CA Unpub Decisions

M. C. (petitioner), the guardian and grandmother of the minor, seeks an extraordinary writ to vacate the juvenile court’s orders made at the dispositional hearing terminating her guardianship and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452.) In addition to contesting the termination of her guardianship, petitioner contends there was insufficient evidence to support one of the jurisdictional findings, that she should have been found to be the minor’s presumed mother, and that there was inadequate compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
We issued a stay of the section 366.26 hearing and requested supplemental briefing addressing the following:

On November 22, 2019, the victim was at home watching a movie with her son and her daughter when she heard two gunshots and the crash of glass shattering. She then saw defendant Joshua Thomas, her former boyfriend and father of the two children, entering the house through the shattered glass of the sliding glass door. The victim had a restraining order against defendant at the time. Defendant said, “This is it, or, This ends today.” He backed the victim into a corner, pointing a gun at her head. The son begged defendant not to shoot the victim. When defendant walked down a hallway, the victim and the son fled, joining the daughter who had already run outside. Responding police found what turned out to be a BB gun at the scene.
A jury found defendant guilty of first degree residential burglary, stalking with a restraining order in effect, assault with a deadly weapon, making criminal threats, misdemeanor violation of a protective order, and two counts of misdemeanor child abuse.

A jury convicted defendant Thomas Frederick Leonard on 11 counts of lewd and lascivious acts upon six-year-old A., and one count of sexual penetration of A. The trial court sentenced defendant to a determinate term of 26 years and an indeterminate term of 15 years to life in prison.
Defendant now contends (1) that although there was sufficient evidence he touched A.’s genitals with the requisite intent, there was insufficient evidence he did so more than once; (2) the trial court should have allowed evidence that A. previously accused her cousin of sexually molesting her; (3) the trial court should not have allowed a psychologist’s testimony that false allegations of child sexual abuse were infrequent; (4) A.’s trial testimony, and the admission of her out-of-court statements, violated defendant’s constitutional right to confrontation because he was unable to adequately cross-examine her;

The trial court denied defendant Michael Lee Roessler’s request to strike a firearm enhancement under Penal Code section 12022.53. Defendant appeals that denial, arguing the court failed to consider whether it should reduce, rather than strike, the enhancement.
We filed an opinion on July 16, 2021, in which we concluded the trial court did not, in fact, have the authority to reduce, rather than strike, the enhancement, and thus affirmed the judgment. Our Supreme Court granted review on September 29, 2021.
On April 27, 2022, the Supreme Court transferred the matter back to this court with instructions to vacate our previous decision and reconsider the cause in light of People v. Tirado (2022) 12 Cal.5th 688 (Tirado), which concluded that trial courts are permitted to strike a firearm enhancement under section 12022.53, subdivision (d) and impose a lesser, uncharged firearm enhancement instead. Both parties submitted supplemental briefing.

Defendant Nathan Philbrook appeals from the denial of his petition to recall his manslaughter sentence pursuant to Penal Code section 1170.95 originally enacted in Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). On appeal, he first makes belated collateral attacks on the original judgment, contending his 23-year sentence, the result of a plea bargain, was void in three respects: a prior strike was neither pled nor admitted; the sentence was not run consecutively with his existing sentence, as required by the Three Strikes law; and a 12-month term, instead of a 16-month term, was erroneously imposed on one count.
Defendant also directly challenges the denial of his petition to recall his sentence. In his opening brief, he raised various grounds, including that section 1170.95 must be construed to apply to manslaughter convictions.

B.J. (Mother) appeals from the juvenile court’s post-disposition order pursuant to Welfare and Institutions Code section 388 pertaining to her children, A.Z, A.M., and I.M. Mother argues on appeal that the Department of Children and Family Services (DCFS) did not comply with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA). We affirm the post-disposition order but remand with instructions that the court ensure compliance with ICWA and related California law.

Jawana McFadden obtained a three-year civil harassment restraining order against Kim Rochard. Rochard appeals from the trial court’s denial of her request for modification of the restraining order. We conclude the trial court did not abuse its discretion and affirm.

In November 2020, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300, subdivisions (b)(1) and (j) (section 300(b)(1) and section 300(j)) on behalf of five-month-old K.R., alleging he was at risk due to the unresolved substance abuse problems of both appellant-Mother Reyna S. and appellant-father Jamie R. In April 2021, the juvenile court sustained the petition and removed K.R. from both parents. On appeal, they contend the court erred in finding jurisdiction and removing K.R. from their custody because substantial evidence did not support a finding they had substance abuse problems, or that any such problems placed K.R. at risk. They also contend the court erred by failing to place K.R. with Mother in her inpatient drug treatment program.
We conclude substantial evidence supports the court’s jurisdictional findings, and the decision to remove K.R. from both parents.

This is the third appeal in long-running litigation between attorney Steven Horn and his former client, Anthony Kling (also an attorney), litigation that continues, even as we decide this appeal. Kling and three entities he is associated with—Kling Corporation, 3123 SMB LLC, and Lincoln One Corporation (the Kling Entities)—appeal from a postjudgment, post-notice-of-appeal order awarding Horn attorneys’ fees. The trial court initially entered a judgment that stated each side was to bear its fees and costs. Horn filed a motion to amend the judgment to remove that provision, in preparation for filing a motion for attorneys’ fees. But before the court ruled on Horn’s motion, Kling filed a notice of appeal from the judgment. The trial court eventually granted Horn’s motion to amend the judgment, amended the judgment to delete the provision stating each side was to bear its fees and costs, and issued an award of attorneys’ fees in favor of Horn and against Kling and the Kling E

A jury convicted appellant Todd Davie of assault with force likely to produce great bodily injury, and the trial court sentenced him to 16 years in prison, which included the high term for the offense, a prior strike, and various enhancements. As described more fully below, during the proceedings against him, appellant made numerous motions for self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta motions) and substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden motions). Judge Deborah S. Brazil initially granted appellant’s Faretta motion, but at his next hearing, appellant gave up his pro per status. Appellant later moved for self-representation again before a different judge, Judge Sam Ohta, but refused to cooperate with the court’s attempts to ensure that he was knowingly and voluntarily waiving his right to counsel. Judge Ohta therefore denied his motion.

Annie Jiang and her company, New Home for Me, Inc., filed this action against Inis Ferreira, also known as Tia Berg, Michael Judah, and others for rescission of an agreement to purchase an assisted living facility known as Wilshire Vista Manor and for damages. Jiang alleged that Berg and Judah misrepresented Wilshire Vista Manor’s income and expenses and that Jiang would not have purchased the business had she known it was unprofitable. The trial court granted a motion to compel arbitration based on an arbitration provision in the purchase and sale agreement, and an arbitrator issued an award in favor of Jiang that rescinded the transaction and ordered Berg and Judah to pay Jiang damages and attorneys’ fees. The trial court entered a judgment confirming the arbitration award.

The County of Napa (County) appeals the trial court’s postjudgment award of attorney fees and costs. The County contends the trial court abused its discretion when it reduced the amount of attorney fees and costs awarded. Defendants David D. Wesner, Janice L. Wesner, and Don Wesner, Inc. (collectively the Wesners) argue the appeal is untimely and must be dismissed. We conclude we must dismiss the appeal for lack of jurisdiction.

The doctrine of law of the case “ ‘precludes a party from obtaining appellate review of the same issue more than once in a single action.’ ” (Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1153.) This principle determines the present appeal because appellant has previously raised in this court, and lost, the sole issue he presses here.
In 2017, Edward D. Hume filed a trial court motion to enforce a 2004 judgment that incorporated a settlement agreement between Edward and his family, claiming that his mother Janet had breached the agreement. The trial court denied the motion, finding that it was Edward rather than Janet who had breached the settlement agreement. In 2018, Edward filed a motion to vacate the 2004 judgment, claiming that the judgment is void for lack of jurisdiction. This motion was also denied. In 2019, both rulings were affirmed by another panel of this court. (Hume v. Hume (Aug. 30, 2019, A152546, A154161) [nonpub. opn.].)

Southwest Airlines passenger Richard Ilczyszyn tragically suffered a massive pulmonary embolism while locked inside an airplane lavatory during the final stages of a flight from Oakland to Orange County. Rather than treating Ilczyszyn’s circumstances as a medical emergency, the flight crew perceived him to be a security threat. As a result, he did not receive medical care until after the flight had landed and the other passengers had disembarked. By then, he had gone into cardiac arrest. Although he was resuscitated, he later died in a hospital. Ilczyszyn’s widow Kelly, together with his three children, sued defendant Southwest Airlines Co. (Southwest) alleging that the flight crew’s failure to provide medical assistance caused his death. Following a lengthy trial, the jury found that Southwest was negligent but found against plaintiffs on the issue of causation.