial parent, under a family maintenance plan.

Appellant E. R. (mother) challenges the juvenile court’s finding that proper notice had been given as required by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). We find no merit to her challenge and affirm the juvenile court’s September 2016 order.

Defendant Christopher James McCarthy pleaded no contest to possession for sale of a controlled substance, LSD, in violation of section 11378 of the Health and Safety Code. The trial court suspended imposition of sentence and placed defendant on three years’ formal probation. Despite a physician’s statement that defendant qualifies for the use of medical marijuana under section 11362.5, one of defendant’s probation conditions bars him from possessing medical marijuana unless he provides his probation officer with paperwork from his primary care physician showing that he has a serious medical condition and uses the drug in pill form. The trial court also ordered defendant to pay various fines, fees, and penalty assessments, including a $150 drug program fee plus penalty assessment (§ 11372.7) and an AIDS education fine not to exceed $70 plus penalty assessment (§ 11377, subd. (c)).