CA Unpub Decisions

Following a bench trial, a judge pro tem awarded plaintiff Cecilia Vahedy damages of over $1.47 million for injuries she sustained in a motor vehicle accident while attending an “adventure camp” sponsored by defendant Jews for Jesus. Jews for Jesus and defendant Deborah Remigio, the driver of the van in which plaintiff was riding at the time of the accident, appeal from the judgment. Defendants contend: (1) the judge erred in failing to disqualify himself from the case; (2) the judgment is excessive and reflects the judge’s bias against them for seeking his removal; and (3) the judge erred in concluding plaintiff’s claims are not barred by a release agreement signed by her father before camp began. We reject these contentions and affirm the judgment.

V. F. is the father of J.R., who was born in August of 2012, and was adjudged a dependent of the court, and removed from the custody of his parents on November 26, 2012. The court denied Father reunification services, because it determined reunification was not in the best interest of the child.
Father filed a petition for an extraordinary writ seeking a reversal of the court’s decision.

On August 12, 2011, the Monterey County District Attorney filed a delinquency petition under Welfare and Institutions Code section 602, subdivision (a) alleging that 16-year-old A.A., a minor, committed residential burglary.[1] (Pen. Code, §§ 459, 460.) On December 13, 2011, after a contested jurisdiction hearing, the court sustained the petition. At the disposition hearing, the court declared the minor a ward of the court for 24 months, allowed him to remain in his home, and placed him on probation for two years under certain terms and conditions.
On appeal from the jurisdiction finding and disposition order, the minor claims the court erred in failing to conduct a proper inquiry concerning whether he was suitable for deferred entry of judgment (DEJ) and in failing to exercise its discretion concerning whether to grant it. The minor further claims that some of the conditions of probation are vague and overbroad and thus constitutionally defective.
We reverse the disposition order and remand for further DEJ proceedings.

Defendant Jesse Ray Taylor raises an interesting problem of criminal law in this appeal: May one spouse be convicted of robbery based on a violent taking of community property from the other spouse? Unfortunately for defendant, a California appellate court has already answered this question in the affirmative with regard to theft crimes, so long as there is substantial evidence that the larcenous lover intends to permanently deprive his spouse of her interest in the community property. (People v. Llamas (1997) 51 Cal.App.4th 1729, 1739-1740 (Llamas).) We reject defendant’s invitation to part ways with Llamas and additional cases providing the theoretical underpinnings for the holding in Llamas. One spouse can rob another spouse of community property if he or she takes community property from the possession of the other spouse with the intent to permanently deprive the other spouse of his or her interest in the community property. We also find no merit in defendant’s related assertions of instructional error in connection with his robbery conviction.

This is a second appeal by defendant and appellant Isaac Fermin Arriaga. Defendant was originally convicted of two counts of committing a lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)); one count of committing a lewd act on a child age 14 or 15 years while being at least 10 years older than the child (Pen. Code, § 288, subd. (c)(1)); one count of willfully inflicting corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a)); three counts of willfully inflicting cruel or inhuman corporal punishment upon a child (Pen. Code, § 273d, subd. (a)); two counts of willfully causing child abuse likely to produce great bodily harm (Pen. Code, § 273a, subd. (a)); and two counts of willfully disobeying a restraining order (Pen. Code, § 166, subd. (a)(1)). As a result, defendant was sentenced to a total term of 15 years eight months in state prison and was ordered to pay various restitution fines and fees. (People v. Arriaga (Oct. 25, 2011, E051724) [nonpub. opn.].)
In his first appeal, defendant claimed, and the People conceded, that the abstract of judgment contained several errors. We agreed and directed the superior court clerk to amend the abstract of judgment and forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirmed the judgment.
In June 2012, defendant filed a postjudgment motion in the trial court to strike or modify his restitution fines and fees based on his inability to pay. Defendant appeals from the denial of that motion. We find no error and affirm.

J.S. (father) and J.C. (mother) appeal from an order of the juvenile court terminating their parental rights to B.S. (B.) and D.S. (D.) Father contends the juvenile court erred by failing to make a finding of parental unfitness by clear and convincing evidence before terminating his parental rights. Mother contends the juvenile court erred when it found the parental bond exception to adoption did not apply. We find no error, and we affirm.

A jury convicted defendant, Mark Anthony Miller, of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and the misdemeanor of possessing paraphernalia for the consumption of a controlled substance (Health & Saf. Code, § 11364). In bifurcated proceedings, the trial court found true allegations that defendant had suffered three strike priors. However, the trial court subsequently dismissed two of those findings. Defendant was sentenced to prison for four years and appeals asking this court to review an in camera proceeding concerning the disclosure of the identity of a confidential informant. He also asserts that the trial court erred in excluding a statement he made. Finally, he contends that he is entitled, under equal protection principles, to presentence custody credits by the retroactive application of a version of Penal Code section 4019 not in effect at the time he committed his crimes, or at the time he served that presentence custody or at the time he was sentenced. We review the in camera proceedings and conclude that the trial court did not err in refusing to disclose the identity of the confidential information. We reject defendant’s two remaining contentions and affirm, while directing the trial court to make some clarifying additions to the abstract of judgment and a minute order.

Defendant and appellant Tommy Merrick Hosey challenges the trial court’s award of presentence custody credits. We agree that he is entitled to additional credits, but not the amount he claims. We therefore affirm with instructions that the trial court amend the abstract of judgment to reflect the correct amount of credits.

Defendant Israel Hermosillo appeals from his conviction of commercial robbery (Pen. Code, § 211, counts 1 & 5),[1] attempted commercial robbery (§§ 661, 211, count 3), and assault with a semiautomatic firearm (§ 245, subd. (b), counts 2, 4, & 6) with associated enhancements. Defendant contends the trial court erred in denying his motion under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) to exclude incriminating extrajudicial statements made while in custody and in response to interrogation. We find no error, and we affirm.

Defendants and appellants, Brian Charles Ostler, Sr. (Ostler) and Law Offices of Brian C. Ostler, Sr. (the law offices), appeal from the trial court’s denial of their special motion to strike (anti-SLAPP[2] motion). (Code Civ. Proc., § 425.16.)[3] Defendants contend (1) the complaint of plaintiff and respondent, W.E. Jon Albrecht, for malicious prosecution arose from defendants’ protected petitioning activity; (2) plaintiff’s complaint failed to state a cause of action for malicious prosecution against defendants; and (3) plaintiff failed to substantiate his cause of action with sufficient admissible evidence. We conclude the trial court erred in denying the motion because plaintiff has failed to show a probability of success on the merits as to the element of malice. Plaintiff contends, however, the trial court properly denied the anti-SLAPP motion and further contends the trial court abused its discretion in permitting the motion to be filed late and conducting the hearing on the motion more than 30 days after it was filed. We disagree, and we reverse the trial court’s order denying the motion.

Defendant Lucero Diego appeals from the sentences she received after a jury convicted her of murder (Pen. Code, § 187, subd. (a))[1] and other charges that resulted from her actions in shaking and suffocating her two-month-old son, Romeo. Specifically, defendant argues: 1) this court should reverse her upper-term sentence for child abuse likely to produce great bodily injury (§ 273a, subd. (a)) because the trial court failed to state its reasons for imposing the aggravated term; and 2) this court should reverse her 25-years-to-life term for child abuse resulting in death (§ 273ab) as constituting cruel and unusual punishment because the conviction is based on second-degree murder rather than first-degree murder. As discussed below, we hold that defendant’s first argument was waived and reject the second argument. We also order the abstract of judgment amended to reflect that the trial court ordered the determinate term to be served concurrent with, rather than consecutive to, the indeterminate term.

Appellant E.P., the mother of minors E.M. and A.M., appeals from the orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 395, 366.26; undesignated references are to the Welfare and Institutions Code.) She contends the juvenile court should have applied the beneficial parent/child relationship exception to terminating parental rights. We affirm.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Shortly before midnight on May 25, 2011, while on patrol in a marked vehicle, Sacramento Police Officer Stephen Moore ran the license plate number on a car. A return from the Department of Motor Vehicles (DMV) on the patrol car’s computer screen reflected that the vehicle registration had been suspended effective March 21, 2011. Officer Jennifer Ligon Nichols who was driving the patrol vehicle activated the emergency lights. Defendant Andres Perez, the driver of the car, made a U-turn, looked at the officers, and then sped off. Officer Ligon Nichols activated the siren, turned, and followed defendant who led the officers on a chase during which defendant exceeded the speed limit, ran two stop signs and a red light, and turned off his headlights. He finally stopped the car and fled on foot, jumping over two fences to his home where he was arrested between 20 and 45 minutes later.
Defendant had been previously convicted of driving on a suspended license on June 25, 2006, September 13, 2006, and February 1, 2010.
After his suppression motion was denied, defendant entered a negotiated plea of no contest to felony evading (Veh. Code, § 2800.2, subd. (a); count 1) and driving on a suspended license, a misdemeanor (Veh. Code, § 14601.2, subd. (a); count 2) with three priors (Veh. Code, §§ 14601.1, subd. (a), 14601.2, subd. (a)) in exchange for the midterm of two years for count 1 and a concurrent 180-day term for count 2 and dismissal of a prior prison term allegation. The court sentenced defendant to time served (366 actual days plus 366 conduct days for a total of 732 days of presentence custody credit) and released him on parole. (Pen. Code, § 1170, subd. (a)(3).)
Defendant appeals.

Following a contested jurisdiction hearing, the juvenile court found that the minor O. A. committed robbery and two counts of attempted robbery. At the disposition hearing, the juvenile court adjudged the minor a ward of the court, set a maximum term of confinement of six years four months, and placed the minor on probation with 120 days in juvenile hall. Among the probation conditions was that the minor pay a $100 general fund fine.
On appeal, the minor contends there was insufficient evidence of the minor’s ability to pay the general fund fine and its attendant penalty assessment. We affirm.