12. The record, read in its totality, demonstrates the children were removed from mother’s care not simply for “drug use,” as she suggests, but for longstanding substance abuse which put the children at risk of physical harm. The record also demonstrates several other reasons for removal, including mental health issues, <mask> issues, home safety issues, as well as a general disregard for the children’s safety as evidenced in part by her failure to secure the children in car seats and subsequent ambivalence about the failure. Mother’s assertion she was denied reunification services only because she was incarcerated is similarly not entirely accurate. Mother’s incarceration simply triggered the court’s consideration of whether services would be detrimental to the children. The court ultimately denied services to mother based on its finding the services would be detrimental to them, a finding mother notably did not challenge on appeal for sufficiency of the evidence. This is all to say mother’s allegations that she had been methamphetamine free for a period of eight months and had been released from custody were not compelling reasons that the proposed order was in the children’s best interests. Mother’s allegation she had been sober for a period of eight months, several of which she was in custody, carried little weight in light of her long history of substance abuse and multiple periods of sobriety and relapse. Mother had reported using methamphetamine since she was 17 years old. At the time the dependency proceedings were initiated, she was 39 years old, which indicates she has struggled for over half of her life and the entirety of her adulthood with her addiction. Her relapses had a demonstrable negative effect on her children, as evidenced by her history of child welfare referrals, the facts leading to the present case, and M.B.’s comments at the section 388 hearing that she did not want to go through “another relapse” with mother and she and Matthew did not want to get hurt “again.” Further, as the agency points out, mother made no allegations as to whether she had begun to or was willing to address her mental health issues or demonstrated disregard for the children’s physical safety.


Moreover, respondents’ decision to terminate petitioner’s employment, their failure to provide her the reasonable accom*801modations she requested (despite abundant notice of her status as a victim of domestic violence), their failure to follow their own Directive on <mask> victims (see respondents’ exhibit 21) and failure to engage in any “interactive process,” was arbitrary and capricious, an abuse of discretion, and made in bad faith. Significantly, respondents do not argue that it would have caused undue hardship in the conduct of their business to provide a reasonable accommodation to enable petitioner, who is a victim of domestic violence, to satisfy the essential requisites of her job. Respondents have also failed to show the unavailability of any safe and reasonable accommodation for petitioner’s status as a victim of domestic violence, but instead denied petitioner’s multiple requests, based on the legally insufficient reason that petitioner was a “probationary employee.” As indicated, probationary employees are also covered by the New York City Human Rights Law. (See Quick v Horn, 21 Misc 3d 1116[A], 2008 NY Slip Op 52078[U] [Sup Ct, NY County 2008]; Matter of Reynolds v Fraser, 5 Misc 3d 758 [Sup Ct, NY County 2004].) Consequently, respondents have utterly failed to meet their burden to prove that any proposed accommodation would place an undue hardship on their business. (See Administrative Code § 8-102 [18]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]; Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881 [2013].) Such failure by respondents buttresses petitioner’s claim of bad faith.


Following a review hearing in August 2020, the juvenile court ordered Tina to cooperate fully with DHHS and the caseworker, maintain reasonable contact with her case manager and providers, maintain a suitable residence, seek and maintain gainful employment, and participate in “individual/family counseling programs.” The court further ordered that all medical information and physician appointments regarding the children be provided to Tina and her counsel. Following a review hearing in November, the matter was continued for further review hearings “under the terms and conditions previously ordered.” On November 24, 2020, the State filed a motion to terminate Tina’s parental rights to Angel and Vivian pursuant to Neb. Rev. Stat. § 43-292(7) (Reissue 2016). The State alleged that the children had been in an out-of-home placement for 15 or more months of the most recent 22 months, Tina remained unfit to provide parental care for them, and that termination of Tina’s parental rights was in the children’s best interests. TERMINATION HEARING The hearing on the motion to terminate Tina’s parental rights was held in May 2021, and an interpreter was present. The State called five witnesses to testify. Tina testified in her own behalf. Several exhibits were also received into evidence. A summary of the relevant evidence follows. Certified copies of this family’s two previous juvenile court cases were received into evidence. In March 2008, a juvenile petition was filed in Sarpy County Juvenile Court Docket JV 08-206, alleging that Thu and Angel fell within § 43-247(3)(a) because they lacked proper parental care insofar as their mother, Tina, was concerned; Vivian was not yet born. The petition alleged, as later amended: <mask> has been occurring in the home since on or before December 2003, and [Tina] has failed to seek services for herself or her husband. The mother, who works evenings from 3 p.m. to 11 p.m. sometimes goes to the casino after work. Currently, there are marital issues causing stress and discord in the family.


The parties filed cross petitions for custody of K.B. Jr. Petitioner filed a petition for custody on July 19, 2007. Respondent filed a cross petition for custody on August 6, 2007. Respondent stated in her cross petition that it would be in the best interest of the child if custody of the child was awarded to her since petitioner is actually a woman. In respondent’s affirmation it is alleged that petitioner committed acts of <mask> against her while they lived together and that she feared for the safety of the child. In respondent’s custody petition she stated that the petitioner was “actually a woman” and therefore the marriage was “invalid.” (Cross petition of J.R., Aug. 6, 2007.)


Mother's counsel again cited the section 3044 presumption. The court responded, "I will look at [section] 3044 right now." The court stated its ruling that Father was more suitable and stable than Mother. The court acknowledged it issued a <mask> restraining order but observed "the standard is not a very high standard." The court remarked it had issued the order to address "relations between Mother and Father." "And we have many situations *215where the parents just, you know, there are issues. There is a need to keep one parent away from the other and where they crossed over a line justifying the issuance of a DVRO [domestic violence restraining order]."


The relevant statutory language at the time of the court's July 2018 hearing stated, "Upon a finding by the court that a party seeking custody of a child has perpetrated <mask> against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence." (Former Fam. Code, § 3044, subd. (a), as amended by Stats. 2003, ch. 243, § 1, p. 2329.) "The requirement of a finding by the court shall also be satisfied if a court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years." (Former Fam. Code, § 3044, subd. (d)(2), as amended by Stats. 2003, ch. 243, § 1, p. 2330.) The statutory language was later amended, but the amendments do not have a material impact on our analysis. (Stats. 2018, ch. 941, § 3, pp. 6217-6218.)


The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or <mask> by the child’s other parent. [MCL 722.23(j).]


“<mask> has three phases that comprise the ‘cycle of violence’: (1) the tension building phase, (2) the violence phase and (3) the honeymoon phase. During the first two phases the victim is reduced to a state of fear and anxiety due to impending or actual violence. In the honeymoon phase, the abuser acts with contrition, begs for forgiveness and makes declarations of love. During the honeymoon phase, the victim is seduced into believing that the abuse will cease and that the family will remain intact. This cycle repeats itself over many years . . . “[D]uring the honeymoon phase, victims of domestic abuse often recant their reports of abuse and refuse to testify. During this phase, the batterer has, often in violation of an order of protection, repeatedly contacted the victim, professing apologies and declarations of love to trick the victim into believing that the violence will end. During this ‘reconciliation’ the batterer is able to convince the victim that recantation would solve their problems” {id. at 270). For all the foregoing reasons, this aspect of defendant’s motion is denied.


As related in his 2017 Comprehensive Risk Assessment, petitioner grew up with a mother who was verbally abusive and a stepfather who was both physically and emotionally abusive toward the entire family, and until age 15 or 16 felt "invisible, insecure and unworthy." His older brothers ran away and were then placed in foster care when petitioner was seven or eight years old, leaving him feeling abandoned. Though a friendship with his stepfather's nephew, petitioner had begun to engage in criminal activity, and by 16 he was selling cocaine. At age 16 he intervened in an incident of <mask> between his stepfather and his mother, striking his stepfather in the head with the leg of a chair, and he began to feel "untouchable and invincible." His criminal behavior escalated as he hung around with antisocial and criminal peers, sold narcotics and carried weapons. His mother moved to Minnesota, leaving petitioner to live with his brother and contributing to petitioner's *970feeling of abandonment. Petitioner then moved into a house with a group of older people who were selling drugs. Petitioner had dropped out of school after failing tenth grade. He enrolled in Job Corps., where he obtained a GED, but was expelled for fighting. He was fired from or left jobs due to his criminality.


*764“[ejmployers are required to maintain employee confidentiality for leave taken under the law, and employees may use vacation, personal leave or compensatory time off that is otherwise available to them. However, the law does not create employee rights to take unpaid leave in excess of the time allowed under the federal Family and Medical Leave Act of 1993” (California Prohibits Adverse Employment Action Against Sexual Assault Victims, Private Educ L Rep [Dec. 2002]). Rhode Island (RI Gen Laws § 12-28-10 [a]) bars employment discrimination by employers, employment agencies and licensing agencies against those who seek or refuse to seek a protective order under Rhode Island General Laws, title 15, chapter 15 or title 8, chapter 8.1. In 2001, Tennessee’s General Assembly introduced bills which would (1) make it discriminatory for an employer to fire or not hire victims of <mask>; (2) prohibit denying unemployment benefits because of circumstances stemming from domestic abuse, and require that unemployment compensation be provided when an employee loses a job due to domestic abuse; and (3) allow employers of domestic violence victims threatened at the workplace to seek a TRO and injunction protecting workplace and the domestic violence victim while at the workplace.


Although Kerley was not in custody, he presented no danger to Dever in the police station. Officer Harper conducted a standard post-incident interview of a <mask> victim in order to establish and document what had happened at the house. Although the timing and duration of the interview are not clear from the record, Dever was at the police station for approximately two hours. Viewing all of the circumstances objectively, it is clear the *552primary purpose of the police station interview was to gather evidence of past events for possible use in a criminal prosecution. This interview is indistinguishable from the police interviews in Crawford , Hammon, and Cage .


The juvenile court exercised jurisdiction over L.K., the child of L.M. (mother)1 and M.K. (father), under Welfare and Institutions Code2 section 300, subdivisions (a) and (b). It found L.K. was at risk of harm due to father’s physical abuse of L.K., violent conduct toward mother, and alcohol abuse, as well as mother’s failure to protect L.K. from father’s conduct. Subsequently, the court removed L.K. from father under section 361, subdivision (c)(1) and placed her with mother under the supervision of the Department of Children and Family Services (the Department). It ordered father to participate in enhancement services and granted him monitored visits in a therapeutic setting. On appeal, father contends: (1) the jurisdictional findings regarding his physical abuse of L.K., his infliction of <mask> on mother, and his alcohol abuse are unsupported by substantial evidence; (2) removal was unwarranted because reasonable alternatives to removal were available to protect L.K. if she were returned to father; (3) the juvenile court abused its discretion by including certain services in his court-ordered case plan; and (4) the court improperly delegated its authority to determine the frequency of his visits with L.K. to her therapist. As discussed below, we conclude father’s first three arguments are without merit. We further conclude father


5 The purpose of the PFA Act is to protect victims of <mask> from those who perpetuate such abuse, with the primary goal being the prevention of physical and sexual abuse. Buchhalter v. Buchhalter, 959 A.2d. 1260, 1262 (Pa. Super. 2008); see also 23 Pa.C.S. § 6108 (enumerating forms of relief availing under the Act). “A PFA order may be justified if the trial court finds that it is supported by a preponderance of evidence.” K.B. v. Tinsley, 208 A.3d.123, 128 (Pa. Super. 2019). The trial court’s exclusive role as the finder of fact is to assess the demeanor and credibility of witness testimony. See C.H.L. v. W.D.L., 214 A.3d 1272, 1276-77 (Pa. Super. 2019). When reviewing the propriety of a PFA order, an appellate court applies an abuse of discretion standard and must defer to the trial court’s credibility determinations. Id. All record evidence must be viewed in the light most favorable to the party for whom a PFA order was granted. Id.


David's petition was brought pursuant to the Act, which as amended in 2014 provides that its purpose is "to prevent acts of <mask>, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the cause of the violence." (§ 6220.)12


second, he broke away from a supervisor while being disciplined, hopped over a barrier, and started fighting with another ward. The jury heard evidence of <mask> Newborn committed against several partners. Arguing with Tanchell Anderson shortly after their relationship ended in 1991, name- calling escalated to an exchange of blows. Anderson told police Newborn had knocked her to the ground and punched her in the face about 30 times. When Newborn was dating Aneadra Keaton in 1992, he once broke into a house she was visiting and assaulted her, pushed her down a stairway, and forced her to leave. Another time, Newborn hit Keaton several times during an argument. Detrick Bright was driving a car in August 1992 when Newborn kicked in her car window, injuring her with broken glass. In 1993, he took her pager and hit her several times. When police arrived, Newborn resisted and had to be subdued with mace. Later that year, Newborn sprayed the then-pregnant Bright in the face with household cleaners. In November 1992, Rochelle Douglas had been dating Newborn for over three years and was eight-and-a-half months pregnant with his child. One day they argued, and Newborn asserted the child was not his. He told her not to “put the baby in his name” when it was born or he would hurt her. He then hit her several times in the face. Two other incidents were introduced. In 1992, Newborn threatened Louise Jernigan with a gun during an argument. In May 1993, he resisted arrest. Officers responding to reports of an armed man asked to search Newborn and directed him to place his hands on his head. He refused to comply, yelling curses and attempting to incite a nearby crowd.


The court stated that it wanted S.Y. to have primary physical custody and that S.Y. should have four days with A. and Omar should have three days. This was actually a de facto joint custody order. ( Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 663, 207 Cal.Rptr.3d 756 ( Celia S .) [50/50 time split between parents was de facto joint physical custody even though court said it was giving sole legal and physical custody to mother and characterized father's time as visitation].) " 'Joint physical custody' means that each of the parents shall have significant periods of physical custody." (§ 3004.) In Celia S ., the order awarding de facto joint physical custody was reversed because there was simply no evidence rebutting the <mask> presumption. ( Celia S ., at pp. 663, 664, 207 Cal.Rptr.3d 756.) The case was remanded for the court to restore sole custody to the mother but noted that the father could move to modify custody, subject to the section 3044 presumption. ( Id . at pp. 664-665, 207 Cal.Rptr.3d 756.) The appellate court did not find de facto joint physical custody erroneous in all cases, but that it required rebuttal of the section 3044 presumption. ( Ibid . )


On cross-examination, the prosecutor asked Kim about section 278.7. Defense counsel objected on the grounds that the question was beyond the scope of the direct examination. The objection was sustained. Moments later, the prosecutor asked Kim how she would counsel someone who was concealing a child to protect them from <mask>. Kim responded that she would advise the person to file a "good-faith report" with the district attorney's office and commence a custody action. When the prosecutor attempted to follow up, defense counsel objected that the follow up questions were beyond the scope of the direct examination. This time, the trial court overruled the objection, stating, "You qualified her as an expert witness in the use of the family law procedure and domestic violence in general, so at this point it's fair game." The prosecutor then asked Kim a series of questions regarding section 278.7's reporting requirements. As we shall discuss, there was no evidence that defendant complied with these requirements.


"[THE TRIAL COURT]: I completely agree with the People on this. You can't raise the issue of threat of <mask> as you have done and then just leave it out there. This is the only way a person can take advantage of the defense of I had to leave because I was afraid of violence to me or my child.


Appellee Arkansas Department of Human Services (DHS) initiated contact with appellants on December 3, 2015, after receiving a hotline report of environmental neglect, drug use, <mask>, the children being "filthy[,]" and lack of food. Family services worker (FSW) Katie Wells made contact on the same date; she found adequate food and observed no health or safety concerns. Appellants denied drug use, domestic violence, and a lack of food. Unsuccessful attempts to visit appellants were made on January 4 and 6, 2016, but a successful attempt was made on January 11, 2016. Again, there was adequate food and no health or safety concerns were found; however, appellants both refused drug screens. Because the hotline report could not be substantiated, the case was closed on January 13, 2016.


The court has reviewed the undisputed facts in light of the new statute’s broad prohibition and narrow exceptions. Mr. R. was convicted of second degree murder of his son’s mother. Michael, only three years old, is too young to agree to visits. Michael’s maternal grandmother, who has legal custody, opposes visitation. There is no claim that petitioner was himself the victim of <mask> inflicted by the deceased.


Soon thereafter, the juvenile court scheduled a hearing in the dependency proceedings "for status of Parentage." Prior to the hearing, Michael, Joel, and Donald all filed requests to be declared the minor's father. Michael also sought an order of visitation. In support of his request for presumed parent status, Donald submitted a declaration describing his relationship with the minor and stating that although he was required by a <mask> restraining order to live apart from Mother and the minor, he intended to reunite with them when permitted to do so and to "remain[ ] [the minor's] father for the rest of his life."


At the end of the trial on custody, the court stated the reasons for its ruling and issued an interim order granting joint legal custody and de facto joint physical custody to S.Y. and Omar. The court found that Omar perpetrated <mask> on S.Y. on August 29, 2016, giving rise to the section 3044 presumption, but that a grant of custody to Omar would not be detrimental to A.'s best interests. It found that Omar did not pose a risk to A.'s safety, given the presence of family members, and that Omar rebutted the presumption of detriment.


BERNICE BOUIE DONALD, Circuit Judge. Michael Lee Johnson was indicted for unlawful imprisonment, assault of a domestic partner by strangulation and suffocation, interstate <mask>, witness tampering, and assault, in violation of 18 U.S.C. §§ 13, 113(a)(8), 113(a)(4), 2261(a), and 1512(b). A jury found Johnson guilty on all counts, and he was sentenced to 864 months’ imprisonment, followed by four years of supervised release. Johnson now challenges his conviction and sentence. For the reasons set forth below, we REVERSE and REMAND.


8 The temporary restraining order did not include (and Mother did not reached the same decision after considering Mother’s claim that Father’s actions violated the temporary restraining order and disturbed her peace. (S.G., supra, 71 Cal.App.5th at p. 672 [mother’s testimony regarding father’s alleged history of <mask>, “as well as her testimony that [f]ather violated the 2019 temporary restraining order by parking near her driveway” was not “ ‘ “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support” ’ the requisite finding— namely, that a permanent restraining order was necessary to protect [m]other’s safety.”].) We therefore reject Mother’s contention that the court misapplied the law in evaluating her claims. Although the majority of the evidence presented to the trial court involved the parties’ custody dispute, Mother also testified briefly about two prior incidents of alleged abuse during the parties’ marriage. As set forth ante, Mother contended in her first supplemental declaration that Father “was verbally abusive” during their marriage and “used his physicality to intimidate [her].” At the evidentiary hearing, Mother briefly described these two alleged incidents. During the first incident, Mother alleged that Father was unsatisfied with her responses to his questions and he apparently


On October 8, David and Joannie stipulated to a temporary timeshare arrangement for their children. They agreed to split custody evenly, but David insisted on continuing to pursue his request for a child custody evaluation. David also required a provision that specifically "reserves his right" to seek a custody modification "at any time" pursuant to Family Code section 3044, which creates "a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated <mask> is detrimental to the best interest of the child."


In this first place the decision herein clearly does not pertain to the issue which was the subject of the Turza and Trabazo cases — the creation of the integrated <mask> parts. The issue therein is a grant of ancillary jurisdiction over related matters involving matrimonial law, family law and criminal law within the Supreme Court. The need to consolidate all matters involving the same or similar parties in one forum is arguably well within the power of the Chief Administrative Judge. (People v Gutierrez, 2001 NY Slip Op 40290[U] [2001].)


There have been no reported cases interpreting this statutory provision. However, in this court’s view, the storage of the firearms by the defendant’s father within the home inside a locked *779glass display case does not satisfy the underlying aim of the statute to require that firearms possessed by one who resides with an individual who such person knows, or has reason to know, is prohibited from possessing such firearm be secured in a “safe storage depository” within the meaning of Penal Law § 265.45. In order to comport with the statute’s purpose to enhance protections for victims of <mask>, secure storage of firearms within a household where a defendant convicted of domestic violence offenses resides is necessary. Securing such firearms within a glass case, even if locked, does not meet the minimum requirements for safe storage.


The case social worker assessed the children for physical, sexual, and emotional abuse in the home, but found none. All four family members denied any <mask> occurred in the home, stating the children's electronics were usually taken away as punishment. The parents reported the children were current with their immunizations, went to the doctor if they were sick, and did not have any medical conditions. Alexzander told the case social worker he was in eighth grade and received A's and B's in school. He also reported he has perfect attendance and is never late. Catrina reported she is in fifth grade and gets good grades.


Whether the visitation provisions in the judgment of divorce now before this court meet the jurisdictional standards of article 5-A of the Domestic Relations Law, when there is no evidence that the wife ever signed any document evincing her agreement to those explicit provisions, requires further analysis. The UCCJEA defines “child custody determination” as an order of a court providing for visitation with respect to a child (Domestic Relations Law § 75-a [3]). The Singapore interim judgment is a “child custody determination” within the meaning of the UCCJEA. There is no claim by the wife that the Singapore court improperly applied the laws of Singapore in adding the language which spelled out the husband’s visitation rights. The core of the wife’s complaint before this court is twofold: (1) that the interim judgment of divorce, which contains the specific description of the husband’s “liberal” access rights, was modified without either the wife’s consent or the findings of a court after a hearing7 and (2) she claims the divorce was procured, in part, as a result of <mask> against her.


The financial stress also affected Mother's ability to control her temper. When she abused the children, she usually used her hands, a belt, or some other instrument. A social worked contacted Mother about <mask> in 2007. Mother admitted having hit J.N. with a belt, leaving a bruise. The social worker suggested therapy, and Mother took some domestic violence classes. Mother said the counseling helped and she did not hit the children as much thereafter. J.N.'s older sister had additional counseling because she was depressed, suicidal, and cut herself.


Deborah A. Haendiges, J. On January 18, 2011 the defendant was arraigned in Buffalo City Court on one count of harassment in the second degree pursuant to Penal Law § 240.26 (1) alleging an act of <mask> by the defendant against the complainant. Thereafter, on January 26, 2011 the People declared their readiness for trial and defendant served motions on the Erie County District Attorney on February 1, 2011. While this Buffalo City Court action was pending, three petitions were simultaneously pending in Erie County Family Court between the defendant, complainant and a third family member concerning the custody of the defendant’s and complainant’s child. The pendency of these simultaneous criminal and Family Court matters with the underlying issue of domestic violence prompted a screening by this court, the Supreme Court Integrated Domestic Violence (hereinafter IDV) Part, located in Erie County.


complex was unlocked and cracked open and that Candice’s apartment door was open. Housh stated that during previous visits, she was unable to enter the apartment complex because the front door was always locked. Candice informed Housh that she had been assaulted four times, and Housh observed that Candice had stitches on her left eyebrow and bruising on her eyes and face. During the meeting, Candice stated that she feared disclosing the assaults to Housh because she had been previously told that she needed to make real changes and participate in all services. Candice denied using any alcohol. After further discussion, Candice reported to Housh that she had been at a <mask> support center which offered her crisis services, emergency shelter, and transitional housing. Housh testified that during her meeting with Candice, Candice received a call from the center asking when Candice would be returning to the center. During the meeting, Housh informed Candice of the pending motion to terminate Candice’s parental rights and the scheduled hearing thereon. Housh testified that this information caused Candice to become visibly upset, raise her voice, use profanity, and present with “aggressive” body language. Housh indicated Candice was eventually able to calm down and continue the discussion, telling Housh that she had called her children “a few times” from the center, she provided Christmas gifts for her children, and stated several times that she was “the best mom and that she ha[d] always been there for her children.” Housh admitted that Candice and the children share a strong bond and love each other and that when Candice was sober, the visits went well. However, when Candice was not sober during visits, [t]he children did not want to continue the visits and would usually ask the visitation worker if they could leave the visit. During the visit, what would upset the girls . . . would be [Candice’s] falling asleep on the couch, her questioning the girls about different things that either didn’t make sense or that the girls didn’t know - 609 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports IN RE INTEREST OF SERENITY A. & CANJERRICA D. Cite as 30 Neb. App. 602


harm to the minors. Moreover, the <mask> allegations were too dated to show evidence of a current risk. We disagree. The social services agency must prove by a preponderance of the evidence that the minor comes within the juvenile court’s jurisdiction. (§ 355, subd. (a); In re Isabella F. (2014) 226 Cal.App.4th 128, 137 (Isabella F.).) As relevant here, section 300, subdivision (b)(1) authorizes dependency jurisdiction when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of the child’s parent . . . to adequately supervise or protect the child, . . . or by the inability of the parent . . . to provide regular care for the child due to the parent’s . . . mental illness, developmental disability, or substance abuse.” Juvenile dependency proceedings are intended to protect not only children who are currently being abused or neglected, but also “to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2; In re T.V. (2013) 217 Cal.App.4th 126, 133.) “ ‘The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.’ ” (In re T.V., at p. 133.) “We review the jurisdictional findings for substantial evidence. [Citation.] We consider the entire record, drawing all reasonable inferences in support of the juvenile court’s findings and affirming the order even if other evidence supports a different finding. [Citation.] We do not consider the credibility of witnesses or reweigh the evidence. [Citation.] Substantial evidence does not mean ‘any evidence,’ however, and we ultimately consider whether a reasonable trier of fact would make the challenged ruling in light of the entire record.” (Isabella F., supra, 226 Cal.App.4th at pp. 137-138.) Here, the juvenile court carefully considered how mother’s various conditions affected the minors and their physical and mental well-being. As to mother’s mental illness, the court reviewed evidence that, while mother had previously been diagnosed and medicated for multiple mental illnesses, she was no longer taking medication and did


In stating the bases for rebuttal of the presumption, the trial court said that Omar was more fluent in English than S.Y. and found his greater fluency to be an advantage for "navigation through the American medical and educational system." It was error to use language fluency to rebut the presumption of detriment arising from <mask> as it has no relation to A.'s safety or the impact of prior domestic violence on him. The error does not require reversal or remand, however, because there was sufficient other evidence supporting the court's finding that Omar had rebutted the presumption of detriment with respect to both legal and physical custody.


In People v Greenlee (70 AD3d 966 [2d Dept 2010], Iv denied 14 NY3d 888 [2010]), the Court held admissible medical records containing a statement by a victim that she was attacked by friends of her former boyfriend who were trying to stop her from testifying against him in a <mask> proceeding. The Court found that the statement was admissible because it was relevant to treatment in that it could be used to develop a discharge plan that would provide for the victim’s safety.


The general purpose of a trial, or a hearing, is to address and determine issues of fact. (See generally Matter of Lagani v Li, 131 AD3d 1246 [2d Dept 2015].) As the defendant has openly admitted to all of the pertinent facts, a reopening of the trial would be unnecessary, and would only serve to cause delay and additional legal fees for both parties. (See 1319 Third Ave. Realty Corp. v Chateaubriant Rest. Dev. Co., LLC, 57 AD3d 340 [1st Dept 2008].) If the court were to reopen the trial for the limited purpose of taking testimony regarding the issue of contempt, the testimony would be identical to the admissions made by the defendant on the record of September 15, 2016. Accordingly, plaintiff’s application to reopen the trial is hereby denied as unnecessary. Moreover, to reopen this trial would necessarily require the court to revisit issues of <mask>, counsel fees, equitable distribution, and maintenance in light of the defendant’s contemptuous actions, while serving to provide nothing relevant to the contempt issue currently before the court.


Matthew J. D’Emic, J. *1135In this <mask> prosecution the People concede that defendant’s statement that she cut her husband as he was beating her during a fight over child support was made in violation of her constitutional rights (Miranda v Arizona, 384 US 436 [1966]). Nevertheless, the People requested a hearing to determine the voluntariness of the statement since they seek to impeach the defendant with her words if she testifies at trial.


This case more closely resembles Brumley v. Arkansas Department of Human Services , 2015 Ark. 356, 2015 WL 5895440. In that case, our supreme court held that termination was appropriate despite the child's being placed with an aunt because Brumley, who was incarcerated, lacked essential components of the case plan, including stable housing and employment. Here, Covin had abandoned the children for most of the case, and any progress she made was late in the case plan, as far as twelve months after the filing of the original petition. Covin did not acknowledge either the seriousness of the <mask> she experienced or the physical danger she had placed her children in during her violent outbursts, and she admitted that she had not made an effort to comply with the case plan for the first year of the case.


defendant’s brother’s running shoes. Counsel asserted that presenting evidence on these matters would be distracting, consume undue time, and be prejudicial. Counsel also asserted that the prior acts were insufficiently similar to the charged offenses. In additional oral argument the following day, the prosecutor asserted that the prior acts contextualized what was going on with the family and with defendant being a family member subject to a restraining order. The prosecutor asserted that there would be sufficient evidence to prove the prior acts, regardless of whether defendant was charged for them, and that they were sufficiently similar. Addressing similarity, the prosecutor again asserted that “it starts with the fact that it’s the same location for all these incidences, which is . . . the family home . . . ,” and the same victims. Additionally, defendant entered using the same side garage door. And a restraining order was violated in all of the prior incidents; in all but one of incidents the same restraining order was violated as defendant violated during the charged offenses. Further, defendant left the scene before the police arrived. Defense counsel asserted that prior thefts should not be admissible under section 1109, because that provision addresses prior acts of <mask>. Acknowledging that the Family Code contains a more expansive definition of abuse, counsel argued the trial court still has discretion to preclude the evidence under section 352. Counsel argued the evidence was potentially prejudicial, lacked probative value to prove defendant’s intent when he entered the house, and would consume undue time and confuse the jury. Regarding section 1101, subdivision (b), defense counsel asserted that the similarity of the prior acts was insufficient to warrant admission of the evidence. Counsel further maintained that defendant’s violations of prior restraining orders were not relevant to the issue of knowledge because “the issue isn’t whether he has knowledge of how restraining orders work, it’s whether he had knowledge of this particular restraining order” which counsel stated was issued March 2017.


On April 7, 2017, defendant filed a motion to reduce the offense to a misdemeanor and for termination of her probation. Defendant alleged she had completed a 52-week <mask> program, had been on probation for approximately 15 months with no probation violations, and had no outstanding balance owed to the court. The People opposed the motion. At the hearing on the motion, the court indicated it would "give everybody my tentative. I think [defense counsel] knows what's coming. Based on the short length of probation, and because I believe [section] 1203.097 requires three years of probation, I don't believe the Court has jurisdiction to terminate probation early when the statute prescribes a minimum length of probation. [¶] I've invited anybody to brief me on this issue, but I don't think you are going to find cases because I could not find one stating one way or the other."


At the detention hearing, the court found a prima facie case for jurisdiction over the children under section 300. The court ordered the children removed from both parents and released to mother. The court also ordered monitored visitation for father. II. Jurisdiction/disposition Report DCFS filed a jurisdiction/disposition report on January 29, 2021. When DCFS spoke with mother on January 15, 2021, she confirmed that there had been <mask> with father. Mother stated: “He beat me when I was pregnant, he beat me in front of the kids.” Mother also stated that she tried to prevent father from hitting the children, but he then hit her. She stated that father hit her in the face, knocked her down, and choked her. When asked how often the abuse occurred, she stated it occurred “randomly” and with increasing frequency. Mother told the DCFS investigator (DI) that she separated from father in 2019, but let father visit the children in her home, where he “kept being abusive.” Regarding marijuana use, mother stated that she and father used to smoke when they were together, but never did so in front of the children. She reported that the previous day, father was video chatting with the children and visibly smoking marijuana during the chat. Mother sent the DI a video showing father smoking a joint while on video chat with the children. When the DI spoke with father, he admitted to “a partial factor” regarding the allegations of domestic violence, stating that he never hit mother, but he had pushed her and they would verbally argue. When asked about the pushing, father stated, “every time I ever touched her it was defense, I would never just attack her.” He claimed that the children were not present for


Dawn Tish, investigator for the Missouri Department of Social Services, Children's Division, testified regarding a March 10, 2017, investigation into an allegation Sibling was being abused in Father's home.6 Tish interviewed Father who denied Sibling was being abused in his home. Father admitted to <mask> with Child's Mother, however, and alleged Child's Mother was the aggressor. Father confirmed that on one occasion Child's Mother hit him in the face with a frying pan, breaking his nose. He confirmed Sibling *614and Child were present when domestic violence occurred within his home; Father would try to lead Child's Mother to another part of the home in these instances. Father admitted to one incident wherein he was deemed the aggressor. He reported that during an argument he became frustrated and threw a cup. The cup bounced off of a mattress and hit Child's Mother in the face; Father was arrested. Father told Tish that the argument started because he thought Child's Mother too strictly disciplined the children.7 Tish testified that Child's Mother "may have had some bruising on her face when I saw her." Father also admitted to marijuana use.


*394Mr. Blue’s history of <mask> which occurred during the period of time he resided with Ms. Jones presents further extraordinary circumstances. In addition to the 1991 convictions arising out of his assault upon Ms. Jones and his violation of the temporary order of protection, there is evidence that Mr. Blue often assaulted his wife, resulting in physical injury to her. While Mr. Blue has sought to minimize the severity of these incidents, he has not denied that they occurred.


. See, Walker, The Battered Woman (1979); but see, Digirolamo, Myths and Misconceptions About <mask>, 16 Pace L Rev 41 (1995), and Toffel, Crazy Women, Unharmed Men, and Evil Children: Confronting the Myths About Battered People Who Kill Their Abusers, and the Argument for Extending Battered Syndrome Self-Defenses to All Victims of Domestic Violence, 70 S Cal L Rev 337 (1996).


the social worker that he had a parenting class enrollment appointment the following day. On December 3, 2020, father informed the social worker that he was enrolling in a parenting class that day after work. Father alleged mother is vindictive and made false claims about him because she is unhappy that he was awarded unsupervised, weekend visits. When asked about his criminal arrests and allegations of <mask> and drug use, father stated he is a different person. He acknowledged his prior use of cocaine and his past DUI but denied the domestic violence allegations. Father’s criminal history consists of arrests for various crimes and a DUI conviction.


9. a substantial probability C.P. could be placed in his home by the 12-month review hearing. Consequently, he failed to raise a claim of reversible error. Therefore, his petition does not comply with rules 8.450−8.452 and is inadequate for appellate review. Even if we were to independently review the record for possible error, we would affirm the juvenile court’s rulings. C.P. was removed from the parents mainly because of their unresolved methamphetamine abuse. They had recently failed to reunify with C.P.’s sibling because of their drug use. In addition, mother had already lost custody of another child to a legal guardianship because of her drug use. Nevertheless, the juvenile court gave the parents an opportunity to reunify with C.P. by providing them drug treatment as well as services to address their <mask>. However, they continued to use methamphetamine and made minimal overall progress in completing their case plan requirements. On that evidence, the juvenile court properly found C.P. could not be returned to the parents’ custody without subjecting her to a substantial risk of detriment. Further given the parents’ lack of progress up to that point, there was no reason for the juvenile court to believe they could safely parent C.P. in the time remaining before the juvenile court would conduct a 12-month review hearing. Our calculation that the 12-month period would fall on March 23 rather than February 25, 2022 (see fn. 4), does not change our opinion. We conclude father failed to comply with rules 8.450−8.452 and for that reason dismiss his writ petition. We also deny his request for a stay of the section 366.26 hearing.


The court rejects petitioner’s arguments that the new statute is “punitive” or an ex post facto measure creating a new sanction for petitioner’s criminal act. As stated earlier, visitation with his son is not solely Mr. R’s “right”. Visitation is a right jointly shared by parent and child, intended to benefit both. Nevertheless, it is the child’s interest that is paramount and it is the child’s interest that the new legislation addresses. The Legislature has twice demonstrated its concern for the impact on children of acts of <mask> inflicted by one parent against the other, first in the 1996 amendments, and now in chapter 150. These laws reflect a public policy determination that children are to be protected from exposure to domestic violence, and as such they may be considered remedial in nature.


Similarly, father points to the two sentences C.Q. spends distinguishing B.S. to support the proposition that evidence of physical abuse is required to sustain a restraining order under section 213.5. (See C.Q. , supra , 219 Cal.App.4th at p. 365, 161 Cal.Rptr.3d 719, distinguishing B.S. , supra , 172 Cal.App.4th at p. 194, 90 Cal.Rptr.3d 810.) We do not read B.S. so narrowly. Though the infant in B.S. was indeed *642in physical jeopardy, that case was premised on father's general inability to *999control himself during violent outbursts-of which throwing the mother onto the child was but one example. ( B.S. , at p. 194, 90 Cal.Rptr.3d 810.) The court also emphasized that father had committed repeated acts of <mask>, and that "[d]uring previous incidents, he had torn a door off its hinges and knocked a hole in the wall." ( Ibid . ) The court explicitly held that physical harm, though sufficient, was not required. ( Id. at p. 193, 90 Cal.Rptr.3d 810.)


Under the within undisputed facts and circumstances, the penalty imposed by respondents of dismissal of petitioner, a victim of <mask> (of which respondents were notified on numerous occasions) and a caregiver of five children (some of whom suffer from special needs) and, given that respondents based their penalty of termination, in part, on absences attributed to her status as a domestic violence victim (including Family Court appearance on an order of protection) and on absences prior to the disclosure of her domestic violence status, which indisputably were attributed to a documented temporary disability, such actions are indeed so disproportionate to the alleged misconduct, the harm to the agency, or the general public welfare, such that a lesser penalty, other than termination, is warranted. Further, such penalty is especially shocking in that respondents were obligated to affirmatively assist their employees who were being abused, in accordance with their own policy and procedures outlined in their Direc*805tive, which was clearly not followed. (Respondents’ exhibit 21.) To the extent that respondents have alleged any unexplained absences, or violations of rules by petitioner, respondents have not maintained that termination would nonetheless have been the appropriate penalty, absent respondents’ inappropriate and discriminatory placement of petitioner in the “chronic absence” category, based on her temporary disability, or their discriminatory conduct based on petitioner’s domestic violence status. In any event, the extreme penalty of termination would be shockingly disproportionate to any remaining alleged infractions, even if substantiated, given respondents’ bad faith and petitioner’s personal situation. (See Matter of Diefenthaler v Klein, 27 AD3d 347 [1st Dept 2006]; Matter of Lagala v New York City Police Dept., 286 AD2d 205 [1st Dept 2001], lv denied 97 NY2d 605 [2001]; Matter of Mauro v Walcott, 115 AD3d 547 [1st Dept 2014]; Matter of Brito v Walcott, 115 AD3d 544 [1st Dept 2014] .)28


Applying these rules in a <mask> protective order context, Fregoso held that the court will affirm unless " ' "the trial court exceeded the bounds of reason." ' " ( Fregoso, supra, 5 Cal.App.5th at p. 702, 209 Cal.Rptr.3d 884, citing Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420, 67 Cal.Rptr.3d 317.) And it went on, " ' "When two or more inferences can reasonably be deduced *624from the facts, the reviewing court has no authority to substitute its decision for that of the trial court," ' " but instead must "accept as true all evidence tending to establish the correctness of the trial court's findings, resolving every conflict in the evidence in favor of the judgment." ( Ibid. , citing Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143, 167 Cal.Rptr.3d 664.)


As discussed above, on January 7, 1996, Officer Cross was dispatched to the Kerley residence on a call of <mask>. She arrived approximately 14 minutes after the call went out and found that Dever had been placed in one patrol car and Kerley in another. Officer Cross interviewed both. When asked to describe Dever's demeanor, Officer Cross testified that Dever's makeup was smeared and it looked like she had been crying. Her eyes showed some blackening and her right wrist and ankle were turning red or beginning to swell. Dever told Officer Cross that Kerley had stomped on her right hand and foot and kicked her in the eye. When Dever tried to call 911, Kerley said he would kill Dever if anyone from the police department came to the house.


advance report that a burglary suspect was armed and they were not apparently, much less actually, threatened with a weapon. Id. at 602–03. Without provocation, those officers shot a non-danger- ous suspect. Id. The district court reasoned that what the Lundgren officers encountered was different from what happened here, where officers responded at night to a shots-fired <mask> call and were confronted with an armed man facing them and raising a pistol. And, the court explained, this case is materially different from Perez v. Suszczynski, 809 F.3d 1213 (11th Cir. 2016), where an officer shot a man who was subdued, unarmed, and not resisting arrest. Id. at 1222. After concluding there was no relevant decisional law clearly establishing that Snook violated David Powell’s Fourth Amendment right to be free from excessive force, the district court considered whether Snook’s conduct “was so obviously at the very core of what the Fourth Amendment prohibits that any officer would know the conduct was illegal.” In concluding that it was not, the court reasoned that the “decisive factor” was that David Powell “carried a gun in his right hand and began raising that gun in front of a police officer” and while facing “in the direction of the officer.” The court granted summary judgment on qualified im- munity grounds because it was not clearly established that the use of deadly force in these specific circumstances violated the Fourth Amendment. USCA11 Case: 19-13340 Date Filed: 02/08/2022 Page: 12 of 23


Davila and her children are protected persons under the DVPA. (§ 6211, subds. (a) [a spouse], (e) [a child of a party].) The trial court may issue a DVRO to prevent <mask> based upon reasonable proof of a past act or acts of abuse. (§ 6300; Nevarez, supra , 227 Cal.App.4th at p. 782, 174 Cal.Rptr.3d 219.) Substantial evidence supports the trial court's finding that Mejia committed prior acts of domestic abuse against both Davila and her children. Mejia, by holding a gun to Davila's head and threatening to kill her, committed domestic abuse by placing Davila "in reasonable apprehension of imminent serious bodily injury." (§ 6203, subd. (a)(3).) Mejia's conduct toward Davila's children, including on November 2, 2016 jumping over the gate to the family home, knocking on the windows and doors, and threatening physically to abuse the children if they did not open the door, similarly constituted *229domestic abuse. (See §§ 6203, subd. (a)(3) & (4), 6320, subd. (a) [abuse includes engaging in stalking, threatening, or harassing conduct].)


Government entities at all levels are finally beginning to address the problem. There is now a National <mask> Hotline (800-799-SAFE). The Social Security Administration, recognizing that a victim must sometimes even change identity to attain a safe environment, has established a procedure to issue new Social Security numbers to victims of domestic violence and mounted a public awareness campaign stressing the importance of victims developing safety plans. At the state and municipal levels, various legislation has been enacted to protect domestic abuse victims and ease their transition to safety.


The Georgia Court of Appeals concluded that this evidence was properly admitted. The court noted that “[i]n cases of do*854mestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment” (supra, 232 Ga App, at 294, 501 SE2d, at 527). Stated otherwise, a prior act of <mask> can show the defendant’s actual course of conduct in reacting to anger in such a relationship.


*724In March 2014, DPSS received a referral alleging the grandparents were neglecting D.H. According to the referral, "drug activity takes place in the garage of the home," where father and his girlfriend reportedly resided. The referral also reported father had a history of drug-related arrests and <mask>. When the social worker interviewed the grandparents, they said father had been living in their garage "off and on." The social worker asked the grandparents to drug test. Grandfather tested negative. Grandmother could not produce enough saliva to test, and ultimately admitted she had taken methamphetamine the night before. She said father's girlfriend had given it to her and it was the first time she had ever taken the drug. The social worker asked grandfather if he knew about grandmother's drug use and he replied, "I plead the fifth on that."


Both Ivers and Cranford are distinguishable from the instant case. Here, JP, NP, and JH had been diagnosed with PTSD from the <mask> they were exposed to and from the severe neglect they experienced in their parents' custody. Neither the father in Ivers nor the parents in Cranford had ever subjected the children to an abusive or traumatic household, whereas the Hopfners had exposed the children to domestic abuse a "drug lifestyle," and "a living hell." Moreover, sufficient evidence supports the circuit court's potential-harm finding. The children's counselors, the CASA volunteer, the Department, and both Robin and Philip testified at the hearing that none of the children were ready to be returned to the Hopfners' custody because of the lingering anxiety-related issues stemming from the trauma they suffered while in their parents' care. The CASA volunteer and the children's counselors also noted that the three children were bonded to each other. Philip characterizes the circuit court's acknowledgment of this strong, meaningful bond between the siblings and its reliance on this bond as support for the potential-harm finding as erroneously viewing the children as an "amorphous group." In fact, the court relied on testimony from several witnesses that the children were extremely bonded due to the trauma they had suffered, and to separate them would be detrimental to their emotional health.


The home environment assessment and the permanency assessment involve the collection and review of a comprehensive amount of personal information. A family home environment assessment includes a criminal record clearance for each applicant and all adults residing in or regularly present in the home (denizen), consideration of any substantiated child abuse allegation against the applicant and any denizens, and a home and grounds evaluation. (§ 16519.5, subd. (d)(2).) A permanency assessment includes a psychosocial assessment of an applicant and the results of a risk assessment. The risk assessment includes, but is not limited to, the applicant's physical and mental health, alcohol and other substance abuse, family and <mask>, and the applicant's understanding of children's needs and development, particularly children who have been victims of child abuse and neglect, and the capacity to meet those needs. A successful applicant must also demonstrate the ability to ensure the stability and financial security of the family. (Id. , subds. (c)(1) & (d)(3).)


Moreover, even if we were to agree that Megown's acts toward Maria did not constitute <mask> within the meaning of section 1109 and that this evidence was also inadmissible as to the counts pertaining to Maria under section 1101(b), we would not reverse. Error in admitting evidence of a defendant's prior acts of domestic violence under sections 1109 or 1101 is subject to the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 ( Watson ). (See People v. Ogle (2010) 185 Cal.App.4th 1138, 1145, 110 Cal.Rptr.3d 913 [any error in admitting uncharged act of domestic violence was harmless under Watson ]; People v. Welch (1999) 20 Cal.4th 701, 750, 85 Cal.Rptr.2d 203, 976 P.2d 754 [admission of evidence prohibited by § 1101 is reviewed under the Watson harmless error standard].) Under the Watson test, the trial court's judgment may be overturned on appeal only if the defendant shows "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." ( Watson , at p. 836, 299 P.2d 243.)


We do not suggest minor's counsel should routinely review RFA information in all cases. Here, the Agency's inability to place Charlotte in the home of relatives who had previously been approved to care for her would have raised sufficient concerns to require further inquiry and investigation by minor's counsel even if information about the relative's past methamphetamine use and <mask> had not inadvertently been disclosed.


section 300.3 Three of these allegations involved father’s conduct.4 Count a-1 alleged that mother and father’s history of <mask> placed Katherine at risk of physical harm inflicted nonaccidentally by her parents. Count b-2 repeated the domestic violence allegations, contending that such violence posed a substantial risk that Katherine would be harmed as a result of her parents’ failure to adequately protect her. Finally, count b-3 alleged that father’s substance abuse issues rendered him unable to care for Katherine, placing her at risk of serious physical harm. Father initially denied that he ever fought with or attacked mother in Katherine’s presence. He also denied ever using substances in Katherine’s presence. On July 27, 2016, however, at the jurisdictional hearing, both parents pled no contest to the (amended) petition. Accordingly, the juvenile court sustained counts a-1 and b-3, as well as another count related to mother’s substance abuse. Father received reunification services and monitored weekly visitation. C. Father’s Resumption of Custody On September 21, 2017, the juvenile court found that father had made substantial progress and granted him unmonitored visitation.


Tish testified that, although many of the <mask> incidents between the couple were unreported, the Independence Police Department had been called to the home on four occasions. When asked if Tish had concerns regarding Father's ability to protect his children, she testified: "He was very reluctant to be the enforcer.... He stated that he was afraid that [Child's Mother] would retaliate causing damage to either himself or his property." Tish was most concerned with Father's ability to protect Child because Sibling was only at Father's home on limited weekends; Child was at Father's home all of the time.


understanding of the case . . . .’ ” (People v. Blacksher (2011) 52 Cal.4th 769, 845-846, quoting People v. Carter (2003) 30 Cal.4th 1166, 1219.) “ ‘We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court “fully and fairly instructed on the applicable law.” ’ ” (People v. Turner (2019) 37 Cal.App.5th 882, 887.) “We consider the instructions as a whole as well as the entire record of trial, including the arguments of counsel. [Citation.] If reasonably possible, instructions are interpreted to support the judgment rather than defeat it.” (People v. McPheeters (2013) 218 Cal.App.4th 124, 132.) D. Analysis We have concluded that section 1109 incorporates the Family Code definition of abuse. Thus, the trial court did not err in including the legally correct and applicable Family Code definition of abuse in its modified CALCRIM No. 852A instruction. Defendant asserts that CALCRIM No. 852A, as given, was erroneous because it allowed the jury to infer from prior acts of <mask> his propensity to commit burglary on an intent to steal theory, which, according to defendant, is not an act of domestic violence. However, as we have pointed out, breaking into the victims’ home to steal property can result in a disturbance of the victims’ peace. Disturbing the peace was included in the court’s modified CALCRIM No. 852A instruction. We conclude the instruction was not erroneous. 15 E. Due Process Violation


Here the commissioner interjected that petitioner did not have a history of violence -an observation impossible to reconcile with the history that petitioner related and was documented in his records, as was later confirmed when the deputy commissioner asked petitioner about "all this raising hell in jail ... [a]ssaulting police officers ... the records saturated with it, right?" Petitioner acknowledged he had not been sent to jail for violence prior to the life crime, but explained again that this was what he learned from the <mask> he grew up with and, later, from his older criminal associates telling him, "if you pull a gun out, you gotta use it. If you fight with somebody, you gotta make sure you win." Asked what he proved by shooting Ellingsen, petitioner replied that he proved to Grant that "I can do what you did too," that "I can get everybody up out of this situation" and that *977"it was nothing for me to ... shoot into somebody car and then later on when everybody find out that I murdered somebody, hey, I murdered ... this is me. I did that."


Charlotte argues the juvenile court violated her due process rights by limiting her ability to cross-examine witnesses and present evidence. She contends the court erred by securing a public defender for Uncle and allowing him to plead the Fifth Amendment; excluding the <mask> restraining order and/or attached documentation on hearsay grounds; sustaining objections to questions concerning the incident of domestic violence between Uncle and his father and whether Uncle participated in domestic violence treatment or substance abuse testing; and by excluding testimony of RFA social workers concerning information they obtained during the relatives' RFA process, their opinion about Uncle's suitability to care for Charlotte, and whether there was any current *119risk to Charlotte in Aunt and Uncle's home.


As an initial matter, we conclude that the trial court erred to the extent it based termination on respondent’s involvement in <mask> because the record fails to establish that respondent was a perpetrator. The fact that respondent was or is a victim of domestic violence may not be relied upon as a basis for terminating parental rights. In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011). This is not to say that being a victim of domestic violence necessarily precludes termination of parental rights. To the extent such a victim is also a perpetrator, the commission of domestic violence is an appropriate concern. Similarly, termination may be


Petitioner also maintains that respondents admit in their verified answer that they based the decision to terminate unlawfully, in part, on petitioner’s past disability-related absences for which she had several surgeries, and from which she ultimately fully recovered. Petitioner claims that such admission by respondents, in addition to petitioner’s status as a victim of <mask>, were the true motivating factors for petitioner’s unlawful termination, and thus were discriminatory and violative of both Administrative Code §§ 8-107 (1) (a) (barring disability discrimination) and 8-107.1 (2) (barring discrimination against a domestic violence victim).11


The statements Dever yelled to Officer McCoy as she jumped onto him and held on for dear life-" 'Help me, help me, save me, save me, he did this' "-were non-testimonial. Again, the officers were called to a home on a report of <mask>. They had no idea what to expect. When Officer McCoy knocked on the door, Dever opened the door. Kerley was in the house behind her. Dever had two black eyes and was crying and shaking uncontrollably. Before the officers could ask any questions, Dever jumped onto Officer McCoy, wrapping her arms and legs around him. Officer McCoy could not pry her free, so he had to walk with her latched onto him to a patrol car in front of the house before he could release her.


3. school on time. Ahmed admitted being arrested twice for <mask> against Alisha, but there was never a trial; in the past five years, police came to their home several other times because he and Alisha were physically fighting. Ahmed produced an exchange of text messages between himself and Alisha from November 9, 2019, when Alisha lived in Stanislaus County and had custody of the children and H. 3 In the text messages, Alisha asked Ahmed for support because H. was threatening her; Alisha stated H. told her to watch her back and she should not sleep. Alisha texted Ahmed that H. yelled at her and pushed her hard twice, and a few months before, H. threw Alisha’s medicines away and told Alisha she wanted her to die. Alisha also texted that H. was standing in Alisha’s bedroom doorway, staring at her with clenched fists, and H. yelled that Alisha should hit her so Alisha would go to jail. During this, Alisha laid on her bed with the lights off. Alisha stated H. threatened to kill her four times that night, and H. needed to either go to a mental institution or be arrested. Ahmed questioned Alisha about this incident. She testified that H. was going through a suicidal moment, and she contacted Ahmed for help because she needed a babysitter for the younger children. Alisha said H. threatened to kill her if she sought Ahmed’s help. While Alisha twice sought Ahmed’s help in dealing with H., she claimed H. was doing better. Ahmed also testified about the incident. He was concerned about H. being around the children because she “goes through stages, especially when she’s not taking her treatment where she exhibits very concerning behavior and language in front of the children that would harm them.” During a break in testimony, when the family court was reviewing the exhibits offered by both parties, the family court asked Alisha’s attorney to review the text


From before the minor's birth, the relationship between Mother and Michael was characterized by oppressive <mask>. In January 2013, prior to the minor's first birthday, a criminal protective order issued to protect Mother from Michael. He was arrested for a separate act of domestic violence against her two months later and eventually suffered a misdemeanor conviction. A year later, in April 2014, another restraining order was granted in favor of Mother against Michael. She remained fearful of him long after.


would have obtained a more favorable result if a supplemental report had been prepared. (Dobbins, supra, at p. 182.) 1. The Presentence Report Considering the “criteria affecting probation,” under rule 4.414, the probation officer observed that “[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime appear significantly elevated in seriousness given the large number of violations of the Court’s orders in addition to the sustained and pervasive harassment.” The probation officer “also noted that during these events, [defendant] utilized the Rio Vista Police in March 2019 to escalate the harassment of the victim.” Additionally, the presentence report concluded that defendant “inflicted significant emotional injury upon the victim.” In considering circumstances in aggravation under rule 4.421(b), the probation officer stated that “defendant has engaged in violent conduct that indicates a serious danger to society.” The presentence report continued: “The defendant’s behavior throughout this series of events associated with the instant offense is egregious and indicative of a substantial public safety concern. Though he has a limited history of criminal conduct, it is noted that his one prior was for <mask>, demonstrating a pattern of family violence related behavior that has apparently gone undetected and/or unreported.”6 Further, “[w]hen confronted about his behavior, [defendant] largely minimized his role in the events leading up to his arrest and maintained his narrative that the victim pulled a gun on him in Rio Vista.”


We must agree with the grandparents that the June 6, 2017, order was not final or appealable as it did not finally establish the rights of the parties. As the grandparents argued, the family court's order recognized that the father had not complied with the requirements put in place when the 2015 disposition order was entered. These requirements, which included substance abuse, parenting, and <mask> assessments and services, stable income and housing for six months, and consistent supervised visitation, were all to be accomplished when the father was released from jail. Rather than completing these tasks upon his release as he was ordered to do, the father instead sought a new placement for the child or expanded visitation. Recognizing this, the family court declined to grant any further access to the child until the father had fully complied with its order. The court certainly did not preclude the father from seeking similar or even expanded relief in the future. We are not persuaded that this order is anything other than interlocutory by the father's citation to J.C. v. Commonwealth , 2013 WL 5046582 (No. 2012-CA-001731-ME) (Ky. App. Sept. 13, 2013).


As noted, for nonstrike felony <mask>, the "term otherwise provided as punishment," within the meaning of section 667, subdivision (e)(1), is two, three, or four years. ( § 273.5, subd. (a).) Thus, if no exception or *484disqualifying factor applies, defendant was required to be sentenced to a maximum of eight years (twice the upper term of four years) on his domestic violence conviction. (§§ 667, subd. (e)(1), (e)(2)(C), 273.5, subd. (a).) But if an exception applies, the court was required to *656sentence defendant, as it did, to "an indeterminate term of life imprisonment ...." (§ 667, subd. (e)(2)(A).) The minimum term of defendant's indeterminate term was 25 years.


After considering the parties’ arguments, the trial court made the following ruling: “I have considered the arguments of the parties with respect to this other-acts type of evidence. I’ve read the offers of proof that are contained within the People’s in limine motions and statement of facts. I’ve looked at the way in which it has been delineated and described for purposes of each particular count and the reasons, therefore, and I balanced all of this under Evidence Code Section 352 balancing the probative value of the evidence to be offered for the various purposes with the concerns of substantial prejudice, undue consumption of time, confusion of the issues, et cetera. [¶] I do find that the People should be entitled to introduce this evidence under the various theories for which they have proffered it . . . .” 2. Constitutionality of Evidence Code Sections 1108 and 1109 Simmons argues that Evidence Code sections 1108 and 1109 are unconstitutional and violate principles of due process. We review this claim de novo. (Scott, supra, 3 Cal.App.5th at pp. 1271-1272.) And as we explain, we find that it is without merit. “Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person’s conduct on a specified occasion.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159; Evid. Code, § 1101, subd. (a).) However, the Legislature has created certain exceptions to the prohibition against admitting propensity evidence in cases involving sexual offenses (Evid. Code, § 1108, subd. (a)) and <mask> (id., § 1109, subd. (a)(1)). Simmons acknowledges that the California Supreme Court rejected the argument that Evidence Code section 1108 violates a defendant’s right to due process in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta).12 Falsetta held that “the trial court’s discretion to exclude propensity evidence under [Evidence Code] section 352 saves [Evidence


In May 2015, Austin was charged with several offenses arising out of a <mask> incident involving his girlfriend Lisa H. and an assault on Lisa's adult son Brent M. the following day. He pleaded guilty to a single count, assault by means likely to produce great bodily injury as to Brent ( Pen. Code, § 245, subd. (a)(4) ), and admitted a prior serious felony conviction.1 All remaining counts and allegations were dismissed.


On the day of the hearing when defendant changed his plea, the People filed a 23-page boilerplate memorandum of points and authorities, accompanied by a 12-page declaration from a Sacramento County *184Sheriff's deputy assigned to the Sacramento Valley Hi-Tech Crimes Task Force, in support of the imposition of a probation condition requiring defendant to submit his electronic storage devices, including but not limited to cell phones and computers, to warrantless search and seizure. The boilerplate memorandum explained that the superior court had "developed new language describing search and seizure terms and conditions accompanying grants of probation for certain cases." Essentially, the new language added "electronic storage devices" to the standard condition permitting warrantless probation searches, which already permitted searches of a probationer's "person, place, property, automobile, ... and any object under [the probationer's] control."2 According to the memorandum, the probation department was "recommending the imposition of this new language in cases, such as this, where there is a nexus between the grant of probation and the defendant's use of an electronic device." Being a boilerplate document, however, the memorandum did not provide any details relating to this specific case. Instead, the memorandum asserted in a footnote that the new search condition "should be imposed in cases where there has been a demonstrated connection between the type of criminal conduct involved and the use of electronic devices and/or [where the condition] bears a reasonable relation to future criminality, such as the following: drug sales/transportation; fraud, identity theft, financial crimes; sex offenses; human trafficking, pimping and pandering; <mask> ; weapons-related offenses; gang enhancements and gang membership; and any other case where a defendant used an electronic device during the current offense or in a previous crime." (Italics added.)


[O]n September 2, 2015, in Spencer County, Kentucky, ... [the child] was exposed to a <mask> altercation between his father ... and great uncle ... and PGF [paternal grandfather].... PGF filed an EPO and the police were contacted and [the father] was arrested for assault 4th degree. PGF reports in the EPO and the police report in the JC-3 that [the father] was under the influence of drugs at the time of the altercation. PGF requested that the EPO be dismissed but [the father] was found guilty of the assault charge. [The father] admitted there was an altercation but minimized the incident. [The child] shared with DCBS that the altercation scared him and that his father scared him with what he had done to PGF and great uncle. [The father] was in a caretaker role of [the child] at the time of the altercation. The family court held a temporary removal hearing on September 15, 2015, during which the father stipulated to reasonable grounds for the child's removal, and the court placed the child with the mother. The court ordered both parents to comply with several terms. The mother was to obtain counseling for the child, cooperate with the Department of Community Based Services (DCBS) and case planning, send the child to school, and have the child present for all supervised visitations. The *157father's terms were more extensive. He was to undergo drug testing as requested, obtain a drug assessment and follow all recommendations, attend drug/chemical dependency counseling, obtain a perpetrator anger management assessment and follow all recommendations, cooperate with DCBS and case planning, and have supervised visitation with an adult approved by DCBS. The court continued the matter for further proceedings.


. See, Walker, The Battered Woman (1979); but see, Digirolamo, Myths and Misconceptions About <mask>, 16 Pace L Rev 41 (1995), and Toffel, Crazy Women, Unharmed Men, and Evil Children: Confronting the Myths About Battered People Who Kill Their Abusers, and the Argument for Extending Battered Syndrome Self-Defenses to All Victims of Domestic Violence, 70 S Cal L Rev 337 (1996).


Domestic Relations Law § 252 gives very little substantive law and guidance for the procedural devices to be utilized when a party’s motion for a temporary order of protection is contested in a pending divorce proceeding. Subdivision (4) of Domestic Relations Law § 252 states that a temporary order of protection may be issued upon the court’s own motion or, where a motion for such relief is made to the court, for good cause shown. This portion of the statute seems to contemplate the issuance of a temporary order of protection upon an ex parte motion since it precludes the provisions of subdivision (4) of Domestic Relations Law § 252, applicable to orders of protection, requiring a court finding on the record. However, the court can find guidance under the statutory provisions of article 8 of the Family Court Act relating to temporary orders of protection involving allegations of <mask>, which are far more extensive and instructive regarding the court procedures and substantive law for the issuance of temporary orders of protection (Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C240:30; see, Roofeh v Roofeh, 138 Misc 2d 889; Matter of Arlyn T. v Harold T., 107 Misc 2d 672).


In early 2018, mother filed a section 388 petition seeking to have C.M. returned to her custody. The Department filed a response, acknowledging mother's participation in anger management classes and individual counseling. The <mask> program mother completed was only a 10-week domestic violence awareness course, not a 52-week domestic violence batterer's course as ordered by the court. The Department had not yet received mother's psychological evaluation report. According to the Department's report, Mother stated she was bonded to the children and that, before detention, C.M. had no contact with father. Mother expressed concern about stability and consistency, noting she took the children to church weekly. The Department expressed concern about whether mother was able to take responsibility for her actions, noting she had not acknowledged fault for the detention of her children, and was quick to blame others. Mother was unable to tell the social worker what she had learned or what had changed since the children were detained. Mother also discussed case issues with C.M. during visits, telling him he *394would be living with mother and would not see father, reportedly causing C.M. to feel sad and scared. Based on the lack of evidence that mother had resolved the issues leading to the dependency case, along with her failure to complete a 52-week domestic violence batterer's program and her pending psychological evaluation, the Department recommended that the court deny mother's section 388 petition.


On April 3, 2017, Appellant filed an ex parte request for a restraining order against Ex-Husband in her pending dissolution action. In her declaration in support of the request, Appellant described abuse by Ex-Husband, including physical beatings *499(documented with photographs), verbal threats of violence, and personal insults. Appellant testified that Ex-Husband owned a firearm and had a previous conviction for <mask>.


While the record supports that respondent and AN were bonded, the record also supports that the bond was not healthy for AN. Indeed, in the six months before termination, AN began to bite and pinch other children and her “caregivers,” and AN engaged in attention-seeking behaviors after parenting time visitations. AN’s hair also began to thin, and AN was “clingy,” “more agitated, [and] more easily upset” after visitations. Respondent was never permitted to have unsupervised parenting time with AN, who had been out of her care for nearly two years at the time of termination. This was based in part on respondent being criminally charged with <mask> against AN’s father and entering into a relationship with a man who was on the Central Registry. Thus, although respondent shared a bond with AN at the time of termination, the record supports that the bond was not healthy for AN. See In re CR, 250 Mich App 185, 196-197; 646 NW2d 506 (2002), overruled on other grounds by In re Sanders, 495 Mich 394 (2014) (holding that the fact that there was a “serious dispute” on the record concerning whether the respondent


Even New York’s judiciary has also joined the bandwagon. Formerly, the plight of victims of domestic abuse was generally addressed by the courts of this state in three disjointed contexts: Family Court proceedings, criminal actions and matrimoniáis. In a recent initiative, the Chief Judge of this state established special integrated <mask> courts, manned by specially trained personnel, with the explicit mission “to promote justice and protect the rights of all litigants while providing a comprehensive approach to case resolution, increasing offender accountability, ensuring victim safety, integrating the delivery of social services, and eliminating inconsistent and conflicting judicial orders” (Integrated Domestic Violence Courts, Mission Statement, cached at <http://www.courts.state.ny.us/reporter/ webdocs/Integrated_Domestic_Violence_Courts.htm>). Following the example set by our Chief Judge, New York State courts are in general becoming more aware and sensitive to domestic violence issues. Indeed, the Court of Appeals removed a town and village justice from office because of his insensitivity to victims of domestic violence (Matter of Romano, 93 NY2d 161 [1999]).


Finally, Kerley argues that, even if the diary entries were admissible for impeachment purposes, they were unduly prejudicial because of the danger that the jury would use the diary entries to conclude that Dever's death resulted from the type of acts that Mandee wrote about, and that the jury would use the entries to corroborate the uncharged acts of <mask>. We disagree. As discussed above, the jury was twice instructed not to consider the diary entries for the truth of the matters stated therein and to use them only for the purpose of evaluating Mandee's testimony. We presume that the jury followed these instructions and did not consider the diary entries for any impermissible purpose. (See People v. Wilson (2008) 44 Cal.4th 758, 803, 80 Cal.Rptr.3d 211, 187 P.3d 1041 ["We of course presume 'that jurors understand and follow the court's instructions' "].)


*821We may not conclude, on the information before us, that the Dominican court knew about or considered the <mask> in this family at the time the custody determination was made. Nor does it appear that the Dominican court is now in a strong position to protect the respondent and the children from domestic violence or abuse in the future.


Matthew J. D’Emic, J. *1135In this <mask> prosecution the People concede that defendant’s statement that she cut her husband as he was beating her during a fight over child support was made in violation of her constitutional rights (Miranda v Arizona, 384 US 436 [1966]). Nevertheless, the People requested a hearing to determine the voluntariness of the statement since they seek to impeach the defendant with her words if she testifies at trial.


. E.g., Price v Viking Penguin, 881d 1426, 1438 (8th Cir 1989), cert denied 493 US 1036 (1990) (statement that embodies "a qualitative judgment [of a law enforcement] agency’s motivation, effort and effectiveness * * * is unverifiable” and therefore protected as opinion); Janklow v Newsweek, Inc., 788d 1300 (8th Cir) (en banc), cert denied 479 US 883 (1986) (Janklow II) (statement that plaintiff, Governor of South Dakota, had, while Attorney General, been prosecuting Dennis Banks because Banks had brought assault charges against plaintiff, held not actionable); King v Globe Newspaper Co., 400 Mass 705, 716, 512 NE2d 241, 248 (1987), cert denied 485 US 940 (1988) (assertion that plaintiff Governor’s position on racetrack legislation was motivated by personal loyalty held not actionable; "the First Amendment protects as opinion discussion about the motives of public officials”); Disen v Hessburg, 455 NW2d 446 (Minn 1990), cert denied 498 US 1119 (1991) (statements questioning County Attorney’s commitment to prosecuting <mask> cases held not actionable opinion despite allegedly false factual implications); Okun v Superior Ct., 29 Cal 3d 442, 451, 175 Cal Rptr 157, 162, 629 P2d 1369, 1374, cert denied sub nom. Maple Props. v Superior Ct., 454 US 1099 (1981) ("A statement regarding (1) a public official’s business, social, or political affiliations, and (2) how those affiliations seem reflected in decision-making” is not actionable; "[a] contrary ruling would inhibit a significant segment of the discourse vital in a democracy”); Gregory v McDonnell Douglas Corp., 17 Cal 3d 596, 604, 131 Cal Rptr 641, 646, 552 P2d 425, 430 (1976) ("[publications otherwise protected under the First Amendment do not lose their protection because they contain statements which attribute improper motives” to a public official or union official); Grillo v Smith, 144 Cal App 3d 868, 875, 193 Cal Rptr 414, 419 (1983) (statement that "judge * * * 'changed his mind under pressure from his peers’ * * * merely express the [newspaper’s] opinion of what his actions and motivations were. As such they constitute nothing 'more than a constitutionally protected expression of severe disapproval of noncriminal conduct’ ”); Marchiondo v New Mexico State Tribune Co., 98 NM 282, 648 P2d 321 (1981) (statement that gubernatorial candidate was likely or inclined to appoint cronies held actionable opinion).


Finally, the court notes the substantial prejudice which would inure to the defendant should this plea be vacated, notwithstanding the People’s new offer that defendant plea to the crime of attempted <mask> in the second degree under this indictment. Unlike the crime to which defendant pleaded, attempted burglary in the second degree is a violent felony offense as per Penal Law § 70.02. The stigma that attaches to a violent crime and the potential future sentencing ramifications under Penal Law §§ 70.04 and 70.08 are far greater when dealing with "violent felonies” as opposed to nonviolent *896ones such as the one to which defendant pleaded under the SCI. (See, Gerstein v Pugh, 420 US 103.)


In this regard, we note Smith's statement in Johns's presence meets even the stricter standard adopted by the dissenters in Grimes. In implicating Mitchell in Kelley's death, Smith necessarily placed herself at the scene of the <mask> and homicide and, consequently, implicated herself in the murder as well. Thus, unlike the circumstances discussed in Grimes , here there is no credible basis upon which to argue that Smith's statements were in any sense collateral. Rather, as in Gordon , Wilson and Greenberger , those portions of Smith's statements that implicated her in the murder were inextricably intertwined with the portions that implicated Mitchell. There was simply no way in which her statements about being at the scene of the burglary, robbery and murder in which she was a relatively lesser participant would make any sense without reference to the major actors and, in particular, her boyfriend.


On January 15, 1976, at the end of a Christmas visit, Johnson was arrested for attempted first degree robbery. On March 8, 1976 he was arrested for first degree robbery and less than one week later (on March 14) for attempted robbery, possession of drugs and assault on a police officer. On June 14, 1976 he was arrested for third degree <mask>, petit larceny, criminal trespass, possession of stolen property, criminal mischief and attempted burglary. On September 27, 1976, Johnson did not return from a visit and he was declared AWOL, thereby calling forth a warrant for his arrest.


As an initial matter, we address the State's contention that Collins's Rule 37.1 petition was untimely filed. In February 2013, a jury convicted Collins of one count of commercial <mask>, one count of theft of property over $2,500, one count of Class Y felony arson, and two counts of Class C felony arson. The Arkansas Court of Appeals affirmed three of Collins's convictions but reversed the conviction for Class Y felony arson. Collins v. State , 2014 Ark. App. 551, 444 S.W.3d 889. This court denied the parties' cross-motions for review, and the mandate was issued on January 22, 2015. Accordingly, Collins was resentenced and a second amended sentencing order was entered by the trial court on February 20, 2015. Thereafter, Collins filed a timely pro se Rule 37.1 petition on May 13, 2015. See Ark. R. Crim. P. 37.2(c)(iv) (2013) (stating in pertinent part that if no appeal is taken from a resentencing order the petition must be filed within ninety days of the entry of the judgment). Here, no appeal was taken from the resentencing order filed on February 20, 2015, and Collins's Rule 37.1 petition was due on May 21, 2015. Therefore, his petition filed on May 13, 2015, was timely.


The new shoplifting statute directs that "[n]o person who is charged with shoplifting may also be charged with <mask> or theft of the same property." (§ 459.5, subd. (b).) As the Supreme Court held, "the phrase 'the same property' confirms that multiple burglary charges may not be based on entry with intent to commit different forms of theft offenses if the property intended to be stolen is the same property at issue in the shoplifting charge." ( Gonzales , supra , 2 Cal.5th at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Robbery is a "theft offense[ ]," as the Supreme Court used that term in Gonzales. (See People v. Turner (1990) 50 Cal.3d 668, 692, 268 Cal.Rptr. 706, 789 P.2d 887 [" 'robbery was the only available theft offense' "];


The defendant has at least two prior convictions for felonies which would classify him as a predicate felon (Penal Law, § 70.06). They are a 1972 charge of criminal possession of a dangerous drug in the fourth degree to which he pleaded guilty and was sentenced on May 1, 1973 to five years’ probation and sent to an institution under the control of the Narcotic’s Addict Control Commission and a 1970 charge of <mask> in the third degree for which he was sentenced for attempted burglary in the third degree on October 9, 1970 and sent to Suffolk County Jail for a period of one year. Other *168convictions include five other burglaries, a robbery, possession of a dangerous weapon and another drug charge.


Sometime during January 21, a call was received by Patrolman B of the Fourth Squad Detectives from defendant’s mother seeking help for him. Defendant had, at this point, been taken to Brookhaven Memorial Hospital along with Patricia V after an automobile accident which occurred while they were en route to a motel. It should be noted that defendant had become B’s informant after B had arrested defendant on December 8,1980, as the result of a <mask> complaint made by the girlfriend’s husband. After this earlier arrest, defendant had been advised by B to get a lawyer, but defendant insisted it was “all bullshit. * * * going to Family Court.” B, learning that homicide was interested in Lucarano, called Me C and informed him that defendant wanted to talk to B about pressing charges against his girlfriend, because she had forced Valium on the defendant. It was ultimately agreed by Me C and B that they would go to the hospital to talk to defendant. Prior to leaving, Me C encountered Assistant District Attorney S, Chief of the Major Offense Bureau, who was at homicide on an unrelated matter. S, after learning from Me C or B that defendant had several prior pending charges, instructed Me C to inquire if defendant had an attorney, and that if defendant did not, it would be permissible to talk to him.


A person commits the crime of <mask> in the first degree when he or she enters or remains unlawfully in a building with intent to commit a crime against a person or property therein, and if, in entering or while in the building or in immediate flight therefrom, that person or an accomplice in the crime is armed with a deadly weapon or assaults any person.


For the State, the record reveals that on June 13, 2017, Investigator Amy Groethe of the Victoria Police Department submitted a sworn affidavit seeking an arrest *727warrant for Cardenas on charges of capital murder, aggravated sexual assault, <mask> of a habitation with intent to commit other felony, and felony theft/unauthorized use of a motor vehicle. That affidavit, of which the court took judicial notice, stated that on June 12, 2017, the Victoria Police Department received a 911 call that a female was unconscious and not breathing and that "there was blood everywhere." The affidavit continued:


As to the remaining point made by defendant: This is hardly an “ unexplained shortage.” If the. defendant were to prevail in its contention to that effect.(that this is an unexplained shortage because no one actually saw the jewelry stolen from the display case), theft policies of this kind would be generally useless. A theft must usually be proven by' circumstantial evidence. The thief seldom steals in the presence of witnesses. This is not a policy protecting the insured only against loss resulting from <mask> or taking by violence. In any event, there is at the very least a triable issue concerning the explanation for the loss, and any inferences of fact must be drawn by the trier of the facts.


For instance, if one engaged in the commission of a <mask> should lull another, even without design to effect death, the crime would undoubtedly come under this subdivision and would be murder in the first degree. So if the prisoner, while engaged in the commission of this rape, had strangled some person other than the girl in order to prevent that person’s interference, and had thus killed such person without design to effect death, the crime would have come within this same subdivision.


Defendant herein was indicted by a Queens County Grand Jury on May 29, 1974 and charged with the crimes of robbery in the first degree, <mask> in the second degree and assault in the second degree. He now alleges that he has been convicted of the following crimes between July, 1968 and August, 1972: (1) a conviction in July, 1968 for attempted possession of a hypodermic instrument; (2) a conviction in 1969 for possession *815of dangerous drugs; (3) a conviction in April, 1970 for attempted criminal possession of stolen property; (4) a conviction in June, 1971 for possession of drugs; and (5) a conviction in August, 1972 for possession of weapons as a misdemeanor.


- 10 - special concurrence below, defendant claims that, because the latent print was found on such an easily moveable object and there was no evidence that his print was found elsewhere in the apartment or that he possessed any of the items taken, the evidence was insufficient to establish that the print was left at the time of the <mask>.


A person commits residential <mask> if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). Nelson relies on Lindsey v. State , 68 Ark. App. 70, 3 S.W.3d 346 (1999), to support his argument. There, we held that sufficient evidence did not support appellant's theft-by-receiving conviction of a utility van when the circumstantial evidence simply demonstrated that appellant was near the location where the theft had occurred. Id. We held that utility vans are not unique, so the possibility that appellant could be present in a utility van like the stolen van that was discovered nearby hours later was not unreasonable. Id.