CA Unpub Decisions

Defendant Brian James Mattson timely appeals from a judgment entered on his plea. He contends the trial court erred when it imposed (1) a probation report fee of $176 pursuant to Penal Code section 1203.1b and (2) a criminal justice administration fee of $340 (CJA fee) pursuant to Government Code sections 29550 et seq. At sentencing, defendant objected to imposition of both fees on the grounds that he did not have the ability to pay them. Nevertheless, the Attorney General argues defendant has forfeited his claims, but concedes that if the claims are not forfeited, the probation report fee was improperly imposed. As to the CJA fee, the Attorney General argues the fee is mandatory and requires no finding of ability to pay.
We find no forfeiture and accept the Attorney General’s concession as to the probation report fee. Therefore, we will remand the matter to the trial court for a determination of defendant’s ability to pay. With respect to the CJA fee, we decline to decide whether the fee is mandatory or discretionary, since the court neglected to identify the statutory authorization for the fee. However, since we are remanding the matter for an ability to pay determination, we will also direct the court to identify the statutory basis for the CJA fee and take into account defendant’s ability to pay, if appropriate, under the identified statute. We otherwise affirm.

Defendant Melinda Mackli Williams appeals from a judgment entered after she pleaded no contest to two counts of commercial burglary and two counts of forgery with an understanding that the court would impose a prison sentence but suspend its execution while she was on probation. On her prior appeal, we upheld the convictions but vacated the sentence and remanded for resentencing. (People v. Williams (Apr. 29, 2011, A128781) [nonpub. opn.] (Williams I), at p. 9.)[1] At the resentencing on June 3, 2011, the court did not orally pronounce sentence, aside from setting the aggregate term of imprisonment and asking the clerk to clarify Williams’s custody credits. Nevertheless, the court’s minute order and the abstract of judgment includes the following monetary penalties: a $3,200 restitution fine, a $3,200 parole restitution fine, a $30 criminal conviction assessment, a $30 court security fee, and a $250 probation investigation fee.
On this appeal we agree with Williams that the court’s minute order and the abstract of judgment must be corrected by striking the restitution fine, the parole restitution fee, the criminal conviction assessment, and the probation investigation fee, and on remand we will direct the trial court to make the necessary corrections. We also conclude the judgment should be modified by vacating the $30 court security fee and imposing a $20 court security fee for each of Williams’ four convictions for a total of $80. In all other respects, the judgment is affirmed.

Plaintiff and appellant Pedro Eva (Eva) appeals from the trial court’s order dismissing two causes of action pursuant to a special motion to strike filed by defendants and respondents (respondents)[1] under the anti-SLAPP[2] statute (Code Civ. Proc., § 425.16).[3] Eva contends the trial court erred in concluding that he failed to show a probability of prevailing on his third cause of action for “Intentional Tort.” We affirm.

Plaintiffs and appellants Eseta Heimuli and her spouse Mike Heimuli appeal a judgment in favor of defendant and respondent physicians James Lilja and Helen Matthews, after the court sustained defendants’ demurrer to plaintiffs’ third amended complaint for medical malpractice and loss of consortium based on the statute of limitations (Code Civ. Proc., § 340.5).[1] Plaintiffs contend that the court erred in sustaining the demurrer without leave to amend where they alleged they did not suspect that someone had done something wrong until they consulted with their attorney after the surgery on which the malpractice claim was based. We shall affirm.

Amendments to Penal Code section 4019, effective April 4, 2011, and operative October 1, 2011 (hereafter, April 2011 amendments),[1] increased the amount of conduct credits certain felons could earn for the time they spent in presentence custody, but only after the operative date. Appellant Juan Gustavo Robles-Alejo argues that equal protection principles require retroactive application as well.
While this appeal was pending, our Supreme Court decided People v. Brown (June 18, 2012, S181963) ___ Cal.4th ___ [12 C.D.O.S. 6697 ] (Brown). Brown holds that prospective-only application of 2009 amendments to section 4019 did not violate equal protection. We find Brown dispositive of Robles-Alejo’s equal protection challenge here.[2]

We last reviewed this dependency case when Deanna J., the mother of David B., petitioned for an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate an order terminating reunification services and setting a hearing to select a permanent plan under Welfare and Institutions Code section 366.26.[1] In an unpublished opinion (Deanna J. v. Superior Court (March 10, 2011, A130538)), we rejected mother’s claims that substantial evidence did not support findings of (1) a substantial risk of detriment were David returned to her, or (2) that reasonable reunification services had been provided by real party in interest Alameda County Social Services Agency (the agency). Here, Deanna J. appeals the juvenile court’s orders denying her section 388 petition and terminating her parental rights. We affirm.

Appellant E.P. was adjudged a ward of the court after entering a plea of no contest to a charge that he was a minor in possession of a handgun. On appeal, he contends the juvenile court erred in denying his motion to suppress, failed to follow statutorily mandated procedures for determining his suitability for deferred entry of judgment, imposed gang-related conditions of probation that are unconstitutionally overbroad and vague, and failed to calculate his maximum term of confinement and award predisposition custody credit. We conclude the motion to suppress was properly denied but agree with appellant that the matter must be remanded for the juvenile court to conduct a hearing to consider appellant’s suitability for deferred entry of judgment.

Defendant, Edward Benoit, appeals from an order granting probation following a no contest plea to possession of concentrated cannabis. (Health & Saf. Code, § 11357, subd. (a).) Benoit argues that a condition of his probation requiring him to stay away from places where alcohol is the primary item of sale is unconstitutionally vague because there is no explicit requirement that he can only be punished for knowingly violating this condition. Accordingly, we modify the order to require Benoit to stay away from locations where he knows alcohol is the primary item of sale and, as modified, affirm the judgment.

Pro per appellant Piruz Vargha sued respondents the Regents of the University of California (the Regents) and four individuals after he was terminated during a probationary period at the University of California, San Francisco (UCSF). He alleged that respondents retaliated against him for reporting safety concerns. The trial court granted respondents’ motion for summary judgment. Appellant argues that the trial court erred when it granted the motion, as well as when it denied his peremptory challenge of the trial judge pursuant to Code of Civil Procedure section 170.6. We affirm.

This is an appeal from judgment following the dismissal with prejudice of plaintiff Sofiya Sterkina’s third amended complaint against defendant The Regents of the University of California (Regents). Sterkina’s third amended complaint purported to set forth a professional negligence claim for injuries she received at the hands of three dentists who performed dental work on her on behalf of the University of California at San Francisco (UCSF) Hospital Dentistry/General Practice Residency.[1] The trial court sustained defendant’s demurrer to the third amended complaint without leave to amend after concluding Sterkina’s claims were time-barred. We affirm.

Defendant Dominick J. Godino (defendant) appeals the judgment and sentence imposed after a jury convicted him of committing lewd or lascivious acts upon the body of a child under the age of 14 with the intent of arousing the lust, passions or sexual desire of himself or the child, in violation of Penal Code, section 288, subdivision (a).[1] We shall affirm the judgment.

Defendant Patrick Grant appeals his convictions for second degree robbery and possession of a firearm by a felon. Defendant contends: (1) the trial court abused its discretion by failing to question the jurors about whether they could set aside the fact that one of the robbery victims was an off-duty police officer in assessing his credibility; (2) the prosecutor committed prejudicial misconduct by repeatedly emphasizing that the victim was a police officer and inappropriately vouching for his credibility; and (3) counsel rendered ineffective assistance by failing to object to the references to the victim’s status as a police officer, eliciting testimony that defendant was on parole, and acknowledging that “maybe” defendant committed the robberies. We shall affirm.

Appellant Genesys Telecommunications Laboratories, Inc. (Genesys) appeals from an order denying its motion to compel arbitration. Genesys, which is the sole defendant in the action below, contends that trade secret theft and defamation claims alleged by plaintiffs fall within the scope of a broadly worded arbitration clause contained in a strategic partnership agreement signed by some of the plaintiffs. Genesys also contends that the nonsignatory plaintiffs—business entities related to or affiliated with the signatory plaintiffs—are equitably estopped from opposing arbitration. In denying the motion to compel arbitration, the trial court based its decision on the threshold question of the arbitrability of the claims and did not reach the issue of whether the nonsignatory plaintiffs should be compelled to arbitrate.
We conclude the trial court erred. Accordingly, we reverse and remand for further proceedings to consider whether equitable principles justify compelling the nonsignatory plaintiffs to arbitrate their dispute with Genesys.

In this tragic case, an alcohol-fueled brawl ended in the death of one young man and the imprisonment of another. Defendant Andrew Hoeft-Edenfield and a friend were followed by a group of young men gathered outside a university fraternity house as they walked home from a party early one morning. An angry confrontation ensued. As the confrontation escalated, defendant began waving a pocketknife at the gathering crowd. In an apparent attempt to control defendant, one of the group grabbed him from behind and was fatally stabbed. Defendant was convicted of second degree murder. He raises several grounds for reversal of his conviction, but we find no merit in them and affirm.