CA Unpub Decisions

Richard Boysel is the subject of a commitment petition filed pursuant to the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).[1] In our prior opinion, Boysel v. Superior Court (Mar. 28, 2012, G045202) (nonpub. opn.), review granted June 13, 2012, S202324, we denied Boysel’s petition for writ of mandate/prohibition, which sought a writ directing the respondent court to grant his plea in abatement and dismiss the commitment petition.
The California Supreme Court granted review of our opinion. After issuing its decision in Reilly v. Superior Court (2013) 57 Cal.4th 641 (Reilly), the Supreme Court transferred this matter to us for reconsideration in light of that decision. No party filed a supplemental brief pursuant to rule 8.200(b)(1) of the California Rules of Court.
As the Supreme Court directed, we have reconsidered this matter in light of Reilly and again deny Boysel’s petition for writ of mandate/prohibition. Our decision is without prejudice to Boysel challenging the probable cause determination pursuant to Reilly, supra, 57 Cal.4th at pages 656‑657, footnote 5, and without prejudice to Boysel and the People obtaining further examinations and evaluations permitted by the SVPA.

Agustine Quintero is the subject of a commitment petition filed pursuant to the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).[1] In our prior opinion, Quintero v. Superior Court (Mar. 28, 2012, G045200) (nonpub. opn.), review granted June 27, 2012, S202358, we denied Quintero’s petition for writ of mandate/prohibition, which sought a writ directing the respondent court to grant his plea in abatement and dismiss the commitment petition.
The California Supreme Court granted review of our opinion. After issuing its decision in Reilly v. Superior Court (2013) 57 Cal.4th 641 (Reilly), the Supreme Court transferred this matter to us for reconsideration in light of that decision. No party filed a supplemental brief pursuant to rule 8.200(b)(1) of the California Rules of Court.
As the Supreme Court directed, we have reconsidered this matter in light of Reilly and again deny Quintero’s petition for writ of mandate/prohibition. Our decision is without prejudice to Quintero challenging the probable cause determination pursuant to Reilly, supra, 57 Cal.4th at pages 656‑657, footnote 5, and without prejudice to Quintero and the People obtaining further examinations and evaluations permitted by the SVPA.

Richard Anthony Smith is the subject of a commitment petition filed pursuant to the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).[1] In our prior opinion, Smith v. Superior Court (Mar. 28, 2012, G045119) (nonpub. opn.), review granted June 27, 2012, S202338, we granted Smith’s petition for writ of mandate/prohibition and directed the respondent court to grant his plea in abatement, in effect dismissing the SVPA commitment petition.
The California Supreme Court granted review of our opinion. After issuing its decision in Reilly v. Superior Court (2013) 57 Cal.4th 641 (Reilly), the Supreme Court transferred this matter to us for reconsideration in light of that decision. Following transfer, Smith submitted a supplemental opening brief pursuant to rule 8.200(b)(1) of the California Rules of Court. The district attorney did not file a supplemental responding brief.
As the Supreme Court directed, we have reconsidered this matter in light of Reilly and now conclude Smith’s petition for writ of mandate/prohibition must be denied in part and granted in part. We deny Smith’s request for a writ directing the respondent court to grant his plea in abatement. We grant Smith’s request for a writ directing the respondent court to vacate its order granting the district attorney’s motion to compel him to undergo a mental examination by the district attorney’s retained mental health professional and granting that mental health professional access to Smith’s state hospital records. Our decision is without prejudice to Smith challenging the probable cause determination pursuant to Reilly, supra, 57 Cal.4th at pages 656‑657, footnote 5, and without prejudice to Smith and the People obtaining further examinations and evaluations permitted by the SVPA.

Kevin Michael Reilly is the subject of a petition for commitment under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA). In Reilly v. Superior Court (Mar. 28, 2012, G045118) (nonpub. opn.), review granted June 13, 2012, S202280 (Reilly I), we granted Reilly’s petition for writ of mandate/prohibition and directed the respondent court to grant Reilly’s plea in abatement, in effect dismissing the SVPA commitment petition.
In Reilly v. Superior Court (2013) 57 Cal.4th 641, 656‑657 (Reilly II), the California Supreme Court reversed our judgment in Reilly I and concluded that Reilly must proceed to a trial on the SVPA commitment petition. The Supreme Court remanded the matter to us “for proceedings consistent with [its] opinion.” (Reilly II, supra, at p. 657; see Cal. Rules of Court, rule 8.528(c).)

Evergreen Holistic Collective contends local bans on medical marijuana dispensaries are preempted because the Legislature made clear its policy determination in Health and Safety Code section 11362.775 that the cultivation of marijuana for sick Californians by qualified cooperative or collective associations is not a nuisance, and therefore, what the Legislature has authorized, the City of Lake Forest (the city) may not ban. We agreed in a published opinion, and because the trial court granted the city’s injunction request solely on the basis of the city’s dispensary ban, we reversed the preliminary injunction and remanded the matter for further proceedings. The Supreme Court granted the city’s petition for review and later concluded in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 (Inland Empire) that local governments may ban medical marijuana dispensaries without triggering preemption by the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5) or California’s Medical Marijuana Program (Health & Saf. Code, § 11362.7 et seq.). The high court transferred this case back to us to consider in light of Inland Empire, and because that decision is controlling authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we affirm the preliminary injunction. The parties shall bear their own costs on appeal.

Lake Forest Wellness Center and Collective contends local bans against medical marijuana dispensaries are preempted because the Legislature made clear its policy determination in Health and Safety Code section 11362.775 that the cultivation of marijuana for sick Californians by qualified cooperative or collective associations is not a nuisance, and therefore, what the Legislature has authorized, the City of Lake Forest (the city) may not ban. We agreed in an unpublished opinion, and because the trial court granted the city’s injunction request solely on the basis of the city’s dispensary ban, we reversed the preliminary injunction and remanded the matter for further proceedings. The Supreme Court granted the city’s petition for review and later concluded in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729 (Inland Empire) that local governments may ban medical marijuana dispensaries without triggering preemption by the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5) or California’s Medical Marijuana Program (Health & Saf. Code, § 11362.7 et seq.). The high court transferred this case back to us to consider in light of Inland Empire, and because that decision is controlling authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we affirm the preliminary injunction. The parties shall bear their own costs on appeal.

In our prior published opinion, People v. Cottone (2011) 195 Cal.App.4th 245, review granted August 17, 2011, S194107, we reversed Lee Vincent Cottone’s convictions for committing a lewd act upon a child under the age of 14. In doing so, we concluded the following: (1) Penal Code section 26[1] is applicable to Evidence Code section 1108; and (2) the trial court erred in not submitting to the jury the issue of whether Cottone appreciated the wrongfulness of his prior sexual misconduct.
In People v. Cottone (2013) 57 Cal.4th 269 (Cottone), the California Supreme Court reversed, agreeing with our first conclusion but disagreeing with our second. As to the first point, the court concluded, “[T]hat the presumption of incapacity set forth in . . . section 26([, subd.] One) applies when the prosecution seeks to prove that the defendant committed an unadjudicated sexual offense [pursuant to Evidence Code
section 1108] before reaching age 14.” (Cottone, supra, 57 Cal.4th at p. 281.) With respect to the second point, the Cottone court stated as follows: “[W]e hold that upon the defendant’s timely objection, the trial court must find by clear and convincing evidence that the defendant had the capacity to commit an unadjudicated juvenile offense before admitting that evidence under section 1108. . . . [Citation.] . . . Once the trial court has made that legal determination, [Evidence Code] section 405 does not permit the jury to delve into the nuances of evidentiary rules. Instead, the jury turns to the essential question of what, if anything, the evidence proves.” (Cottone, supra, 57 Cal.4th at
p. 292.) Finally, the Cottone court disagreed with our conclusion the trial court had a sua sponte duty to instruct the jury on the issue of capacity. (Id. at pp. 292-293.) The court concluded, “[W]e decline to impose a sua sponte duty to instruct that the jury reconsider a fact relating to evidentiary admission.” (Id. at p. 294.) The court remanded the matter back to this court for further proceedings consistent with its opinion.
We invited the parties to submit supplemental letter briefs on the effect of Cottone, 57 Cal.4th 269, on further proceedings in this court. The parties agree our prior opinion left unanswered the following two issues that we must now address: (1) the prosecutor failed to present clear and convincing evidence Cottone appreciated the wrongfulness of the 32-year old prior sexual misconduct; and (2) his Sixth Amendment confrontation rights were violated. Neither contention has merit, and we affirm the judgment.

N.T. (father) is the presumed father of two-year-old Jeremiah, the subject of this writ petition. After exercising its dependency jurisdiction over Jeremiah, respondent court denied father reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(1)[1] because his whereabouts were unknown and set a six-month review hearing. (§ 366.21, subd. (e).) Prior to the six-month review hearing, father made his whereabouts known and requested reunification services. Respondent court set a section 366.26 hearing without offering father services or denying him services on any ground other than subdivision (b)(1) of section 361.5.
Father seeks extraordinary writ relief, contending the juvenile court erred in setting the section 366.26 hearing. We grant the petition.

Petitioners seek an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) from the juvenile court’s orders issued at a combined Welfare and Institutions Code section 366.21, subdivision (f) and Welfare and Institutions Code section 388[1] hearing in which the juvenile court denied the section 388 petition and set the matter for a hearing pursuant to section 366.26. The petitioners are the potential adoptive parents, Mr. and Mrs. S.; Ramon S. (father); Gabriella R. (mother); and the children, Leslie and Laylah S., who were born in January 2011.[2] We do not find error and affirm the rulings and orders of the juvenile court.

Appellant Duane Prokuski moved to set aside prior judgments and orders in his dissolution of marriage action that required an equalization payment of $218,000 and spousal support of $1,000 per month. The grounds he raised were fraud, perjury and failure to disclose. The superior court denied Duane’s motion and he filed this appeal.
In presenting his challenges to the trial court’s order, Duane has failed to abide by the basic rules of appellate procedure that (1) the evidence must be viewed in the light most favorable to the prevailing party and (2) appellants have the burden of affirmatively demonstrating prejudicial error. In this appeal, Duane has not carried his burden.
We therefore affirm the order denying the motion to set aside.

On August 10, 2012, defendant Joe Brown was convicted of making criminal threats against David Gideon (Pen. Code, § 422; count 1) and exhibiting a deadly weapon in a threatening manner (id., § 417, subd. (a)(1); count 3). He was acquitted of making criminal threats against Cameron Beckman (id., § 422; count 2). On September 28, 2012, the court granted three years of probation subject to various terms and conditions, including payment of a $100 court construction penalty (Gov. Code, § 70372, subd. (a)), an $80 court operations assessment (Pen. Code, § 1465.8, subd. (a)), and a $60 court facilities assessment (Gov. Code, § 70373).
On appeal, defendant contends his conviction on count 1 must be reversed because the evidence did not sufficiently show that Gideon experienced sustained fear.[1] He also contends the trial court erroneously required payment of the aforementioned fees as a condition of probation. We find the evidence sufficient to support the conviction, but find the challenged fee and assessments could not be ordered as a condition of probation. We affirm the conviction, but remand the case for the trial court to modify the fee and assessments as separate orders.

Defendant Mark Anthony Scott pled no contest to attempted second degree murder and was sentenced to nine years in prison. He now claims the trial court erred in awarding victim restitution. We affirm.

This is an appeal from an order in a criminal case sanctioning a defense attorney, Clayton D. Campbell, who represented a defendant charged with carjacking and other offenses. Campbell filed a civil lawsuit against the alleged carjacking victim on behalf of his criminal defense client in order to take the alleged victim’s deposition. After Campbell took the deposition, he dismissed the civil suit. When the deputy district attorney learned that Campbell had taken the alleged victim’s deposition under these circumstances, he sought sanctions against Campbell in the criminal case. The court granted the request for sanctions and ordered Campbell to purchase a deposition transcript to be provided to the alleged victim, to reimburse the alleged victim for any expenses he incurred in appearing for the deposition, and to report himself to the California State Bar.
On appeal, Campbell contends that the trial court was without authority to order sanctions. The court relied on “Marsy’s Law” (Cal. Const., art. I, § 28),

criminal discovery statutes, and Code of Civil Procedure section 128, but Campbell argues that none of these provisions granted the court authority to sanction him in this case.
We conclude the trial court lacked statutory or constitutional authority to impose sanctions and reverse the sanctions order.

Defendant Tyrell Lovell Franklin was charged with the following crimes: assault by an inmate upon a correctional officer with force likely to cause great bodily injury (count 1 – Pen. Code,[1] § 4501); assaulting a correctional officer with a deadly weapon (count 2 – § 4501); battering a person not in custody by an inmate (count 3 – § 4501.5); battery resulting in serious bodily injury (count 4 – § 243, subd. (d)); and resisting an executive officer (count 5 – § 69.) It was further alleged that defendant had suffered a prior serious felony conviction (§§ 667, subds. (a)(1), (b)-(i); 1170.12, subds. (a)-(d)), committed the offenses while confined in a state prison (§ 1170.1, subd. (c)).[2] A great bodily injury enhancement (§ 12022.7, subd. (a)) was alleged as to all counts.
On counts 1 and 2, the jury convicted defendant of the lesser-included offense of misdemeanor assault. (§ 240.) The jury found defendant guilty as charged on counts 3, 4 and 5. The only great bodily injury enhancement the jury found true was the enhancement on count 4 – battery resulting in serious bodily injury. (§ 243, subd. (d).)
The court sentenced defendant to an aggregate term of 16 years in prison. The court refused defense counsel’s request to stay execution of the punishment on count 4 under section 654. The court stated the following at the sentencing hearing:
“I think the test is elements with reference to 654. And, also, with reference to the issue of whether there’s, as they say, the question of whether the Count 4 and Count 5 have the same elements and, also, the same intent. And I guess the argument is that one of them has a sentient requirement knowing that you are dealing with an executive officer, which is different from the battery with serious bodily injury count.…”