CA Unpub Decisions

Defendant Scott Banks Keneally and two others were charged in an information, filed November 9, 2011, with manufacturing “hash oil” (Health & Saf. Code,[2] § 11379.6, subd. (a)), cultivating or processing marijuana (§ 11358), possessing marijuana for sale (§ 11359), and transporting marijuana (§ 11360, subd. (a)). Prior to a joint trial of defendant and Ryan Schultz, one of the codefendants, the trial court dismissed all but the manufacturing charge on motion of the prosecution. The remaining charge was submitted for bench trial on the basis of police reports and a declaration from an expert witness retained by the defense. The sole issue at trial was the applicability to the defendants’ conduct of section 11379.6, which prohibits the processing of controlled substances by “chemical extraction” or “chemical synthesis.” The court found the statute applicable and accordingly found both defendants guilty on the manufacturing charge.

Plaintiff Sarah Lewis, aka “Amy Heart,” was a $500 an hour “escort” in her early twenties. She met defendant James Ray Dack, a man approximately twice her age, who was going through a divorce. They spent some time together socially for approximately one month. A considerable portion of this social interaction involved defendant giving plaintiff money for her time and physical attentions. Then defendant allegedly lured plaintiff to a hotel room and assaulted her. Plaintiff invoked the Domestic Violence Prevention Act (the Act) (Fam. Code, § 6200 et seq.)[1] and obtained a five-year domestic violence “stay-away” restraining order against defendant. On appeal, defendant contends the family court did not have jurisdiction to issue the restraining order because plaintiff did not belong to one of the categories of protected persons under the Act. Defendant argues the two were not in a “dating relationship,” as defined by section 6210. We agree and reverse.

Minor Dean M. was declared a ward under Welfare and Institutions Code section 602[1] in Contra Costa County based on auto theft (Veh. Code, § 10851, subd. (a)) and cruelty to animals (Pen. Code, § 597, subd. (a)). He appeals on grounds that there was no substantial evidence to support the juvenile court’s commitment to an out‑of‑county ranch, that the court considered improper matter and failed to consider necessary information when it sent him to Bar-O Ranch in Del Norte County, resulting in a denial of due process. Specifically he claims the case plan was deficient and the court improperly based its decision on a purportedly racist remark made by Dean during a Marsden motion and on his father’s disruptive conduct in court.[2] Alternatively, Dean claims he received ineffective assistance of counsel when newly retained counsel failed to obtain a transcript of the jurisdictional hearing and failed to request a continuance to fully familiarize himself with the background of the case before appearing at the disposition hearing, thereby rendering himself unable to address both the use of the racist remark as a grounds for the ranch commitment and unable to respond to the court’s concerns about prior obstreperous behavior of Dean’s father at prior hearings. We affirm.

In 2008, a jury found defendant to be a sexually violent predator (SVP), as defined in the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) (SVPA).[1] Defendant appealed from the order committing him to the Department of Mental Health (DMH) for an indeterminate term pursuant to section 6604. The petition to commit defendant as an SVP was filed prior to the passage of Proposition 83. Proposition 83 passed in November 2006, and the SVPA was amended. The petition against defendant was amended to reflect an indeterminate commitment pursuant to the amended SVPA.
Defendant appealed the commitment order and argued that committing him pursuant to the amended SVPA was an improper retroactive application of the statute and that the amended SVPA violated the due process, equal protection, ex post facto, and double jeopardy clauses of the state and federal Constitution. In our nonpublished opinion filed on June 3, 2010, we rejected all of defendant’s contentions except for his challenge to the SVP statute on equal protection grounds. As to that issue, we directed a remand for further proceedings consistent with People v. McKee (2010) 47 Cal.4th 1172 (McKee I).
The California Supreme Court granted review and transferred the matter to us with directions to vacate our decision and to suspend further proceedings pending finality of the proceedings on remand in McKee I, supra, 47 Cal.4th 1172. The San Diego County Superior Court conducted the evidentiary hearing required by McKee I, and concluded that the People had met their burden of justifying the disparate treatment of SVP’s, and confirmed the indeterminate commitment. The Court of Appeal affirmed. (People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II).) The Supreme Court denied Richard McKee’s petition for review and thus this case is now final. Accordingly, we now reconsider defendant’s equal protection argument in light of McKee II.
We reiterate our previous opinion on all issues except as to our remand based on defendant’s equal protection claim. Having considered defendant’s equal protection contention in light of McKee I and McKee II, we affirm the order of commitment.

On March 23, 2011, the Santa Cruz County Sheriff’s Narcotic Enforcement Team executed a search warrant for defendant Dave Allen Pickens, his residence, and his vehicle. The search yielded a cell phone in defendant’s pants pocket, three half-height sandwich bags in his shirt pocket, a functioning digital scale in a shed, 0.6 grams of methamphetamine and a methamphetamine pipe in a case in the headboard of a bed, and 29.2 grams of methamphetamine concealed in another half-height sandwich bag in defendant’s underwear. Defendant exhibited symptoms of methamphetamine use. During the course of the search, defendant waived his rights and, as more evidence was discovered, eventually admitted that he had returned to selling and using methamphetamine because so many people were asking him for it.
An information filed on August 31, 2011, charged defendant with the felonies of transporting (count 1; Health & Saf. Code, § 11379, subd. (a)) and possessing methamphetamine for sale (count 2; id. § 11378) and the misdemeanor of being under its influence (count 3; id. § 11550, subd. (a)) after having served two prison terms for felony convictions in 1998 (Veh. Code, § 23152, subd. (b)) and 2005 (Pen. Code, § 273.5). (Id. § 667.5, subd. (b).) On September 11, 2012, pursuant to the trial court’s indication of granting probation, after waiving his trial rights defendant was convicted by no contest pleas and admissions of all charges contained in the information. The court granted the prosecutor’s motion to dismiss a misdemeanor charge in a separate proceeding.

Defendant Daniel George Peña is serving a prison term of 32 years to life for attempted murder (Pen. Code, §§ 187, subd. (a), 664)[1] accompanied by firearm use resulting in great bodily injury (§ 12022.53, subds. (d), (e)(1)). On appeal, he claims that the trial court erred by not instructing the jury to consider the less serious offenses of voluntary manslaughter and attempted voluntary manslaughter. He also claims that counsel rendered ineffective assistance of counsel when he failed to ask the court to instruct on completed and attempted voluntary manslaughter.
The claims are without merit and we will affirm the judgment. Defendant has also filed a petition for writ of habeas corpus, which we have ordered considered with this appeal. In it, he makes an additional claim of ineffective assistance of counsel arising from the jury trial. We have disposed of the petition by separate order filed this date. (Cal. Rules of Court, rule 8.387(b)(2)(B).)

Defendant Victor Alejandro Erazo filed a notice of appeal. His appointed counsel filed a brief setting forth a statement of the case, but advised this court he found no issues to support an appeal. We provided Erazo 30 days to file his own written argument, but he has not responded. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we affirm.

The California School Employees Association, the association’s Santa Ana chapter, and a member of the association (collectively referred to as CSEA) sought a peremptory writ of mandate compelling the Santa Ana Unified School District, its governing board, and two of its superintendents (collectively referred to as the District) to rescind the District’s partnership agreement with THINK Together, Inc. (THINK) for the provision of after-school program management services because the partnership agreement allegedly violated Education Code section 45103.1.[1] CSEA also sought the reinstatement of classified employees to the after-school tutoring positions they held prior to the District’s agreement with THINK, and an order directing the District to compensate the purportedly displaced classified employees for their losses due to the THINK partnership agreement. The trial court determined the after-school tutoring positions held by the classified employees prior to the District’s agreement with THINK were extra duty assignments “at-will,” rather than permanent classified school employment positions, and the employees who held those positions never obtained permanent status for the extra duty hours they worked. Consequently, the trial court held the District’s agreement with THINK did not violate the provisions of section 45103.1, and denied the peremptory writ of mandate requested by CSEA. We need not consider CSEA’s appeal with regard to the trial court’s ruling on the substantive issues. Instead, we dispose of the appeal on procedural grounds by concluding CSEA failed to exhaust administrative remedies. We reverse the trial court’s order and remand the matter with directions to stay the proceedings until CSEA exhausts administrative remedies.

A modification decision.

On May 29, 2012, an amended felony complaint charged defendant and appellant Christopher Eric Malveaux with two counts of felony robbery (Pen. Code, § 211, counts 1 & 2), and one misdemeanor count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 3). The complaint also alleged that defendant personally used a firearm in the commission of counts 1 and 2. (Pen. Code, § 12022.53, subd. (b).)
On September 18, 2012, defendant pleaded guilty to count 1 and admitted the personal gun use enhancement. In exchange, the parties agreed to a prison term of 12 years in state prison and the dismissal of the other charges and allegations.
On September 28, 2012, the trial court sentenced defendant to 12 years in state prison, comprised of the low term of two years for the robbery conviction and a consecutive 10-year term for the gun enhancement. The court dismissed the other allegations and charges, and awarded defendant 151 days of actual credits and 22 days of conduct credits.
On November 16, 2012, defendant filed a timely notice of appeal from his sentence or other matters after the plea.

Mother appeals from a judgment terminating her parental rights to three children, R.M., A.G., and G.D. (Welf. & Inst. Code,[1] § 366.26.) The children became dependents due to physical abuse of two of the children, and domestic violence in the home. After an incident between mother’s oldest child, S.R.,[2] and G.D., Sr., the father of G.D., Jr., G.D., Sr. was required to move out of the family home. Mother eventually was allowed unsupervised visits with the children providing G.D., Sr. was not present in the residence, but the Department of Public Social Services (DPSS) learned that mother had allowed G.D., Sr. back into the home when the children were present. At the 12-month review hearing, mother’s services were terminated and a section 366.26 hearing was set. Prior to the section 366.26 hearing, mother filed a petition for modification (§ 388) which was denied. The court terminated parental rights and mother appealed.
On appeal, mother argues that the court erred (1) in denying her section 388 petition, and (2) in terminating her parental rights. We affirm.

T.V., father, appeals from a judgment of the juvenile court terminating his parental rights to two children. Father argues the beneficial parental bond exception applies and the court should have ordered legal guardianship instead of adoption. After thoroughly reviewing the record, we reject father’s appeal and affirm the judgment.

This is an appeal by J.K. (mother) from the trial court’s order under Welfare and Institutions Code section 366.26[1] terminating her parental rights to her then 12-month-old son, L.P. Mother contends the trial court erred in denying her section 388 petition in which she requested the trial court order reunification services because, although her whereabouts were unknown at the start of the dependency process, mother appeared in court on the date set for the selection and implementation hearing. Therefore, mother contends the trial court was required to provide reunification services to her and that it erred in failing to do so.
We agree with mother that the trial court erred, but do not share her view that ordering reunification services is the only appropriate remedy, as we discuss below. Therefore, we will reverse the order terminating mother’s parental rights and remand the matter to the trial court but with options on how to proceed on remand.

On August 4, 2011, a felony complaint charged defendant and appellant Omar Salazar with four felony counts of child abuse (Pen. Code, § 273a, subd. (a), counts 1-4); one felony count of evading an officer (Veh. Code, § 2800.2, subd. (a), count 5); and one misdemeanor count of being a habitual traffic offender (Veh. Code, § 14601.3, subd. (a), count 6).
On February 16, 2012, defendant pleaded no contest to evading an officer (Veh. Code, § 2800.2, subd. (a), count 5); resisting an officer (Pen. Code, § 69, added count 7); and a nonstrike assault by means likely to inflict great bodily injury (Pen. Code, § 245, subd. (a)(1), added count 8). In exchange, the parties agreed to a term of three years in state prison for each count to run concurrent. The other charges were dismissed, as well as defendant’s other cases.
On June 18, 2012, the trial court sentenced defendant to concurrent terms of three years in state prison for each count, and ordered defendant to pay a $240 restitution fine (Pen. Code, § 1202.4), and a $240 parole revocation restitution fine (Pen. Code, § 1202.45), stayed unless parole is revoked.
On July 6, 2012, defendant filed a timely notice of appeal from his sentence or other matters after the plea.