CA Unpub Decisions

L.M., the father of M.G., a minor coming under the juvenile court law (Welf. & Inst. Code, § 300),[1] seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to review a juvenile court order which set a hearing under section 366.26 after it terminated his family reunification services. After a six-month pre-permanency hearing pursuant to section 366.21, subdivision (e), the trial court found that L.M. did not adequately participate in court-ordered services provided by the San Luis Obispo County Department of Social Services (DSS) and did not make substantive progress in his case plan. Contrary to L.M.'s contention that the trial court erred in these findings, we conclude substantial evidence supports them. We deny the petition.

In October 2009, a jury convicted Nicholas Dimas of one count of rape of an unconscious person and one count of rape of an intoxicated person. (Pen. Code, § 261, subds. (a)(3), (a)(4).) On a prior appeal, we rejected Dimas’s claims of Wheeler/Batson error,[1] and that the trial court erred in excluding expert testimony on the subject of “false confessions.” (See People v. Dimas (Apr. 4, 2011, B223795 [nonpub. opn.].) We agreed with Dimas that the record reasonably could be construed to support the conclusion that trial court had applied the wrong legal standard in addressing and denying his motion for new trial on the ground of insufficiency of the evidence. (Ibid.) We affirmed Dimas’s convictions, reversed the new trial order, and remanded the case with directions to the trial court to consider the new trial motion anew. (Ibid.) On July 25, 2013, the trial court again denied Dimas’s motion for new trial. This appeal followed. We affirm the order denying Dimas’s motion for new trial.

Following the denial of her motion to suppress evidence under Penal Code section 1538.5, defendant and appellant Cynthia Herrera Quiroz entered a plea of no contest to misdemeanor possession of marijuana in violation of Health and Safety Code section 11357, subdivision (c). Defendant was placed on summary probation for a period of 24 months. She filed a timely notice of appeal, challenging the ruling on the motion to suppress evidence.
This court appointed counsel for defendant. Appointed counsel filed a brief raising no issues but requested this court to independently review the record for arguable contentions pursuant to People v. Wende (1979) 25 Cal.3d 436. Defendant was advised by letter from this court dated November 4, 2013, of her right to file a supplemental brief within 30 days. The 30-day period has lapsed and no brief has been received.
We have completed our independent review of the record and find no arguable appellate contentions. The trial court properly denied defendant’s motion to suppress the marijuana which formed the basis for the prosecution. An officer observed defendant driving a vehicle connected to a ticket that had gone to warrant. Defendant’s driving privilege had been suspended. Because the other three occupants of the vehicle were unlicensed, and leaving the vehicle at the location of the stop would have impeded traffic, a decision was made to impound the car. Marijuana was discovered in a woman’s tote bag in the trunk of the car during an inventory search of the vehicle conducted as part of the impound process. The seizure of the marijuana during the inventory search was lawful.

Kathleen J. (mother) and David J. (father) appeal the juvenile court’s order denying parents’ request for a contested Welfare and Institutions Code section 366.26 hearing.[1] Appellants contend their due process rights were violated when the court denied their request to present evidence of the “beneficial parent-child relationship” and “sibling relationship” exceptions to the termination of parental rights after hearing their offers of proof. (See § 366.26, subd. (c)(1)(B)(i) & (v).) We reject this challenge, and affirm the order.

In August 2012, police detained then 16-year-old Gustavo T. for misdemeanor battery and possession of a smoking device. The People filed a Welfare and Institutions Code section 602 petition against Gustavo.
Following the jurisdiction hearing, the juvenile court sustained the petition, declared Gustavo a ward of the court and the offenses misdemeanors, and ordered him into suitable placement. The court calculated the maximum term of confinement as eight months.
In April 2013, police detained Gustavo T. for robbery. The People filed a second petition pursuant to Welfare and Institutions Code section 602 against Gustavo for second degree robbery. At the jurisdiction hearing, Hector Garcia testified Gustavo and two confederates confronted him on the street, threw him to the ground, kicked him and took his cell phone. At the close of the evidence, the juvenile court sustained the petition, declared the offense a felony and ordered Gustavo to remain a ward of the court. At the disposition hearing, the court terminated the previous order for suitable placement and directed Gustavo into a six-month camp community placement program. The court calculated the maximum term of confinement as five years two months.
Gustavo filed a timely notice of appeal from the order sustaining the second Welfare and Institutions Code section 602 petition. We appointed counsel to represent him on appeal. After examination of the record, counsel filed an opening brief in which no issues were raised. On October 3, 2013, we advised Gustavo he had 30 days in which to personally submit any contentions or issues he wished us to consider. No response has been received to date.

Pervis Holloway appeals from an order denying his motion to recall his sentence under the Three Strikes Reform Act of 2012, added by Proposition 36. (Pen. Code, § 1170.126.)[1] His appointed counsel filed a Wende brief raising no issues and asking this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436, 441.) On October 18, 2013, we sent letters to appellant and appointed counsel, directing counsel to immediately forward the appellate record and a copy of the Wende brief to appellant and advising him that he had 30 days within which to personally submit any contentions or issues he wished us to consider. To date, appellant has not responded.
In 1999, appellant was resentenced for a conviction of possession of firearm by a felon under section 12021, subdivision (a)(1), having originally been sentenced in 1995. Because appellant had two prior serious convictions, he was sentenced to an indeterminate life term under the “Three Strikes” law. (§§ 667, 1170.12.)

Crystal M. (Mother) appeals from a juvenile court disposition order. She contends that there is insufficient evidence to support dependency jurisdiction over her children pursuant to Welfare and Institutions Code section 300. Mother admitted to a social worker that she was using methamphetamine (meth) to cope with stress. Mother’s admitted drug use, coupled with her history of substance abuse, child cruelty and domestic violence, supports dependency jurisdiction over her young children.

The trial court confirmed an arbitration award requiring defendants and appellants National Quality Care, Inc. (NQCI) and Sorbotech, LLC to pay attorney fees to plaintiff and respondent Bryan Cave LLP. The trial court rejected appellants’ argument that the award should not be confirmed because the arbitrator selected by Bryan Cave had represented the firm in a different proceeding. We affirm. The arbitrator that Bryan Cave chose for the three-arbitrator panel was not subject to the disclosure requirements for neutral arbitrators.

This is a dispute over the apportionment of attorney fees between the former and subsequent attorneys for the plaintiffs in the underlying superior court action titled Tommy Carter et al. v. JVS Transportation et al., case No. TC026559.
Appellant Law Offices of Marvin L. Mathis filed a wrongful death action on May 23, 2012, on behalf of three siblings (one minor and two adults) whose mother had been killed in an automobile accident a week earlier. In October 2012, the plaintiffs discharged appellant and substituted respondent Michael A. Lotta as their new counsel.[1] About a week later, defense counsel indicated at the case management conference that the case could be settled for the policy limits.

Christina S. (mother) appeals from an order terminating her parental rights over her son, Kenneth F. Soon after the Los Angeles Department of Children and Families (DCFS) detained Kenneth, he was placed with his paternal grandmother. On appeal, mother contends the trial court erred by failing to consider placing Kenneth with his maternal relatives, and by failing to order DCFS to facilitate visitation between Kenneth and maternal relatives after mother’s parental rights were terminated. Mother also argues DCFS failed to provide reasonable reunification services to her while she was incarcerated. Finally, mother contends the trial court erred in terminating her parental rights because the beneficial parent-child relationship exception to adoption applied. We find no basis for reversal.

Defendant, Jaiver Martinez, has filed a habeas corpus petition seeking to set aside a post-judgment order imposing restitution and parole restitution fines and their inclusion on the abstract of judgment. (Pen. Code, §§ 1202.4, subd. (b)(1), 1202.45.[1]) When originally sentenced, the trial court never orally imposed these fines. However, the abstract of judgment incorrectly stated they were imposed. When the matter was brought to the trial court’s attention after the judgment was final, it issued a nunc pro tunc order imposing the restitution and parole restitution fines.
We agree with defendant that the failure to orally pronounce the restitution fine prevents it from being imposed later on a nunc pro tunc basis after the judgment was final. Although mandatory, imposition of a restitution fine is a discretionary sentencing choice. (People v. Tillman (2000) 22 Cal.4th 300, 303; see In re Sheena K. (2007) 40 Cal.4th 875, 882, fn. 3; People v. Smith (2001) 24 Cal.4th 849, 852-853.) This is because although the trial court was required to impose the restitution fine, it had discretion not to do so if compelling and extraordinary reasons were present. (§ 1202.4, subd. (b)(1); People v. Tillman, supra, 22 Cal.4th at p. 303; see People v. Walz (2008) 160 Cal.App.4th 1364, 1369 [failure to impose § 290.3, subd. (a) sex offense fine is not a jurisdictional error because of ability to pay provision].) In our case the trial court’s failure to impose the section 1202.4, subdivision (b)(1) restitution fine is presumed to be the result of an implied finding that compelling and extraordinary reasons existed. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379, fn. 5.) The prosecutor’s failure to object to the trial court’s failure to have imposed the restitution fine forfeits the issue. (People v. Smith, supra, 24 Cal.4th at p. 853; People v. Moreno (2003) 108 Cal.App.4th 1, 8.) The failure to impose the section 1202.4, subdivision (b)(1) restitution fine was not a jurisdictional error because the trial court had the power to not impose it. (People v. Walz, supra, 160 Cal.App.4th at p. 1371 [sex offender fine]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1519 [drug program fee].)

This is an appeal from a judgment granting respondent William Smith attorney fees and costs. Appellant Gary Arakelian and Mr. Smith were co-owners of Ventura Investors Group (VIG), a California limited liability company. The fee award arose from an action by Mr. Smith to dissolve the company or induce a buyout. Mr. Arakelian argues Mr. Smith did not prevail in the action, and thus should not receive attorney fees or costs. We disagree.

Y.N. (mother) appeals from the dependency court’s judgment of November 26, 2012, declaring I.F. (son) and I.N. (daughter) dependents of the court under Welfare and Institutions Code section 360.[1] She contends: (1) substantial evidence does not support the sustained allegation that her drug use created a risk of harm to the children; and (2) the court’s failure to obtain her waiver of her trial rights was prejudicial error. We affirm.

Michael David Fonseca appeals from the judgment following his conviction by jury of first degree burglary (Pen. Code, § 459).[1] The jury further found that an individual other than appellant or an accomplice was present in the residence during commission of the burglary (§ 667.5, subd. (c)(21)), and the trial court found appellant committed the charged offense while on felony probation (§ 1203, subd. (k)). The court sentenced him to state prison for four years, and ordered him to have no contact with the victims. Appellant challenges the sufficiency of the evidence to support his conviction, and claims that the court lacked authority to issue the no contact order. Respondent correctly concedes the latter claim. We shall modify the judgment accordingly. In all other respects, we affirm the judgment.
Factual and Procedural Background
On June 5, 2012, appellant was driving his car in Thousand Oaks, with Luis Navarette riding in the front passenger seat. Navarette noticed a skateboard in an open garage at one residence, and asked if appellant wanted it. Appellant answered, "yeah," made a U-turn, and parked near the residence. Navarette entered the garage and appellant waited in the car. David Nemiroff and his family were inside the residence. Nemiroff stopped Naverette and patted him down. Nemiroff saw appellant and yelled at him. Appellant stepped outside his car briefly. He drove away with Navarette.