CA Unpub Decisions

Mayra D. appeals the judgment terminating her parental rights to her sons, H.G. and B.G (together, the boys), and her daughter, A.G. (we refer to the boys and A.G. collectively as the children). Mayra contends the juvenile erred by declining to apply the beneficial relationship exception. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i); all further statutory references are to this Code.) We affirm.

J.A. and L.M. appeal orders entered at a permanency plan and selection hearing held under Welfare and Institutions Code section 366.26.[1] J.A. contends the court erred when it found that the beneficial parent/child relationship exception did not apply and terminated parental rights. He also appeals an order denying a hearing on his request to place Angelina in the care of her paternal grandmother. L.M. asks this court to exercise its discretion to review the record for error pursuant to In re Sade C. (1996) 13 Cal.4th 952 (Sade C.) and Penson v. Ohio (1988) 488 U.S. 75, 88 (Penson). Upon review of the issues raised in J.A.'s appeal, we affirm the orders. We dismiss L.M.'s appeal.

Bonnie T. appeals a judgment declaring her minor children, Michael T. and Makayla T., dependents of the juvenile court and removing them from her custody. Bonnie challenges the sufficiency of the evidence to support the court's dispositional order as to Makayla. She also contends the court abused its discretion by requiring her to participate in a substance abuse treatment program as part of her reunification plan. We affirm the judgment.

This is the dependency case of child R.P., who is now five years old. In May 2012, the juvenile court denied the Welfare and Institutions Code section 388[1] modification petition of his maternal aunt, Gabriella S., and terminated the parental rights of R.P.'s mother and father, N.T. and Robert P. (together, the parents). The parents and Gabriella appeal. N.T., joined by Robert,[2] contends the court erred by declining to apply the beneficial relationship exception to termination of her parental rights (§ 366.26, subd. (c)(1)(B)(i)). Gabriella contends the court abused its discretion in denying her section 388 petition. We affirm.

Appellant, A.B. (Minor), was accused in a petition filed in the juvenile court of assault with force likely to produce great bodily injury (Pen. Code,[1] § 245, subd. (a)(4)) and battery with serious bodily injury (§ 243, subd. (d)). It was further alleged that the Minor personally inflicted great bodily injury on the victim (§ 12022.7).
Following a contested hearing, the court found all counts and allegations to be true. The Minor was later declared a ward of the juvenile court and placed in the home of her mother.
The Minor appeals contending the case must be remanded because the trial court failed to exercise its discretion to declare the offenses to be felonies or misdemeanors. We find the record does not support the Minor's contention and affirm.
The Minor does not challenge the admissibility or the sufficiency of the evidence to support the true findings on the petition. Accordingly, we will omit any discussion of the facts of the underlying offenses.

In June 2004, Deno Eugene Woodis was found to be a mentally disordered offender (MDO). He was committed to a state hospital (Pen. Code, § 2962). Each year thereafter, through 2011, Woodis was again committed as an MDO (Pen. Code, §§ 2970 & 2972).
In January 2012, the District Attorney again petitioned the court to commit Woodis as an MDO. Following a court trial, Woodis was committed as an MDO for an additional year.
Prior to trial, Woodis brought a motion to replace counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The motion was heard and denied by the trial court.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable issues.[1] We offered Woodis the opportunity to file his own brief on appeal but he has not responded.

In 1978, a jury convicted William Landry of unlawful sexual intercourse with a person under the age of 18 (Pen. Code,[1] § 261.5; count 1), and unlawful oral copulation with a person under the age of 18 (§ 288a, subd. (b)(1); count 2). As a result, Landry was required to register as a sex offender pursuant to the California Sex Offender Registration Act. (§ 290.) In 2011, the Superior Court granted Landry relief from mandatory registration under People v. Hofsheier (2006) 37 Cal.4th 1185 (Hofsheier), but ordered discretionary registration pursuant to section 290.006.

Christopher David Iverson appeals a judgment sentencing him to prison after a jury found him guilty of vehicle taking (Veh. Code, § 10851, subd. (a)), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)), and other crimes. Iverson contends the judgment must be reversed because the trial court erroneously excluded as hearsay his statement to friends that he had purchased the vehicle for $300. He also claims entitlement to 12 additional days of presentence conduct credits under the most recent amendments to Penal Code section 4019. We reject these contentions and affirm the judgment.
I.

A jury convicted Rigoberto Ramirez of violating former Penal Code[1] section 12020, subdivision (a)(4), which prohibits the carrying of a concealed dirk or dagger, a felony (count 2). He was also found guilty of possession of burglary tools, a misdemeanor (§ 466, count 3). He was acquitted of residential burglary (§ 459, count 1). The court found true allegations that he had a prior strike conviction (§ 667, subds. (b)-(i)), and had served a prior prison term (§ 667.5, subd. (b)).
The trial court sentenced Ramirez to five years in state prison, composed of a two-year midterm for the concealed dagger count, doubled by the strike, and a one-year prior prison term enhancement. A prison term for the misdemeanor burglary tools count was imposed to run concurrently, apparently as a doubled felony term (two years).
On appeal, Ramirez asserts his conviction of carrying a concealed dirk or dagger should be reversed because (1) it is not supported by sufficient evidence of any intentional concealment; and (2) that statute violates the United States Constitution, Second Amendment constitutional right to bear arms for self-defense.
As to sentencing, Ramirez contends, and the People concede, the court's concurrent sentence on the possession of burglary tools count (for one or two years), was erroneous for a misdemeanor and must be corrected, because only a maximum six-month concurrent county jail sentence was authorized by sections 19 and 466. Additionally, Ramirez argues he was entitled to 119 additional days of presentence conduct custody credit, due to a recent amendment to section 4019 that should arguably be applied under equal protection principles. (U.S. Const., 14th Amend.; but see People v. Brown (2012) 54 Cal.4th 314, 328-330 [ruling otherwise on the same equal protection argument; Ramirez pursues this argument solely to exhaust his state remedies].)
Our review of the record leads us to conclude that Ramirez is correct in his main assertion, that insufficient evidence supports the jury conviction for carrying a concealed knife, and double jeopardy protections prevent any retrial of that charge. (Burks v. United States (1978) 437 U.S. 1, 11; People v. Hatch (2000) 22 Cal.4th 260, 271-272.) We reverse that conviction on count 2, and modify the judgment on count 3 (burglary tools possession) by reducing it to a concurrent six-month county jail sentence as authorized by sections 19 and 466. We remand the matter to determine any remaining sentencing issues. We need not address Ramirez's constitutional claims under the Second Amendment nor his presentence custody credit arguments. (But see People v. Mitchell (2012) 209 Cal.App.4th 1364 (Mitchell) [rejecting such 2d Amend. arguments].)

The People charged Jose Figueroa with 22 counts of sexual misconduct involving two children, B.M. and R.R. At the conclusion of evidence at trial, the court granted the People's motion to dismiss six of the original 22 counts (counts 6 & 8 involving B.M.; counts 16, 18, 20 & 22 involving R.R.).
The jury subsequently convicted Figueroa of six counts of sexual misconduct involving B.M. including count 1, sodomy with a child 10 years old or younger (Pen. Code,[1] § 288.7, subd. (a)); counts 4 and 5, oral copulation with a child 10 years old or younger (§ 288.7, subd. (b)); counts 7 and 9, lewd act upon a child (§ 288, subd. (a)); and count 12, forcible lewd act upon a child (§ 288, subd. (b)(1)). As to counts 7, 9 and 12, the jury also found true the allegations that Figueroa had engaged in substantial sexual contact with B.M. (§ 1203.66, subd. (a)(8).)

Plaintiff Helf Investments (Helf) appeals a judgment in favor of defendants Pacifica Companies, LLC, and related entities (collectively Pacifica), in a breach of contract action. After a bench trial, the court determined Pacifica breached its contract with Helf in which Pacifica had agreed, as partial consideration for its purchase from Helf of a 200-unit apartment complex, to pay to Helf as additional deferred consideration 50 percent of any revenues received by Pacifica from sales of units created on conversion of the apartments to condominiums, to the extent those sales exceeded a stated threshold amount and were realized within a specified period of time (the deferred consideration period). Pacifica successfully sold 191 of 200 units in the converted condominium complex during the deferred consideration period, and Helf received more than $1.2 million in additional payments pursuant to the contract. After October 1, 2008, however, Pacifica did not have a sales agent actively marketing the units. Moreover, throughout the deferred consideration period, it had purposefully withheld one unit from sale so it could lease that unit and thereby maintain a presence on the homeowner's association board of directors. The remaining nine units did not sell until after the deferred consideration period expired.

In this case a condominium developer seeks to compel arbitration of construction defect claims brought against it by a homeowners association on behalf of the association itself and its members. The developer relies on arbitration provisions in a declaration of covenants, conditions and restrictions (CC&R's) the developer recorded prior to establishment of the association and on separate purchase agreements which also contained arbitration provisions.
In Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223 (Pinnacle) the California Supreme Court held that such arbitration clauses are enforceable against a homeowners' association notwithstanding the fact the association did not come into existence until after CC&Rs were recorded and the association's consent to arbitrate was not express but occurred by operation of law. (Id. at p. 246.) The Supreme Court further held that the arbitration clause was not unconscionable. (Id. at p. 250.)
In light of Pinnacle the arbitration clause in this case was valid and enforceable against the homeowner's association as well as individual homeowners. Accordingly the trial court erred in denying the developer's motion to compel arbitration of the homeowners association's construction defect claims. We reverse the trial court's order and remand for further proceedings.

Anthony Judge appeals a judgment committing him for an indeterminate term to the custody of the State of California Department of Mental Health (Department) under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq. (the SVPA)).[1] He contends the judgment must be reversed because his indeterminate commitment under the SVPA violates his constitutional rights to due process and equal protection. Judge also asserts the court prejudicially erred when it refused to give the jury an amplifying instruction regarding the standard for finding a likelihood of committing future predatory acts under the SVPA.

After defendant sexually assaulted a young family member, a jury found him guilty of penetration with a foreign object on a minor under 14 (Pen. Code,[1] § 289, subd. (j)), and lewd act on a minor (§ 288, subd. (a)). Sentenced to six years in prison, defendant appeals. He contends (1) there was insufficient evidence of penetration; (2) the penetration was by a penis, not an unknown or foreign object as required by section 289; and (3) the trial court erred by failing to instruct the jury that penetration with a foreign object is a specific intent crime. We find no prejudicial error and shall affirm.