CA Unpub Decisions

An unwed, natural father who does not statutorily qualify as a presumed father under Family Code section 7611[1] does not have a right to withhold consent to an at-birth, third-party adoption unless the father shows that promptly upon learning the mother was pregnant with his child, he came forward and demonstrated a full commitment to his parental responsibilities. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (Kelsey S.).) If the father makes this showing, parental rights may not be terminated absent a finding of the father’s unfitness as a parent. This is so even if the court finds it otherwise to be in the child’s best interest to terminate parental rights, and to let the adoption proceed. (Ibid.; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051-1052 (Michael H.).)
B.N. (father) is the biological father of the minor, D.M. (the minor), born in May 2012. In this section 7662 proceeding to free the minor for adoption, father appeals after the trial court found he failed to meet the burden of proving he is a presumed father under Kelsey S. Father contends “[t]he ruling reflects an incorrect understanding of the Kelsey S. rule, and a failure to correctly apply it.” We disagree, and conclude substantial evidence supports the trial court’s finding. Accordingly, we affirm the judgment terminating father’s parental rights pursuant to section 7662 and freeing the minor for adoption by K.M. and J.M., the prospective adoptive parents (adoptive parents).
Father also petitions for a writ of habeas corpus or, in the alternative, writ of mandate, which we have consolidated with his appeal.[2] In his petition, he contends he received ineffective assistance of counsel because his counsel did not seek to have court-ordered, in-home visits with the minor in order to have him declared a presumed father under section 7611, subdivision (d).[3] He also claims his counsel was ineffective in failing to present additional evidence indicating his commitment to his parental responsibilities under Kelsey S. Father claims it is reasonably probable, but for these omissions, the outcome of the trial would have been more favorable to him. Again we disagree, and deny the petition.

Following his admission to felony murder while armed with a firearm, the minor, who was 15 years old at the time of the offense, was committed to the Department of Juvenile Justice (DJJ)[1] with a maximum term of confinement of 25 years to life. He contends the dispositional order should be reversed because the prosecutor engaged in prejudicial misconduct, the court considered improper victim impact evidence and abused its discretion in committing him to DJJ for an excessive maximum term of confinement, which constitutes cruel and unusual punishment in violation of the California Constitution. He also contends his trial counsel rendered ineffective assistance. We find no merit in these contentions and shall affirm.

Anthony Joseph Padilla, Jr. appeals from a judgment entered following his “open” plea of no contest to one count of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and one count of driving on a revoked driver’s license (Veh. Code, § 14601.1, subd. (a)). As part of the negotiated plea, appellant also admitted two prior convictions for possession of a controlled substance for sale (Health & Saf. Code, § 11370.2, subd. (c)), and admitted that he had served two prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b).
The sole issue raised on appeal is his contention that the trial court erroneously imposed a discretionary $600 aggregate drug program fee, pursuant to Health and Safety Code section 11372.7, without finding that he had the ability to pay the fee. We affirm.

A jury convicted defendant Jotman Salazar-Zavala of rape upon evidence that defendant had unlawful sexual intercourse with an unconscious woman during a drinking party. (Pen. Code, § 261, subd. (a)(4).) The court sentenced defendant to three years in prison. Defendant contends the trial court erred in denying defense counsel’s request to excuse a prospective juror for cause and thereby forcing defendant, who had exhausted his peremptory challenges, to accept a biased juror. Finding no error, we shall affirm the judgment.

Petitioner Joseph Rolando Jack appeals from orders of the probate court denying his petition to appoint a probate conservator for the person and estate of his father Raymond Jack (father) and to compel the deposition of father, and from an order granting father’s motion to expunge a notice of lis pendens which the petitioner filed against his father’s former home. By the time of the hearing on these motions, father had moved with his new wife to Georgia and petitioner construes the court’s order denying the conservatorship petition as based on the erroneous view of the court that it had lost jurisdiction as a result of the move. The probate court was under no such misapprehension. Its orders reflect the well-supported conclusion that the appointment of a conservator at that time was not justified. [1]

Plaintiff Christina M. Sagonowsky, individually and as Executor for the Estate of Leocadia Sagnowsky (Sagonowsky), appeals after the trial court granted the motion of defendant Curtis Kekoa, Jr. (Kekoa) for disqualification of Sagonowsky’s counsel, Bradley R. White, for reviewing and utilizing certain attorney-client privileged emails and voicemails, in this malicious prosecution action.[1] This appeal is only the latest in an ongoing series of legal proceedings between former spouses Sagonowsky and Kekoa. Sagonowsky contends the trial court erred in disqualifying White from representing her in this action and ordering her to return communications between Kekoa and his former attorney, Robert Sprague, claiming that Kekoa’s motion was an abusive tactic meant to prevent the fair resolution of the malicious prosecution case.

A landlord appeals from an order denying a special motion to strike a retaliatory eviction cause of action in the complaint of former tenants as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure section 425.16,[1] the anti-SLAPP statute. The landlord contends that although the trial court correctly determined that the anti-SLAPP statute applied to the challenged cause of action, the court erred in concluding that the tenants established a probability of prevailing on the merits. We affirm.

Law enforcement officers found suspected methamphetamine and approximately six “white oval shaped pills” in a car appellant Joshua Eugene Bolen was driving. The People charged him with various crimes, including possession of methadone (Health & Saf. Code, § 11350). At trial — and over appellant’s objection — the court permitted a Walgreen’s pharmacist to testify the pills were methadone. The pharmacist testified he entered the imprint on the pills into a program used by Walgreen’s called “facts and comparisons” and the program generated the chemical composition of the pills: methadone. The pharmacist also testified the picture of the methadone pills in the program was identical to the pills found by law enforcement officers. A jury convicted appellant of various crimes, including possession of methadone, and sentenced him to state prison.

This case returns to us upon transfer from the California Supreme Court, with instructions to vacate our previously issued opinion and reconsider the matter in light of intervening authority from that court and the United States Supreme Court. Jared Thomas Alger was convicted of voluntary manslaughter, felony false imprisonment and misdemeanor assault. Based on our analysis of then-existing authority, we reversed the convictions, finding that appellant’s constitutional right of confrontation was violated because the evidence presented at trial concerning the results of the victim’s autopsy was not delivered by the pathologist who performed the autopsy. We now conclude no reversible error occurred with respect to the autopsy testimony. As we did before, we reject appellant’s additional contentions that the court erred in admitting some of the statements he made to the police and that the evidence was insufficient to support the manslaughter conviction. We additionally reject appellant’s claim that the trial court abused its discretion in denying his request for a continuance to allow retained counsel to replace the public defender, an issue we found unnecessary to reach in our previous opinion. Accordingly, we now affirm the convictions.

A.L. was adjudged a ward of the juvenile court after he admitted two counts of felony vandalism valued at over $400 (Pen. Code, § 594, subds. (a), (b)(1)), a count of felony carrying a concealed dirk or dagger (former Pen. Code, § 12020, subd. (a)(4), now § 21310), a count of possession of alcohol by a minor (Bus. & Prof. Code, § 25662), a count of possession of burglar’s tools (Pen. Code, § 466), and two counts of misdemeanor vandalism (id. § 594, subds. (a), (b)(2)(A)). The juvenile court initially placed A.L. on probation, subject to numerous terms and conditions. A Welfare and Institutions Code section 777 petition was filed, alleging that A.L. violated his probation.[1] A.L. admitted the violation, and after a contested dispositional hearing, the juvenile court continued A.L. as a ward of the court and ordered him to remain on probation and participate in the Pathways to Excellence, Achievement and Knowledge (PEAK) program.
A.L. appeals the order finding that he violated his probation, and the order continuing him on probation with the requirement that he participate in the PEAK program. A.L. argues that the juvenile court abused its discretion by ordering his participation in the PEAK program, that the juvenile court failed to affirmatively state on the record whether some of his admitted offenses constituted felonies or misdemeanors, and that two of his probation conditions require modification to include a knowledge requirement. For the following reasons, we modify the challenged probation conditions and remand to the juvenile court for the limited purpose of declaring on the record whether A.L.’s offenses were felonies or misdemeanors. In all other respects, the juvenile court’s order is affirmed.

Defendant Huy The Luu appeals from a judgment sentencing him to four years and four months in state prison following his admission of a probation violation. Defendant’s counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal, and that an independent review under Wende was being requested. We notified defendant of his right to submit a written argument on his own behalf. Defendant has filed a supplemental letter brief arguing that the trial court violated his due process rights, that his trial counsel rendered ineffective assistance of counsel, and that the trial court failed to provide him with documents.[1]

Defendant Huy The Luu appeals from a judgment sentencing him to four years and four months in state prison following his admission of a probation violation. Defendant’s counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal, and that an independent review under Wende was being requested. We notified defendant of his right to submit a written argument on his own behalf. Defendant has filed a supplemental letter brief arguing that the trial court violated his due process rights, that his trial counsel rendered ineffective assistance of counsel, and that the trial court failed to provide him with documents.[1]

Defendant Julian Jose Martinez was convicted after a jury trial of four counts of aggravated sexual assault by oral copulation of a child under the age of 14 years of age (Pen. Code, § 269, subd. (a)(4)). The court in a bench trial later found true (1) the allegation that defendant had previously been convicted of a violent or serious felony, or strike offense, and (2) the allegation that each of the charged offenses constituted serious felonies. In February 2012, defendant was sentenced to 120 years to life in prison, consecutive to 20 years.
Defendant claims on appeal that the court erred in admitting irrelevant and prejudicial evidence: namely, that the victim suffered from seizures about four years after the last alleged assault and, for that reason, he moved out of the area a few months before trial. He contends that this evidence was used improperly by the prosecution to garner sympathy for the victim. He argues further that, even if the evidence had any relevance, it should have been excluded under Evidence Code section 352[1] because its probative value was substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. As to the second argument, defendant asserts that if his trial counsel failed to object to the evidence in court under section 352, his failure to do so constituted prejudicially ineffective assistance of counsel.
We conclude that the court did not abuse its discretion by admitting the challenged evidence over defendant’s relevance objection. We hold further that even though trial counsel failed to preserve an objection to the evidence under section 352, such failure did not constitute ineffective assistance of counsel warranting the relief sought by defendant. Accordingly, we will affirm the judgment.

In Santa Cruz County case No. F19909, a jury convicted defendant Thomas Henry Silva of misdemeanor violating a criminal protective order by threat or violence (Pen. Code, § 166, subd. (c)(4), count 3),[1] dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2), count 4), and dissuading a witness from testifying (id. subd. (a)(2), count 5). It could not reach a verdict on counts charging criminal threat, assault with a deadly weapon, and intimate partner battery (counts 1, 2, and 6). The trial court dismissed counts 1, 2, and 6 in the interest of justice, revoked probation in Santa Cruz County case Nos. WF00879 and W13885, and sentenced defendant to 12 years and eight months in prison. The sentence included a five-year serious-felony sentence enhancement. (§ 667, subd. (a)(1) [person convicted of a serious felony shall receive five-year enhancement for each prior serious-felony conviction].) On appeal in Santa Cruz County case No. F19909, defendant contends that the trial court erred by (1) coercing the jury to return verdicts on counts 3 and 4 after an impasse, and (2) imposing the serious-felony enhancement. We disagree and affirm the judgment. On appeal in Santa Cruz County case Nos. WF00879 and W13885, defendant raises no issues. We therefore also affirm those judgments.