CA Unpub Decisions

Defendant Dario Joseph Wozniski appeals a judgment following a jury trial during which he was convicted of five felony counts related to a sexual assault. On appeal, he asserts the trial court erred in his sentencing, because his conviction for attempted forcible oral copulation is a lesser included offense to assault with intent to commit oral copulation by force or fear or sexual penetration by force or fear. (Penal Code, §§ 220, 21a, 288a, subd. (c)(2).)[1]

Defendant Jesse John Vale was convicted, by jury trial, of carjacking (Pen. Code, § 215)[1] and second degree robbery (§§ 211, 212.5, subd. (c)). He admitted that he had four prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12), that he had three prior serious felony convictions (§ 667, subd. (a)), and that he had served a prior prison term (§ 667.5, subd. (a)). He was sentenced to an aggregate prison term of 42 years to life for the carjacking, with a concurrent aggregate term of 40 years to life for the robbery.
On appeal, defendant contends the trial court erroneously denied his Batson/Wheeler motion, which contested the prosecutor’s use of peremptory challenges to remove two prospective jurors with Hispanic surnames. (See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) For the reasons stated below, we disagree with defendant’s claim and will, therefore, affirm the judgment.

By means of a petition for a writ of mandate, B.R. (mother) challenges the juvenile court’s order restricting her visitation with her infant daughter, A.H. (the minor). Mother was initially denied reunification services because she had failed to reunite with her six other children, and her parental rights to those children had been terminated. Under such circumstances, the juvenile court had discretion to authorize visitation between mother and the minor. The court was acting within its authority when it limited the hours of visitation and required that visitation be monitored and occur at a neutral location. The maternal grandmother, who was supposed to monitor the visits, left mother alone with the minor. The maternal grandmother’s lapse in judgment could have necessitated a change in placement for the minor, which could, in turn, have negatively affected the minor’s stability and permanency. We find no error in the juvenile court’s order, and we therefore deny the petition for a writ of mandate.

A.D. (Mother) appeals from the order made at the review hearing held under Welfare and Institutions Code section 364 at which her two children were ordered to continue under supervision of the juvenile court. We dismiss the appeal as moot.

E.Z. was found to come within the provisions of Welfare and Institutions Code section 601[1] due to habitual truancy. The juvenile court adjudged E.Z. a ward of the court but did not remove her from the physical custody of her parent, S.D. (hereafter Mother). Instead, the court imposed several probation conditions, including a drug testing condition and a search condition. E.Z. contends the trial court erred in imposing these two conditions because they were not reasonably related to the offense of habitual truancy and there was no evidence she was using drugs or alcohol. We limit the drug testing condition to urine testing as required by law, and affirm the judgment in all other respects.

A jury found defendant Samuel Benitez guilty of resisting an officer (Pen. Code, § 69), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)). The court sentenced him to 3 years probation plus 180 days in custody to be served on weekends.
After defendant objected on the ground of hearsay, the acting supervisor of the county’s crime laboratory testified, based on notes made by an analyst, that a substance in defendant’s possession was methamphetamine. A report produced by the analyst to the same effect was introduced into evidence. The analyst who conducted the tests did not testify. The supervisor described the laboratory’s procedures and attested to the analyst’s expertise.

Sophia F. (mother) appealed from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her three-and-a-half-year-old daughter, N.C. (child or this child).[1] After reviewing the entire record, mother’s court-appointed appellate counsel informed this court she had found no arguable issues to raise in this appeal. Counsel requested, and this court granted, leave for mother to personally file a letter setting forth a good cause showing that an arguable issue of reversible error does exist. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.)
Mother has since submitted a letter in which she claims she “has been doing everything that it takes to get [this child] back into [her] custody” and they “had a very close bond together.” On review, we conclude mother has failed to make a good cause showing that an arguable issue of reversible error does exist.

A.B., mother, appeals from a judgment granting a petition, pursuant to Family Code section 7822,[1] declaring her daughter, K., free from her custody and control. The petition was brought by Loretta, mother’s mother and K.’s grandmother, and Angel, Loretta’s husband. The family court granted the petition to terminate mother’s parental rights. In its order, the family court also granted the petition to terminate K.’s father’s parental rights.[2]
Mother contends there is insufficient evidence to support the family court’s findings. She also contends that the family court failed to comply with the Indian Child Welfare Act (ICWA; 25 U.S.C., § 1901 et seq.). We agree with her latter contention and reverse and remand for the sole purpose of compliance with the ICWA. In all other respects, the order terminating mother’s parental rights is affirmed.

Appellant, F.E., appeals from a juvenile court disposition order in his Welfare and Institutions Code[1] section 602 proceeding. Appellant contends the order directing that he be housed at the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), pursuant to section 1752.16 violated constitutional ex post facto principles. We disagree and affirm.

Defendant, Keith Anthony Moore, challenges the total amount of conduct credits that he was awarded for time spent in county jail prior to commencement of his prison sentence. Defendant asserts that changes to Penal Code section 4019[1] permitting additional custody credits which occurred after his offense and while he was in local custody should apply to him and failure to do so violates the equal protection clauses of the Constitutions of California and the United States. We find no error and affirm the trial court’s judgment.

Defendant Jorge Armando Andrade was convicted in separate cases of being a felon in possession of ammunition and transporting methamphetamine. The only issues in this appeal concern the fines and fees included in his sentences.
We agree with Andrade that the restitution fine (Pen. Code, § 1202.4, subd. (b))[1] and the matching parole revocation restitution fine (§ 1202.45) in the ammunition case must be reduced from $240 each to $200 each. Also, the parties correctly agree that the processing fee (former § 1205, subd. (d)) must be $30 in that case, not the $45 the court imposed.
In the drug case, the court imposed a $240 restitution fine, and the record is unclear on whether it imposed any parole revocation restitution fine. Again, the restitution fine must be reduced to $200. We reject the People’s contention that a matching parole revocation restitution fine must be imposed for this offense, however. Since it is a county jail offense, there will be no parole for it, so the parole revocation restitution fine is inapplicable.
We will order the necessary corrections to the abstracts of judgment and affirm the judgments as modified.

After defendant Julia J. Benavides pleaded no contest to a single count of carrying a dirk or dagger in violation of former Penal Code section 12020, subdivision (a),[1] she was sentenced to 16 months in state prison. On appeal, Benavides raises an equal-protection challenge to her sentence, claiming she should have been sentenced to county jail pursuant to the 2011 Realignment Legislation addressing public safety (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex. Sess., ch. 12, § 1) (realignment). We dismiss the appeal because Benavides is attacking the validity of her plea, but has not obtained a certificate of probable cause. (Pen. Code, § 1237.5, subd. (b).)[2]

Defendant and appellant, D.W. (Father), is the father of D., a boy born in September 2012. D was taken into protective custody as an infant after his mother admitted she physically abused him by yanking his arm, causing it to fracture. It was then discovered that D. had four more fractures—two in each leg. The court found D. was a child described in Welfare and Institutions Code section 300, subdivision (e)[1] (severe physical abuse) and refused to offer reunification or family maintenance services to either parent. (§ 361.5, subd. (b).) The court ultimately terminated parental rights and placed D. for adoption.
Father appeals, claiming the court erroneously refused to conduct a hearing on his section 388 petition seeking reunification or family maintenance services for D. (§ 388.) Father seeks reversal of the orders denying his petition and terminating parental rights. We conclude no evidentiary hearing was required on the section 388 petition because it did not state a prima facie case of changed circumstances or best interests. We therefore affirm the challenged orders.

Defendant and real party in interest Nigel Ian Rodriguez (defendant) pleaded guilty on May 22, 2009, to possession of a controlled substance for sale (Health & Saf. Code, § 11378) and a misdemeanor charge of child endangerment. (Pen. Code, § 273a.) He was placed on probation and ordered to serve 180 days in jail and make payments on certain assessed fees. From the record it appears that he complied with all terms.[1]
However, on September 19, 2012, defendant filed a “motion to vacate judgment/petition for writ of error coram nobis” attacking his conviction. In this motion/petition he alleged that his plea had been “conditional upon drug test results indicating (1) that the substance tested is a controlled substance, and (2) that the substance is not mere residue.” (This “condition” is not reflected in the docket entries.) The motion/petition was supported only by a brief affidavit by counsel, in which she recited the purported “condition” and stated that “[a]fter the rendition of judgment, I received a copy of a laboratory report indicating that (1) the substance tested is not a controlled substance, or [sic] (2) the substance is mere residue.” She also declared that neither she nor defendant was aware of the results of the tests prior to the plea, and that the facts could not have been discovered “at any time substantially earlier than the time of this motion . . . .” No further details were provided. Although the declaration itself is silent on the point, the motion (verified by counsel) asserted that counsel received the lab report on July 28, 2011.