CA Unpub Decisions

In 2009, defendant Herbert Anthony Willmes was committed for an indeterminate term to the State Department of Mental Health (now State Department of State Hospitals; hereafter the Department) after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600 et seq.).[1] Willmes appealed from the judgment contending, inter alia, that an indeterminate term of commitment violates equal protection. This court reversed the judgment committing Willmes for an indeterminate term and remanded the matter to the trial court for reconsideration of his equal protection argument in light of People v. McKee (2010) 47 Cal.4th 1172 (McKee I), and the resolution of proceedings on remand in that case. (People v. Willmes (Nov. 30, 2010, H034656) [nonpub. opn.] (Willmes).)[2] This court also ordered that the trial court suspend further proceedings in Willmes’s case pending finality of the proceedings on remand in McKee I.
After further trial court proceedings were held on remand in McKee I, the defendant appealed and Division One of the Fourth Appellate District issued its opinion determining that substantial evidence supports the trial court’s finding that disparate treatment of SVP’s is warranted. (People v. McKee (2012) 207 Cal.App.4th 1325, 1330-1331 (McKee II), review denied Oct. 10, 2012, S204503.) On November 9, 2012, after the California Supreme Court denied review of McKee II, the trial court in the instant case again ordered Willmes committed to the Department for an indeterminate term under the SVPA.
In the present appeal, Willmes contends that a commitment for an indeterminate term under the SVPA violates the equal protection clauses of the federal and state Constitutions.
As we will discuss, we conclude that Willmes’s equal protection claim lacks merit for the reasons stated in McKee II. We will therefore affirm the judgment.

This matter concerns three criminal cases. In case No. SSC110191A, defendant Alex Adolfo Sandoval Martinez pleaded no contest to one felony, evading an officer with willful disregard of the safety of persons or property (Veh. Code, § 2800.2,subd. (a)) and five misdemeanors. In case No. SS112248B, defendant pleaded no contest to residential burglary (Pen. Code, § 459)[1] and admitted the gang allegation (§ 186.22, subd. (b)(1)(B)). In case No. SS120012A, defendant pleaded no contest to second degree robbery (§ 211) and admitted the allegation that he was released from custody on his own recognizance or bail at the time of the offense (§ 12022.1). In accordance with the plea agreement resolving all three cases, defendant was sentenced to a total term of 10 years eight months.
Defendant’s motion to deem his notice of appeal as timely filed was granted and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, at page 110, we provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.”

Defendant Ryley Lynn Lyon pleaded no contest to felony transportation of cocaine (Health & Safety Code, § 11352, subd. (a)) with a loaded firearm enhancement (Penal Code, § 12022, subd. (c)).[1] Imposition of sentence was suspended for three years, and defendant was placed on probation. Defendant’s plea came after he unsuccessfully attempted to suppress evidence discovered as the result of a traffic stop based on alleged violations of the Fourth Amendment to the United States Constitution. On appeal, defendant contends the Superior Court erred in finding defendant had forfeited certain arguments related to his suppression motion by failing to raise them during his preliminary hearing. Alternatively, defendant argues he was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution by his trial counsel’s failure to preserve all Fourth Amendment arguments. For the reasons stated herein, we will affirm the judgment.

Appellant challenges the termination of her parental rights. She argues that the juvenile court should have applied the parent-child beneficial relationship exception to overcome the statutory preference for adoption of an adoptable child. But appellant did not appear at the hearing terminating her parental rights, did not ask the juvenile court to apply this exception, and arguably forfeited her right to have the exception considered on appeal. Although we exercise our discretion to consider the exception on appeal, we conclude that it would not have been an abuse of discretion for the juvenile court to have found there was no “compelling reason” to determine that terminating appellant’s parental rights would be detrimental to the child. Therefore, we affirm the order terminating appellant’s parental rights.

A jury convicted defendant Richard Nelson Nash of possession of child pornography (Pen. Code, § 311.11, subd. (a)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).[1] During trial, defendant admitted the allegations that he had suffered five prior violent or serious felony “strike” convictions. In December 2011, the court sentenced him to two indeterminate terms of 25 years to life in prison to be served concurrently. During sentencing, the court awarded a total of 82 days of presentence credits (61 days of custody credits and 21 days of conduct credits).
On appeal, defendant contends that he is entitled to 41 days of additional conduct credits under the latest amendment to section 4019, effective October 1, 2011 (the October 2011 amendment). He argues that as a matter of statutory interpretation, the October 2011 amendment must be applied retroactively. He contends further that prospective application of the October 2011 amendment violates his constitutional right to equal protection of the law. Lastly, he contends that, even if the October 2011 amendment is found not to apply to his circumstances, the court erred in calculating his presentence credits and he is entitled to 63 days of custody credits and 30 days of conduct credits.
We conclude that defendant’s claim of entitlement to additional conduct credits under the October 2011 amendment to section 4019 is without merit. Last year, in People v. Kennedy (2012) 209 Cal.App.4th 385 (Kennedy), we rejected statutory interpretation and equal protection arguments identical to those raised by defendant here. We agree, however, that the court erred in its calculation of presentence credits. Accordingly, we will order the judgment modified to award the proper presentence credits, will direct the clerk of the superior court to modify the abstract of judgment and transmit a certified copy thereof to the Department of Corrections and Rehabilitation, and will affirm the judgment as modified.

A jury found defendant Dearyl Tucker Ford guilty of: (1) second degree burglary; (2) theft or unauthorized use of a vehicle; and (3) vandalism. (Pen. Code, § 460, subd. (b); Veh. Code, § 10851, subd. (a); Pen. Code § 594, subds. (a) & (b)(2)(A)). Defendant claims that the court erred in ordering restitution to one of the victims, and that trial counsel provided ineffective assistance of counsel at the restitution hearing. We deny the claim of ineffective assistance of counsel and affirm the court’s restitution order.[1]

Pursuant to a plea agreement, defendant Douglas Gonsalez Garcia pleaded no contest to one count of sexual penetration of a person under 18 by a foreign object (Pen. Code, § 289, subd. (h)),[1] one count of oral copulation of a person under 18 (§ 288a, subd. (b)(1)) and one misdemeanor count of dissuading a witness (§ 136.1, subd. (b)(1)). In exchange, Garcia was to receive a top sentence of felony probation with the court to determine at sentencing whether the admitted sexual offenses would remain felonies or be reduced to misdemeanors. The court was also to determine in its discretion under section 290.006 whether or not to require Garcia to register as a sex offender.
Garcia was sentenced to three years’ felony probation and ordered to register as a sex offender. On appeal, he contends the trial court abused its discretion in requiring him to register as a sex offender and denied him the benefit of his plea agreement by failing to specify whether the offenses to which he pleaded no contest remained felonies or were reduced to misdemeanors.
Garcia also filed a separate petition for writ of habeas corpus in which he contends his trial counsel was ineffective for failing to obtain an expert psychological opinion on his propensity to commit forcible sex crimes in the future.
Because the trial court failed to state either the reasons for its finding that the crime was committed for purposes of sexual gratification or the reasons for requiring lifetime registration as a sex offender, we shall reverse and remand for resentencing. Consequently, Garcia’s petition for writ of habeas corpus is moot and shall be dismissed as such.

Appellant and respondent were married in 1995 and separated in October 2006. They have two minor sons. Pursuant to a judgment of dissolution that was filed in December 2007, the parties had joint legal and physical custody of the children.
After appellant remarried, she accepted a position in the Boston area in November 2009. Appellant then filed an order to show cause in which she requested that she be allowed to move to the Boston area with the children. In December 2009, appellant moved to the Boston area. The children remained with respondent in California and visited with appellant pursuant to a December 10, 2009 order.
The matter was referred to Family Court Services for an evaluation of physical custody, visitation, and move-away issues. Patricia Coil prepared an evaluation report with recommendations. After the evaluator interviewed appellant, respondent, and both children, and observed the children with each party, she recommended that the children, who were then 11 and seven years old, continue to live with respondent and have visitation with appellant.
After the trial court held a hearing, it found that it was in the children’s best interests to stay in California with respondent and have visitation with appellant.

In this appeal, plaintiff Usha Viswanathan challenges an order granting summary judgment to Leland Stanford Jr. University, Stanford Law School, and one of the law school's professors, Robert Weisberg. Plaintiff contends that defendants failed to meet their burden to show entitlement to judgment as a matter of law on her claims of libel, slander, and negligent supervision and training. We agree with the superior court, however, that defendants met their burden and that plaintiff failed to raise a triable issue of fact material to these causes of action. We must therefore affirm the judgment and the subsequent order awarding costs to defendants.

Appellant Ward Gillette challenges a judgment entered in favor of plaintiff Amit Pandya, in an action for fraud against Gillette, Albert Braun, and their company, Five Star Technologies, Inc. (Five Star). Gillette contends that there is insufficient evidence to support the trial court's findings that (1) plaintiff justifiably relied on the defendants' misrepresentation and (2) their misrepresentation caused the harm plaintiff suffered. Gillette further challenges the amount of compensatory and punitive damages awarded to plaintiff. We agree with his last point regarding punitive damages and will accordingly modify the judgment.

“There are three categories of appealable judgments or orders: (1) final judgments as determined by case law, (2) orders and interlocutory judgments made expressly appealable by statute, and (3) certain judgments and orders that, although they do not dispose of all issues in the case are considered ‘final’ for appeal purposes and are exceptions to the one-final-judgment rule.” (Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235.) There is no final judgment in this case; the underlying family law proceeding within which the order was made is still pending. And an order designating a person to be a vexatious litigant under Code of Civil Procedure section 391.7[2] is not expressly made appealable by any statute. But where, as here, the order is made in the course of an underlying action but is collateral to the subject of that action, it is appealable pursuant to the collateral order doctrine. (Lester v. Lennane, supra, 84 Cal.App.4th at p. 561.) Under the majority rule, “an interim order is appealable if: [¶] 1. The order is collateral to the subject matter of the litigation, [¶] 2. The order is final as to the collateral matter, and [¶] 3. The order directs the payment of money by the appellant or the performance of an act by or against appellant.” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-298, citing Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.) The order in this case is wholly collateral to the subject of the underlying proceeding. Indeed, it has no effect upon the proceeding. It affects only litigation Hiramanek might want to file in the future. The trial court’s granting of the motion is a final decision on that issue. And the order directs Hiramanek to perform an act, namely to obtain an order from the presiding judge before filing any future litigation. Thus, the order is appealable as a final decision on a collateral matter.

After trial, a jury convicted defendant Jesse Carranco and codefendant Jacob Townley Hernandez ("Townley") of attempted deliberate and premeditated murder (Pen. Code, §§ 664, 187) for Townley's shooting of Javier Lazaro in Santa Cruz on February 17, 2006. This court reversed the judgments against both defendants, finding error in the superior court's refusal to permit trial counsel to show their clients a sealed declaration by a prosecution witness attesting to his own participation in an attempted murder, along with a sealed transcript of the witness's plea agreement proceeding. We held that the trial court had deprived defendants of their Sixth Amendment right to effective assistance of counsel by denying them access to these materials. The Supreme Court granted review. In Townley's case the holding that error had occurred was unchallenged by the People, and the high court expressed no opinion on this point. It did, however, reject this court's conclusion that the error was a structural defect subject to automatic reversal under Perry v. Leeke (1989) 488 U.S. 272. On the contrary, our Supreme Court held that an analysis of prejudice was required under the standard articulated in Strickland v. Washington (1984) 466 U.S. 668, and it accordingly remanded the case for that purpose. (People v. Hernandez (2012) 53 Cal.4th 1095.)
After reversing the judgment in Townley's case, the Supreme Court remanded Carranco's case to be considered in light of Hernandez. Having received post-remand written [and oral] argument from the parties, we now conclude that no prejudice appears on the record before us. We also consider Carranco's assertions that (1) he was deprived of his Sixth Amendment right of confrontation during his cross-examination of the prosecution witness, (2) the court improperly excluded relevant portions of his statements in a police interview, (3) the prosecutor engaged in misconduct at trial, and (4) the trial judge improperly commented on Flores's credibility. We find no prejudicial error on these grounds, however, and therefore must affirm the judgment.

Defendant Ronald William Crocker pleaded guilty to a violation of Penal Code section 288.7, subdivision (b) (oral copulation with a child 10 years old or younger by a person 18 years old or older). The court sentenced him to 15 years to life in prison.
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende) setting forth the facts of the case and requesting that we independently review the record. Counsel stated he was unable to find any potential issues for review.

Defendant James Vincent DiMaio was charged in a 16-count amended felony complaint with seven counts of grand theft (Pen. Code,[1] § 487, subd. (a)), five counts of diversion of construction funds (§ 484b; misdemeanors), and four counts of issuing an insufficient funds check (§ 476a, subd. (a)). He pled guilty to all the charges. The court placed him on five years of formal probation, ordered him to serve one year in the county jail, imposed a $200 restitution fine, and ordered him to pay restitution on a number of the counts in an amount directed by the probation department.[2] In connection with the grand theft and diversion of construction funds alleged in counts 15 and 16, respectively, the court conducted a restitution hearing. At the conclusion of the hearing, the court ordered defendant to reimburse Reyburn Landscaping $169,750. Defendant appeals, contending the court abused its discretion in making the restitution order.