CA Unpub Decisions

Plaintiffs and respondents City of Eureka and the People of the State of California (collectively, City) filed suit to abate alleged nuisances and other substandard conditions at 26 properties owned by defendants and appellants Floyd Squires, Floyd E. Squires, Floyd E. Squires III, Betty J. Squires, FB Squires Family Trust, and Betty J’s Building, Inc. (collectively, Squires). After the trial court appointed a provisional receiver for the properties, Squires filed this appeal. We offered the parties the opportunity to submit supplemental letter briefs addressing (1) whether this court should take judicial notice of a subsequent trial court order appointing a receiver as to six of the properties, but declining to appoint one as to the other 20 properties, and (2) whether this appeal should be dismissed as moot. After considering the parties’ supplemental letter briefs, we take judicial notice of the trial court’s subsequent receivership order and dismiss this appeal as moot. We also deny as moot a motion by City to dismiss this appeal on other grounds.

In this appeal of the juvenile court’s jurisdictional order, the mother of a dependent child argues that the juvenile court failed to obtain a knowing, intelligent, and voluntary waiver of her trial rights. She also contends that there was insufficient evidence to support the court’s jurisdictional findings.
We conclude, on this record, that the mother did not submit on the issue of jurisdiction at the contested jurisdiction hearing. The juvenile court was therefore not required to obtain a waiver of trial rights as a part of that hearing. We also find substantial evidence supporting the court’s order on jurisdiction, and will affirm the judgment.

In this appeal of the juvenile court’s jurisdictional order, the mother of a dependent child argues that the juvenile court failed to obtain a knowing, intelligent, and voluntary waiver of her trial rights. She also contends that there was insufficient evidence to support the court’s jurisdictional findings.
We conclude, on this record, that the mother did not submit on the issue of jurisdiction at the contested jurisdiction hearing. The juvenile court was therefore not required to obtain a waiver of trial rights as a part of that hearing. We also find substantial evidence supporting the court’s order on jurisdiction, and will affirm the judgment.

It was alleged in an information filed March 7, 2011, that appellant, William Hampton Roesing, committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and that he had served two separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)). A jury convicted appellant of the lesser included offense of grand theft from a person (Pen. Code, § 487, subd. (c)), and in a separate proceeding appellant admitted the two prior prison term enhancement allegations. The court imposed a prison term of four years, consisting of the two-year midterm on the substantive offense and one year on each of the two prior prison term enhancements.
On appeal appellant argues that the prosecution violated his constitutional right to due process of law by commenting on (1) his failure to testify in his defense (Griffin error)[1] and (2) his silence after he was advised of his right to remain silent (Doyle error).[2] He acknowledges that he has waived this claim by his counsel’s failure to object below, but argues that this failure deprived him of his constitutional right to the effective assistance of counsel. Appellant also contends the court erred in failing to order the district attorney to file a petition for the commitment of appellant to the California Rehabilitation Center (CRC) pursuant to Welfare and Institutions Code section 3051 (section 3051). We affirm.

On February 22, 2011, a complaint charged defendant and appellant Frank Alex Medrano with (1) carrying a loaded firearm by a gang member under Penal Code[1] section 12031, subdivision (a)(2)(C) (count 1); possession of a firearm by a felon with a prior under section 12021, subdivision (a)(1) (count 2); and (3) street terrorism under section 186.22, subdivision (a) (count 4). As to counts 1, 2, and 4, the complaint also alleged a prior strike offense under section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i); and three prison prior convictions under section 667.5, subdivision (b). As to counts 1 and 4, the complaint further alleged a prior serious felony conviction under section 667, subdivision (a)(1).
On August 30, 2011, defendant pled guilty to count 4 and admitted the strike allegation, in exchange for a stipulated sentence of the upper term of three years, doubled for a total term of six years. The remaining charges and allegations were dismissed.
On November 17, 2011, defendant requested to withdraw his guilty plea. The trial court appointed a conflict panel attorney to represent him.
On March 23, 2012, after hearing defendant’s motion to withdraw his plea, the trial court denied the motion. Thereafter, the court sentenced defendant to the stipulated sentence of six years.
On April 3, 2012, defendant filed a timely notice of appeal and requested a certificate of probable cause. The court denied the request for a certificate of probable cause. On April 12, 2012, defendant filed an amended notice of appeal. The notice indicated that the appeal was based on the sentence or matters occurring after the plea.

Defendant Jeremias Zabala Gonzalez appeals from his conviction of a forcible lewd act (Pen. Code,[1] § 288, subd. (b)(1), count 1); aggravated sexual assault (§ 269, subd. (a)(1), § 261, subd. (a)(2), counts 2 through 6); and unlawful sexual intercourse with a child 10 years or younger (§ 288.7, subd. (a), counts 7 through 11). Defendant contends: (1) his convictions of violating section 288.7 must be reversed because the jury was not required to find that the acts occurred before the effective date of that statute; (2) the victim’s “generic testimony” was insufficient to support the verdict on some of his convictions; (3) the term “10 years of age or younger,” as used in section 288.7, subdivision (b) means the statute does not cover a child after her 10th birthday; and (4) his sentence for count 1 must be stayed under section 654. We conclude defendant’s sentence for count 1 must be stayed under section 654 and his convictions of four counts under section 288.7 must be reversed and the matter remanded for resentencing.

Bennie W. and Stacy W. (together, the parents) appeal juvenile court orders terminating their parental rights to their minor children, Christopher W. and Ryan W. (together, the minors) under Welfare and Institutions Code section 366.26.[1] The parents contend the court erred by summarily denying Bennie's section 388 modification petition, by which he sought to have the minors returned to his custody. They also challenge the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption did not apply to preclude terminating their parental rights. We affirm the orders.

A jury convicted Dominic Georgepolous of burglary (Pen. Code,[1] § 459) and possession of a forged item (§ 475, subd. (a)). The court thereafter found six prison priors to be true. (§ 667.5, subd. (b).)
Appellant was sentenced to a split term of four years in county jail plus four years mandatory supervision upon release. Appellant was awarded 173 actual days of custody credits plus 86 days of credits pursuant to section 4019. The court also imposed a $3,200 restitution fine (§ 1202.4, subd. (b)).
Georgepolous appeals contending he is entitled to additional section 4019 credits and that the court erred in ordering a $3,200 restitution fine. As to the latter issue appellant recognizes he did not oppose the amount of the fine in the trial court and that it is likely the issue will be deemed forfeited on appeal. He therefore argues his trial counsel was ineffective for failing to object to the amount of the fine.[2]
The People have responded and have correctly conceded that since appellant was sentenced under the realignment statute, to impose a lesser amount of custody credits based upon an earlier statute would amount to an increase in penalty in violation of the ex post facto limitation of the federal Constitution. (Weaver v. Graham (1981) 450 U.S. 24.) Accordingly, the People concede that appellant is entitled to an additional 87 days of section 4019 credits. We will order the judgment modified accordingly. Regarding the restitution fine, we will find the issue forfeited by failure to raise it in the trial court. We will also find there is nothing in this record on which we could base a reasonable analysis of the ineffective assistance of counsel claim. Any remedy that might be available to appellant must be separately pursued by a petition for writ of habeas corpus filed in the trial court.[3]

Manuel Medina, Jr. pleaded guilty to attempted murder of his wife (Pen. Code,[1] §§ 664/187) and admitted he personally inflicted great bodily injury (§ 12022.7, subd. (a)). Medina was sentenced to a determinate term of 12 years in prison. Following three restitution hearings, the court ordered restitution to be paid to the victim in the amount of $28,221.32.
Medina appeals challenging only a portion of the restitution order imposed by the court. Specifically, he contends the court erred in ordering restitution in the amount of $25,170.95 billed by the University of California San Diego (UCSD) hospital. He contends there is not sufficient evidence of the amount actually owed by Medina's wife. Medina also contends, for the first time on appeal, that ordering restitution in the amount selected by the court amounts to an excessive fine in violation of the Eighth Amendment.

In September 2008, pursuant to plea bargain, defendant Terrille Rigmaden pleaded no contest to inflicting corporal injury on a cohabitant, admitted having incurred a prior strike conviction and admitted that he had served a prior prison term. He was sentenced to state prison.
The trial court awarded 29 days’ actual time credit and 14 days’ conduct credit, for a total of 43 days of presentence custody credits. In so doing, the court applied the formula mandated by Penal Code section 4019 (section 4019) as it existed at the time of sentencing, in which six days’ total credit were allowed for every four days spent by the defendant in custody. (See In re Marquez (2003) 30 Cal.4th 14, 25-26.)
Defendant’s sole contention on appeal is that he is entitled to the retroactive application of the increased rate for earning presentence conduct credits provided by amendments to former section 4019. “In conjunction with the ‘2011 Realignment Legislation addressing public safety’ (Stats. 2011, ch. 15, § 1; see Pen. Code, § 1170, subd. (h)), section 4019 was amended to provide for deductions for every four days of confinement, so that if all possible days are earned, four days will now be deemed served for every two days of actual confinement. (§ 4019, subds. (b), (c) & (f).) Originally, this change was to apply to those confined for crimes committed on or after July 1, 2011. (Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011.) By further amendment made before the realignment legislation became operative, this date was changed to October 1, 2011. (Stats. 2011, ch. 39, § 53, eff. June 30, 2011.) Pursuant to the October 1, 2011, amendment (Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011), subdivision (h) of section 4019 presently states: ‘The changes to this section . . . shall apply prospectively and shall apply to prisoners who are confined to a county jail . . . for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law.’” (People v. Ellis (2012) 207 Cal.App.4th 1546, 1549-1550.)

Appointed counsel for defendant Willie Cavil Harris has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has filed a supplemental brief. As we explain, we shall modify the judgment to include the statutory bases for all fines and fees, and order the abstract of judgment amended accordingly. We shall affirm the judgment as modified.

Defendant David Michael Springle appeals the sentence imposed following his plea of no contest to transporting heroin. (Health & Saf. Code, § 11352, subd. (a).) Defendant contends: (1) he should have been granted Proposition 36 probation, as there is not substantial evidence that he did not transport the heroin for personal use; and (2) there is not substantial evidence he had the ability to pay the booking and jail classification fees. As a result of defendant’s plea agreement, we find he is barred from raising the issue of his entitlement to Proposition 36 probation on appeal. We further find the statute under which the criminal justice administration fees were imposed in this case does not require a finding of an ability to pay. Accordingly, we shall affirm the judgment.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND[1]
Defendant was charged with possessing heroin for sale (Health & Saf. Code, § 11351), possessing methamphetamine for sale (ibid.), possessing oxymorphone for sale (ibid.), possessing alprazolam for sale (id., § 11375, subd. (b)), transporting heroin (id., § 11352, subd. (a)), transporting methadone (ibid.), and transporting oxymorphone (ibid.). Defendant entered into a negotiated plea whereby he pleaded no contest to transporting heroin in exchange for a low term sentence of three years in county jail. The remaining counts were dismissed with a Harvey[2] waiver.

Defendant Marcelino Silva, an inmate at Folsom State Prison serving a life term for murder, slashed a fellow inmate with a razor blade. A jury convicted defendant of assault with a deadly weapon with malice aforethought by a life prisoner (Pen. Code,[1] § 4500) and possession of a sharp instrument by an inmate (§ 4502). The trial court found true allegations that defendant had suffered two prior strike convictions (§ 667, subds. (b)-(i); 1170.12) and sentenced him to 27 years to life in prison. He appealed.
On appeal, defendant claims instructional error and that the trial court abused its discretion in failing to strike one of his strikes. Finding no error, we shall affirm.

Appointed counsel for defendant Eroablum Dean Turner has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.