CA Unpub Decisions

Defendant Justin Jon Harjo appeals the trial court’s order of September 24, 2013, requiring him to pay the costs of mandatory supervision according to his ability to pay. He argues that this order was erroneously imposed and should be stricken. The Attorney General concedes the issue, and we agree. Such costs are not authorized for those persons under mandatory supervision pursuant to Penal Code section 1170, subdivision (h). [1]

On July 9, 2013, a petition was filed pursuant to Welfare and Institutions Code section 602, alleging that David V., appellant, possessed a concealable firearm (Pen. Code, § 29610, count 1),[1] possessed live ammunition (§ 29650, count 2), and actively participated in a criminal street gang (§ 186.22, subd. (a), count 3). An enhancement was alleged on count 1 that appellant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)).

In April 2009, in case No. F08500427, appellant, Ernesto Blanco, pled guilty to first degree burglary (Pen. Code, § 460, subd. (a))[1] and was placed on probation.
In case No. F12902111, a jury convicted Blanco of first degree burglary (count 1/§ 460, subd. (a)), receiving stolen property (count 2/§ 496, subd. (a)), and resisting arrest (count 3/§ 148, subd. (a)(1)), arising out of a March 2012 incident. In a separate proceeding, Blanco admitted allegations that he had two prior convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i)), two serious felony enhancements (§ 667, subd. (a)(1)) and two prior prison term enhancements.
On April 28, 2013, the court found Blanco violated his probation in case No. F08500427 by engaging in the March 2012 conduct underlying the charges in case No. F12902111. The court then sentenced Blanco to an aggregate term of 35 years to life in both cases: 25 years to life on his burglary conviction in case No. F12902111, two five-year serious felony enhancements, and concurrent terms on the remaining counts including Blanco’s burglary conviction in case No. F08500427.
On appeal, Blanco contends: 1) the court committed instructional error; and 2) his admission of the prior conviction allegations was not free and voluntary. We affirm.

Defendant and appellant S.G. (minor) challenges the juvenile court’s denial of his motion to suppress evidence (Welf. & Inst. Code, § 700.1)[1] and two of the conditions of his informal probation. Minor’s probation resulted from a true finding that he committed misdemeanor graffiti vandalism or “tagging.” (Pen. Code, § 594, subd. (b).) As discussed below, we affirm the judgment but direct that the two probation conditions be modified as specified in the “Disposition” portion of this opinion.

A jury convicted Robert Daniel Dille of petty theft after a prior theft conviction (Pen. Code,[1] § 484 & 666). Dille thereafter admitted one prison prior (§ 667.5, subd. (b)), and one serious/violent felony prior conviction (§ 667, subds. (b)-(i)).
The court declined to strike the serious/violent felony prior conviction, but did strike the prison prior. Dille was sentenced to a determinate term of four years in prison.
Dille filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) indicating she is unable to identify any reasonably arguable issues for reversal on appeal. We offered Dille the opportunity to file his own brief on appeal, but he has not responded.

In April 2011 Ivan Tablas hit his wife, causing a traumatic condition. In July 2012 Tablas entered a negotiated guilty plea to inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)). In September, the court placed him on three years' probation. In February 2013 Tablas, acting in propria persona, filed a motion to terminate probation in order to avoid deportation. The court appointed counsel for Tablas and in May, counsel filed a motion to withdraw the plea, incorporating the termination motion. In June, the court denied the motions. Tablas appeals. We affirm.

Attorneys John W. Dalton and Jason L. Oliver (together Dalton/Oliver) and Philip E. Kay represented four plaintiffs in this sexual harassment case against defendant, their former employer and two managers. A jury found in favor of plaintiffs. Plaintiffs later appealed the ruling on defendant's new trial motion. We resolved the appeal and remanded the matter to the trial court for further proceedings. (Marcisz v. Movie Theatre Entertainment Group, Inc. (May 30, 2008, D047009) [nonpub. opn.].) The trial court granted the separate motions of Kay and Dalton/Oliver for an award of attorney fees and costs. At issue in this appeal is a nunc pro tunc order (the Order) directing that the fees and costs awarded to Dalton/Oliver be paid by defendant directly to Dalton/Oliver.
Robin A. Kay, the personal representative of the estate of attorney Philip E. Kay (the Estate) appeals from the Order. We reject the Estate's assertions and affirm the Order.

On September 5, 2013, a police officer responded to a reported disturbance at a Chico apartment building. The officer saw defendant Cole James Rhoades on the apartment’s second story landing. Defendant went down to the officer; he was sweating profusely, breathing hard, and had abrasions, scratches, and small amounts of blood on him. He admitted having been in an altercation, but did not want the matter investigated any further. During a pat search of defendant, an officer discovered a knife with a two and three-quarter inch blade in his back pocket. After the officer learned defendant was on a parole hold, defendant was handcuffed and transported to the Chico Police Department. Upon arriving at the police station, defendant admitted to having a small baggie of methamphetamine in his shirt pocket. The officer retrieved the baggie, which contained 0.31 grams of methamphetamine.

Appointed counsel for defendant Johnny Gates asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a supplemental brief explaining the records of the Department of Corrections and Rehabilitation fail to reflect the plea bargain provided that “credits from [case No. 11F03470 were to run] concurrent and given on the new [current] case.” (Italics added.) We conclude the record does not support defendant’s claim the plea bargain provided he was to receive custody credits in the current case for time served in a prior case. After reviewing the record, we affirm the judgment.

Appointed counsel for defendant Johnny Gates asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a supplemental brief explaining the records of the Department of Corrections and Rehabilitation fail to reflect the plea bargain provided that “credits from [case No. 11F03470 were to run] concurrent and given on the new [current] case.” (Italics added.) We conclude the record does not support defendant’s claim the plea bargain provided he was to receive custody credits in the current case for time served in a prior case. After reviewing the record, we affirm the judgment.

Defendant Karen Ann Benedict appeals her judgment following the trial court’s denial of her motion to suppress evidence obtained as a result of a warrantless blood draw. She contends the blood draw was illegal because it was not obtained incident to an arrest, it was obtained without probable cause, and there was no exigent circumstance to excuse not obtaining a warrant. We reject defendant’s contentions because (1) the lack of an actual arrest does not render the warrantless blood draw illegal if there was probable cause to believe defendant was driving under the influence of alcohol, (2) the record supports the officer’s probable cause to arrest defendant for driving under the influence of alcohol at the time the blood sample was taken, and (3) the totality of the circumstances supports a finding of exigent circumstance. Accordingly, we affirm the trial court’s judgment.

Defendant Cheyenne Greer appeals the denial of her petition to transfer her to outpatient treatment pursuant to Penal Code section 1026.2.[1] She contends she met her initial burden of establishing a prima facie case that she would not present a danger to others if she were released under the supervision of the conditional release program (CONREP) and the People did not produce sufficient evidence to rebut that presumption. We disagree and affirm the order of the trial court.

E.H. (mother) challenges the juvenile court’s order terminating reunification services and setting a permanency hearing under Welfare and Institutions Code section 366.26[1] for her son S.H. Mother contends the juvenile court improperly focused on the child’s special needs and did not find that his return to her care would pose substantial risk of detriment. We disagree with mother’s characterization of the court’s findings and deny the petition.

In this dependency action (Welf. & Inst. Code, § 300),[1] the Los Angeles County Department of Children and Family Services appeals from section 366.26 orders that identified legal guardianship or foster care as the child’s permanent plan. The appeal challenges the application of the parent-child relationship exception—also called the “benefit exception”—to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) The Department contends the trial court erred in finding the exception applies to this case. Based on our review of the record, we conclude the finding was premature, and we reverse and remand for further proceedings.