In re D.M. CA2/3

Filed 12/23/13 In re D.M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re D.M. et al., Persons Coming Under B246614 the Juvenile Court Law. _____________________________________ (Los Angeles County LOS ANGELES COUNTY DEPARTMENT Super. Ct. No. CK93405) OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.M.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Sherri Sobel, Juvenile Court Referee. Affirmed. Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant. John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Kimberly Roura, Associate County Counsel, for Plaintiff and Respondent.

_________________________

J. M. (father) appeals from the dependency court’s judgment of December 14, 2012 declaring his daughters, D. M. and S. M. dependents of the court under Welfare and Institutions Code section 360.1 He contends: (1) it was prejudicial error to admit the out- of-court statements of Edwin S.; and (2) substantial evidence does not support the sustained allegations. We affirm. STATEMENT OF FACTS AND PROCEDURE D. was born in 2007 and S. was born in 2009 to father and S. B. (mother), who were married and lived together.2 Father had a history of criminal convictions, including carrying a concealed weapon in a vehicle and burglary. During a physical altercation in 2009, father hit mother in the children’s presence. On April 8, 2012, Edwin, an employee of a vehicle repossession company, went to the family’s apartment to repossess mother’s car. The children were at home. Edwin hitched the car to his tow truck. Father came down and engaged in a heated, angry argument with Edwin. Father returned to the apartment and retrieved a gun. Gunshots were fired, shattering the tow truck’s rear windshield. Father fled from the scene. A bullet jacket was found on the front passenger floor board. Edwin told the police that father was the shooter. Father was arrested for attempted murder. The Department of Children and Family Services (Department) detained the children with mother on May 4, 2012, and a section 300 petition was filed. As originally filed, the petition alleged father brandished a loaded handgun at Edwin and repeatedly fired at Edwin’s tow truck while Edwin was in it. On December 14, 2012, the dependency court amended the petition by deleting the allegations which placed the gun in father’s hands and declared the children dependents of the court based on sustained allegations, under section 300, subdivision (b), that, inter alia, the children suffered, or were at substantial risk of suffering, serious physical harm