CA Unpub Decisions

A complaint was filed charging appellant with possession of a switchblade knife, a misdemeanor. After appellant had been arraigned and pled not guilty, the prosecution filed an amended complaint based on the same facts, without notice to appellant or leave of court, charging appellant with possession of a concealed dirk or dagger, a felony. Appellant demurred to the amended complaint, and moved to dismiss on the ground that he had not received a preliminary hearing within 10 days of his arraignment. The trial court overruled the demurrer and denied the motion to dismiss. After this court denied appellant’s petition for a writ of prohibition, appellant entered into a plea bargain, reserving his right to appeal. The trial court granted a certificate of probable cause.
Appellant contends that the trial court erred in permitting the prosecution to amend its misdemeanor complaint to charge a felony in the same proceeding. We conclude appellant has not shown he was prejudiced by any irregularity in the proceedings, and therefore affirm.

In this appeal, defendant International Fidelity Insurance Company (International Fidelity), challenges the trial court’s denial of its motion brought pursuant to Penal Code section 1305, subdivision (g), to vacate a forfeiture of bail.[1] We conclude that International Fidelity failed to prove, as required by section 1305, subdivision (g), that the San Francisco District Attorney’s Office refused to extradite two fugitives, who failed to appear in court and fled the country to Italy, after the fugitives were temporarily detained and identified by a local law enforcement agent. We therefore affirm the judgment.

Curtis Norris appeals from a judgment of conviction for second degree murder. On appeal, Norris contends the trial court improperly denied his motion to suppress two letters he wrote while in jail awaiting trial, letters that were later used as evidence at his trial. Norris further contends his trial counsel was ineffective because counsel failed to prevent the jury from seeing and hearing a portion of one of the letters in which Norris referred to the possible sentence he might serve if convicted. Finally, Norris asserts that the prosecutor committed misconduct in her closing argument by improperly impugning the integrity of defense counsel.
We find none of Norris’s contentions persuasive. Accordingly, we will affirm the judgment.

Appellant Solomon Demma appeals from a judgment dismissing his complaint against Dominican Hospital and its employees Vicki Miranda, George Jarrow, Nannette Mickiewcz, and Heidi Troutner (collectively Dominican). Demma claims the trial court erred in sustaining Dominican’s demurrer without leave to amend, asserting that his complaint sufficiently stated causes of action for general negligence and intentional torts, and that his claims are not barred by the statute of limitations under Code of Civil Procedure section 340.5.
Reviewing Demma’s complaint on the merits, we find it alleged matters barred by the applicable statute of limitations, and further that it failed to adequately state a claim. We will therefore affirm the trial court’s judgment in favor of Dominican.

Pursuant to a plea bargain, defendant Adam Henry Alfaro pleaded no contest to three counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a))[1] and admitted the allegation that he personally and intentionally discharged a firearm in the commission of the attempted murder charged in count one (§ 12022.53, subd. (c)). On appeal, defendant claims that the trial court failed to adhere to the sentence agreement, an error which is conceded by the People. We modify the judgment and affirm the judgment as modified.

As part of a plea bargain, defendant Steven Acosta pleaded no contest to charges of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)).[1] Acosta also admitted to having a prior strike conviction (§ 1170.12, subd. (c)(1)). In exchange for this plea, Acosta was to receive a sentence of no more than five years and four months in prison. At sentencing, after granting the prosecution’s motion to reduce Acosta’s conviction for participating in a criminal street gang to a misdemeanor, the trial court sentenced Acosta to 180 days on the misdemeanor charge, which was deemed served, and a consecutive four year sentence on the charge of possession for sale. Acosta was granted total credits of 129 days, consisting of 85 days of custody credit and 44 days of conduct credit.
On appeal, Acosta contends he was entitled to credits for the one year period he spent in presentence custody while serving a parole violation. In addition, he argues he is entitled to additional presentence conduct credits under the October 1, 2011 amendment to section 4019, even though the charged offenses were committed on November 7, 2009.
We reject both arguments and shall affirm the judgment.

Following a jury trial, Alex Alejo (appellant) was found guilty of two counts of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 644, counts one and two), shooting at an occupied motor vehicle (§ 246, count three),[1] shooting at an inhabited dwelling (§ 246, count four), two counts of assault with a firearm (§ 245, subd. (b), counts five and six), and one count of street terrorism (§ 186.22, subd. (a)). As to counts one through six, the jury found true the allegation that appellant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); and as to counts one, two, five and six, that he personally discharged a firearm within the meaning of section 12022.53, subdivision (c).
On November 2, 2011, the court sentenced appellant to 40 years to life in state prison, with a cumulative minimum eligible parole date of 30 years. Appellant filed a notice of appeal the same day.
The sole issue on appeal is whether appellant was denied the right to present a defense. We shall affirm the judgment.

A jury convicted defendant Michael Calderon of rape, forcible sexual penetration, forcible oral copulation, and dissuading a witness. The trial court sentenced defendant to 11 years in prison. On appeal, defendant contends that he received ineffective assistance of counsel because his counsel failed to move to strike prejudicial testimony by the victim as inadmissible hearsay, as character evidence, and as more prejudicial than probative. We disagree and affirm the judgment.

F.S. and G.A. are the mother and the presumed father, respectively, of now one-year-old H.A. Parents seek writ review (Cal. Rules of Court, rule 8.452) of the court’s order denying reunification services to mother and setting a Welfare and Institutions Code section 366.26 hearing to terminate the parental rights of both parents.[1] The court relied on the severe physical abuse and severe physical harm exceptions under section 361.5, subdivisions (b)(5) and (b)(6), to deny services to mother. Parents contend (1) no substantial evidence supports the court’s findings under those subdivisions, (2) the court violated mother’s right to due process because all parties, including Orange County Social Services Agency (SSA), had agreed mother would receive reunification services and therefore mother’s counsel called no witnesses and did not question any of the witnesses called by other parties at the jurisdictional and dispositional hearings, and (3) SSA did not provide the report mandated by subdivision (c) of section 361.5 since SSA assumed mother would receive services.[2] County Counsel and minor’s counsel have informed us they do not oppose parents’ petition. We agree with parents’ insufficient evidence contention and grant their petition for a writ of mandate.

A jury found defendant Jose Alfredo Oseguera guilty of committing a lewd act on a 14-year-old child at least 10 years his junior. (Pen. Code, § 288, subd. (c)(1); all further unspecified statutory references are to the Penal Code.) Oseguera contends the trial court erred by not instructing the jury sua sponte on the lesser offense of misdemeanor sexual battery under section 243.4, subdivision (e)(1). For the reasons expressed below, we affirm.

The People’s petition under Welfare and Institutions Code section 602 alleged minor Joel A. committed attempted first degree residential burglary with the intent to commit larceny.[1] (Pen. Code, §§ 664, subd. (a), 459, 460, subd. (a).) The court found minor came within the description of section 602 and found beyond a reasonable doubt he committed attempted first degree burglary. The court committed minor to juvenile hall for 120 days to be served concurrently with his 90-day commitment for a prior probation violation.
Minor contends no substantial evidence supports the court’s finding he intended to commit a felony on the victim’s property. We disagree and affirm.

In this family law dispute, Shannon Bettanini (Shannon)[1] appeals from the trial court’s denial of her motion to modify the permanent child custody order that granted Shannon and her former husband, Antonio Bettanini (Antonio), joint legal and physical custody of their daughter, A.B. In seeking a modification, Shannon argued based on alleged safety concerns that the custody arrangement should be returned to what it was under the earlier custody order in which she had sole physical custody and Antonio only had brief periods of visitation. The trial court was not persuaded and denied Shannon’s motion. This appeal followed.[2] Since Shannon has failed to demonstrate that the trial court abused its discretion, we affirm the judgment below.

Following the denial of her motion to suppress evidence (Pen. Code, § 1538.5), appellant, Brenda McGinnis, pled no contest to four felonies, viz., possession of a controlled substance for purposes of sale (Health & Saf. Code, § 11378), possession of a substance containing methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)), possession of diazapene (Health & Saf. Code, § 11350, subd. (a)), and unlawful possession of a firearm (Pen. Code, § 12025, subd. (b)(6)), and one misdemeanor, viz., possession of drug paraphernalia (Health & Saf. Code, § 11364). The court suspended imposition of sentence, placed appellant on three years’ probation and ordered that she serve concurrent one-year terms in county jail on the four felony counts and a concurrent term of 180 days on the misdemeanor count.
On appeal, appellant challenges the denial of her suppression motion. We reverse.

Appellant, Ronald Williams, pled no contest to possession of methamphetamine for sale (count 1/Health & Saf. Code, § 11378), being under the influence of methamphetamine (count 2/Health & Saf. Code, § 11550, subd. (a)), and possession of narcotics paraphernalia (count 3/Health & Saf. Code, § 11364, subd. (a)). Williams also admitted an allegation in count 1 that he had a prior conviction for violating Health and Safety Code section 11370.2, subdivision (c) and two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
On October 17, 2011, the court sentenced appellant to a four-year term with the final year of the term to be served on mandatory supervision.
On appeal, appellant contends the court erred when it denied his motion to suppress. We affirm.