CA Unpub Decisions

On June 7, 2011, the Riverside County District Attorney filed a Welfare and Institutions Code section 602 petition, alleging that appellant and defendant C.C. (minor) committed battery. (Pen. Code, § 242.) On June 22, 2011, the district attorney filed a second petition alleging that minor committed misdemeanor vandalism, causing damage of $400 or more. (Pen. Code, § 594, subd. (b).) Minor admitted the allegations in both petitions. The juvenile court placed him on probation, pursuant to Welfare and Institutions Code section 725, subdivision (a), in his mother’s home. One of his probation conditions prohibited him from possessing graffiti/scribing instruments, including ink markers. Subsequently, the district attorney filed a third petition alleging that minor possessed a felt tip marker or other marking substance with the intent to commit vandalism and graffiti. (Pen. Code, § 594.2.)[1] After a contested hearing, the court found the allegation true and placed minor on probation for six months and continued him in his mother’s custody. The court ordered him to pay several restitution fines, including a $500 fine for the damage done to a mailbox in connection with the June 22, 2011 petition.
On appeal, minor contends: (1) there was insufficient evidence to support the court’s true finding that he possessed permanent markers with the intent to commit vandalism or graffiti; and (2) there was insufficient evidence to support the $500 restitution fine. We affirm.

In case Nos. RIF141923[1] and RIF147801,[2] defendant pled to numerous drug- and theft-related charges, as well as one assault with a deadly weapon on a police officer allegation (Pen. Code, § 245, subd. (c)),[3] and several other charges including resisting arrest (§ 148, subd. (a)(1)), evading an officer (§ 2800.2), and failure to appear (§ 1320, subd. (b)). Defendant also admitted to six separate out-on-bail enhancement allegations (§ 12022.1), five prior prison term allegations (§ 667.5, subd. (b)), one prior serious felony allegation (§ 667, subd. (a)), and one prior strike allegation (§§ 667, subds. (c), (e)(1) & 1170.12, subd. (c)(1)). In return, on both cases, defendant was sentenced to a total term of 30 years in state prison.
In case No. RIF141923, defendant received six actual days of presentence custody credit and two days of conduct credit, for a total of eight days of presentence custody credit. In case No. RIF147801, defendant received 855 actual days of presentence credit and 426 days of conduct credit, for a total of 1,281 days of presentence custody credit. On appeal, defendant contends that he is entitled to additional presentence conduct credit pursuant to the new provisions of section 4019 and the equal protection clause. We reject these contentions and affirm the judgment.

Defendant was charged four separate times with various charges for her involvement in the murder of a man by her boyfriend, and her first three cases were dismissed. Defendant was finally charged with being an accessory after the fact pursuant to Penal Code section 32.[1] She brought a motion to dismiss the complaint on the grounds that the charges of violating section 32 had already twice been dismissed pursuant to section 1387. Her motion was denied. She pleaded guilty and was sentenced to three years in state prison.
Defendant claims on appeal that the trial court erred by refusing to dismiss the charges under section 1387, subdivision (a).

Pursuant to a plea agreement, defendant and appellant Brian Craig Blondet pled guilty to receiving stolen property. (Pen. Code, § 496, subd. (a).)[1] In return, two prior allegations were stricken (§ 667.5, subd. (b)), and defendant was sentenced to two years in state prison.
Following a subsequent restitution hearing, defendant was ordered to pay $14,032.63 in restitution. Defendant’s sole contention on appeal is that the trial court abused its discretion in ordering restitution for economic losses that were not caused by defendant’s convicted criminal conduct and, therefore, the matter must be remanded for a new restitution hearing. We reject this contention and affirm the judgment.

Defendant and appellant, Rebecca Rachel Modrall, was charged with one count of extortion. (Pen. Code, § 518.)[1] At trial, the prosecution argued that the jury could find defendant guilty based on any one of four possible acts of extortion. The court instructed the jury with CALCRIM No. 3500 as to the requirement of juror unanimity. The jury found defendant guilty. The court granted defendant probation on the condition, among others, that she serve 180 days in custody and pay $28,200 in restitution.
On appeal, defendant contends the court prejudicially erred by giving the unanimity instruction. We reject this argument and affirm the judgment.

Defendant Alejandro Hernandez Villalobos admittedly shot and killed his estranged wife.
After a jury trial, defendant was found guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189), with an enhancement for personally and intentionally discharging a firearm, causing death (Pen. Code, § 12022.53, subd. (d)). He was sentenced to 50 years to life in prison, plus the usual fines and fees.
Defendant now contends:
1. The trial court erred by excluding expert testimony regarding defendant’s mental condition.
2. Defense counsel rendered ineffective assistance by failing to request a jury instruction that provocation can reduce first degree murder to second degree murder.
We find no error. Hence, we will affirm.

On March 24, 2011, the trial court issued its order sustaining the demurrer of defendants OneWest Bank, FSB; Seaside Financial Corporation; and T.D. Service Company to plaintiff Charles R. Crites II’s second amended complaint. Plaintiff then filed his notice of appeal from the judgment dismissing his complaint.
On appeal, plaintiff argues that he successfully pled various causes of action arising from defendants’ foreclosure of his home in Corona. The second amended complaint attempts to allege five causes of action, entitled (1) violation of Civil Code section 2923.5, (2) fraud, (3) violation of Business and Professions Code section 17200, (4) quiet title, and (5) violation of Civil Code section 2932.5.[1]

J. J. (appellant) is the biological father of L. J. He appeals from a court order freeing L. J. from appellant’s parental custody and control under Family Code[1] section 7822. On appeal, appellant argues there was insufficient evidence to prove he intended to abandon L. J. within the meaning of section 7822. We disagree and affirm.

A jury convicted defendant Bryant Keith Briggs of residential robbery ( "Pen. Code, § 211" Pen. Code, § 211)[1], residential burglary ( "§ 459" § 459), attempted murder ("§§ 664/187" §§ 664/187), false imprisonment ( "§ 236" § 236), and possession of cocaine base for sale ("Health & Saf. Code, § 11351.5" Health & Saf. Code, § 11351.5). The jury further found true allegations that defendant personally inflicted great bodily injury on the victim and personally used a firearm in the commission of the offense. ("§§ 12022.7, subd. (a), 12022.5, subd. (a)" §§ 12022.7, subd. (a), 12022.5, subd. (a).)
After the trial court denied defendant’s motion for new trial, it sentenced him to a term of 33 years and 8 months to life in prison.
Defendant argues: (1) the prosecutor’s use of peremptory challenges to remove two prospective jurors was based on group bias, (2) there was insufficient evidence that he possessed crack cocaine, (3) the trial court erred in instructing the jury it could consider the witness’s level of certainty in evaluating an eyewitness’s identification, and (4) he received ineffective assistance of counsel.
We shall affirm the judgment.

The trial court found defendants Doug Tirri and his former spouse, Joann Tirri, liable for fraud in failing to disclose to plaintiffs Roy and Jennifer George that the home they sold to them was not constructed with required permits and was defective. Only Mr. Tirri appeals from the judgment. He claims the trial court committed evidentiary errors, errors in awarding damages, and that it was biased. Plaintiffs request we impose sanctions for a frivolous appeal. We conclude none of defendant’s arguments have merit and we affirm the judgment. We also deny plaintiffs’ request for sanctions.

A jury convicted defendants J. Douglas Halford and Mark Hernandez of the second degree murder of a homeless man, Michael Wentworth, and the attempted murder of the decedent’s homeless friend, Randy Terrell. Terrell taunted and threatened defendants for harassing Danny “Old Man Dan” Rasmussen, his 62-year-old homeless neighbor, and defendants, believing Terrell was another man who had beaten their 56-year-old diabetic friend and mentor, Danny Hughes, pursued Terrell and a fight ensued. The jury rejected defendants’ claims of self-defense. On appeal, both defendants assert instructional error. We affirm.

Francisco M. (presumed father) and Susana G. (mother) seek extraordinary relief from a September 19, 2012 order denying reunification services and setting a permanency planning hearing for their son F.G. after the juvenile court found that F.G. suffered severe physical abuse while in their care. (Welf. & Inst. Code, §§ 300, subd. (e) 361.5, subd. (b)(5).)[1] We deny the petitions for extraordinary writ.

This dependency case pertains to W. H. (minor). On appeal, Paula H. (mother) challenges (1) the order denying her petition pursuant to section 388 of the Welfare and Institutions Code[1] and (2) the order terminating her parental rights pursuant to section 366.26. After mother’s court appointed counsel filed a no issues brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.), mother filed a brief to identify appellate issues for our consideration. In addition, she filed an application to expand the appointment of appellate counsel to file a petition for writ of habeas corpus. She claims that she received ineffective assistance of counsel at the section 366.26 hearing when her attorney failed to argue that mother’s parental rights should not be terminated due to the beneficial relationship exception.
The appeal is dismissed because mother failed to raise an arguable issue for reversal of the juvenile court’s orders. In addition, we deny mother’s application because she has not shown good cause to expand the appointment of counsel to file a petition for writ of habeas corpus.
Our analysis is set forth below.

Angelina R. (Mother) is the mother of twin girls, A.R. and R.R., born in February 2010. She seeks writ intervention by this court to overturn the trial court’s order terminating reunification services and setting an implementation hearing under Welfare and Institutions Code section 366.26.[1] As we shall explain, Mother has not presented a sufficient basis to justify intervention, and we shall deny her petition.[2]
In its answer to Mother’s petition, the Department of Children and Family Services (DCFS) points out, Mother’s petition fails to follow the requirements of California Rules of Court, rule 8.452, subd. (b), applicable to her petition. It neither includes a factual summary nor refers to relevant case law. The petition does address drug testing. In that respect, Mother claims that some of the drug tests in which positive findings were reported are erroneous because the results actually were negative. She also disputes the trial court’s conclusions that DCFS made reasonable efforts to reunify her with her children in that it did not liberalize visitation. Mother was represented by counsel before the trial court, but is representing herself before this court. While we make some allowance as to her failure to fully comply with rule 8.452, we cannot reweigh the evidence. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) We have reviewed the record before the trial court, and find the challenged ruling is supported by the record and well within the trial court’s discretion.
We briefly summarize some of the major points. A toxicology screen taken of the children at birth was positive for phencyclidine (PCP and benzodiazepine), indicating that Mother had ingested those drugs while pregnant and shortly before birth. Her parental rights with respect to another child, Keith, had been terminated in an earlier dependency proceeding. Mother had a long-standing drug problem, going back as long as 19 years, during which she used methamphetamine, PCP and other drugs. The reunification period had been problematic, to say the least. It had extended over a 27-month period, far beyond the normal, and had involved eight placements. The reunification plan required drug testing. Mother’s record for that was mixed. There were periods during which she regularly reported for testing, and for which the tests were negative. But there also were positive tests, at least one of which was quite recent, and a large number of no-shows. Mother completed some programs, but was uncooperative with DCFS and program personnel at others. A psychologist, Dr. Shah, had provided a favorable evaluation, but asked that it be disregarded because it was entirely based on information provided by Mother, who had been selective and had declined further interviews.
Mother did not physically appear at the hearing at which the court made the ruling from which the present petition is taken. But she did inform her attorney that she wanted to “fire” her. The court conducted a Marsden hearing (based on People v. Marsden (1970) 2 Cal.3d 118) in which she presented her reasons at an in camera hearing where she appeared by telephone); her request was denied. Her attorney asked the court to take the extraordinary step of ordering further reunification services despite the more than 2-year period during which they already had been furnished. Father’s counsel joined in that request.[3] Counsel for the children and for DCFS each argued against the requested extension, and urged the court to set a hearing for termination of parental rights. The trial court denied Mother’s request and set the case for the section 366.26 hearing. Referring to Mother’s section 388 request for reconsideration of its earlier ruling terminating reunification services, the court summarized its reasons in the following terms: