CA Unpub Decisions

J.G. (mother) and Bobby T. (father) separately appeal from the jurisdictional findings and consequent dispositional orders that removed their children, eight-year-old Alena G., six-year-old Zachary T., and two-year-old Bobby B.T. (collectively the children), from their legal and physical custody.[1] We have ordered the appeals be consolidated. In father’s appeal, he contends the juvenile court erred in finding jurisdiction over the children pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j),[2] and in removing the children from his custody. He also joins in mother’s arguments. In mother’s appeal, she challenges the removal order. As we shall explain, we disagree with their arguments and affirm the juvenile court’s findings and orders.

Appellant, Andrew Vassiliou, challenges the judgment dismissing his personal injury action against respondent, State Farm General Insurance Company (State Farm), entered after the trial court sustained State Farm’s demurrer to the third amended complaint without leave to amend. The court ruled that the complaint failed to state facts sufficient to constitute a cause of action against State Farm and was uncertain. State Farm was not named as a defendant in the complaint and no facts or theories of liability were alleged against State Farm.
Appellant asserts that, under the Insurance Code and “basic premises liability,” State Farm is liable. However, appellant has neither supported his contention by argument and citation to relevant authority nor met his burden to show reversible error. Moreover, the complaint is insufficient as a matter of law. Therefore, the judgment will be affirmed.

Appellant/defendant Bobby Dial Shoals, Jr., was convicted of multiple felony offenses based on the sexual assault of his former girlfriend. He was sentenced to 13 years plus 120 years to life, based on both the one strike law (Pen. Code,[1] § 667.61) and a second strike (§ 667, subds. (b)-(i)).
On appeal, defendant contends the court should have given the unanimity instruction to the jury, and it was improperly instructed as to whether the testimony of a single witness could support the sexual assault charges. He also contends that part of his sentence should have been stayed pursuant to section 654. We will correct defendant’s sentence and otherwise affirm.

Appellant, Andrew Vassiliou, challenges the judgment dismissing his personal injury action against respondents, General Electric Company (GE), Union Carbide Corporation (Union Carbide) and Kaiser Gypsum Company, Inc. (Kaiser Gypsum), entered after the trial court sustained respondents’ demurrers to the third amended complaint without leave to amend. The court ruled that appellant had not stated a cause of action for injury resulting from exposure to toxic materials because he had not alleged that he was exposed to a particular product manufactured by any of these respondents.
Appellant asserts that the information stated in the complaint is “not vague it is factual” and that the “defendants lied and tricked [the] judge.” However, appellant has neither supported his contentions by argument or citation of authority nor met his burden to show reversible error. Moreover, the complaint is insufficient as a matter of law. Therefore, the judgment will be affirmed.

S.W. (the father) appeals from an order terminating parental rights to his infant children, S.W. (S.W. or the child) and B.G. His sole appellate contention is that proper notice was not given as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related federal and state law. We will hold that the trial court could reasonably find that the notice that was given was proper. Accordingly, we will affirm.

Defendant Thomas Allen Schaeffer seeks remand for calculation and award of conduct credits under Penal Code section 2933.[1] The People agree that defendant should receive conduct credits, but argue that section 4019, not 2933, is the provision under which they should be calculated.
We will find that, because of his validly-executed waiver, defendant is not entitled to any section 4019 credits and whatever section 2933 credits are due him must be calculated by the secretary of the California Department of Corrections and Rehabilitations (CDCR) from the date the relevant subdivision became effective until the date defendant was sentenced to prison.

The judgment arises from a decision by Commissioner Gassner on July 30, 2010, denying Ms. Camarata’s request for an order establishing parentage by estoppel. The judgment was filed on September 29, 2010.
By order dated January 21, 2011, this court found that the order and judgment were appealable final judgments. The order denying a restraining order is separately appealable under Code of Civil Procedure section 904.1, subdivision (b)(6). The judgment denying the request to establish parentage by estoppel is the result of a separate procedure for the determination of parentage. (Fam. Code, §§ 7630-7650.)[1] It is a final determination on the issue and is directly appealable.

At a change of plea hearing on January 5, 2012, Jason Sullivan ─ after consulting with his defense counsel, entering into a plea agreement, and initialing and signing a "Plea of Guilty/No Contest─Felony" form ─ waived his constitutional rights, pleaded guilty to two counts of residential burglary (Pen. Code,[1] §§ 459, 460) as charged in counts 1 (victim: Scott Palmer) and 3 (victims: Orlando and Linda Foote), respectively, of the amended information; and, as to count 1, admitted an allegation that he had suffered a prior residential burglary conviction that constituted a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12). In exchange for his guilty plea, the parties stipulated that Sullivan would be sentenced to a prison term of nine years four months, and the People would dismiss the balance of the charges and allegations set forth in the accusatory pleading.

A jury convicted Wendell Maurice Brown of (1) inflicting a corporal injury upon Mims Jenkins, a cohabitant, resulting in a traumatic condition (count 1: Pen. Code, § 273.5, subd. (a)) (undesignated statutory references will be to the Penal Code unless otherwise specified); and (2) assault upon Jenkins by means of force likely to produce great bodily injury (count 2: § 245, subd. (a)(1)). The jury found Brown not guilty of battery on Jenkins, a cohabitant (count 3: § 243, subd. (e)(1)). In a bifurcated proceeding, the court found true allegations that Brown had sustained a prior serious felony conviction (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)) and two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12 & 668).
At the sentencing hearing, the court struck one of the two prior strikes in the interest of justice, struck the prior serious felony conviction allegation, and sentenced Brown for his count 1 conviction to an aggregate prison term of eight years, consisting of a four-year term doubled to eight years under the Three Strikes law as a result of his prior strike. For his count 2 conviction, the court imposed, but stayed under section 654, a four-year term doubled to eight years under the Three Strikes law as a result of his prior strike.
Brown appeals, contending (1) the court abused its discretion and violated his federal constitutional right to due process by admitting under Evidence Code section 1109 propensity evidence that he strangled his wife to death in 1990; (2) despite the California Supreme Court's decision in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the court's admission of the propensity evidence under Evidence Code section 1109 deprived him of his federal constitutional due process and equal protection rights; and (3) there is insufficient evidence to support his count 2 conviction of assault by means of force likely to produce great bodily injury because the force he used on Jenkins was not likely to cause such injury. We reject these contentions and affirm the judgment.

Plaintiff and appellant Chung Kao, an incarcerated person representing himself in propria persona (Appellant), appeals an order of dismissal of his petition for writ of mandamus against the California Department of Corrections and Rehabilitation (the Department). The petition challenged the manner in which the Department's personnel processed his inmate administrative grievances, in particular, one dated May 23, 2010, complaining of several instances of "staff misconduct" by various Department personnel, in connection with his inmate appeals. (Cal. Code Regs., tit. 15, § 3084 et seq.)[1] In response to that appeal, the Department's appeals coordinator sent him an explanation that he could submit only one issue per appeal, and must separate his issues and submit them on different Department appeal forms.
In this appeal, Appellant contends his petition was meritorious and the trial court should be ordered to grant it, because the Department (1) unlawfully discarded his appeals, in violation of regulatory protections, and/or (2) violated his equal protection rights under Penal Code[2] section 832.5, providing for law enforcement agencies' investigation and retention of misconduct complaints against its officers (with some exceptions).

This criminal prosecution arose out of an August 2009 shooting from a car allegedly driven by appellant and petitioner Saynab Abdullahi Jama in the parking lot of a Denny's restaurant in the City of San Diego. An amended information (the information) charged both Jama and her codefendant Abdikidir Abdillahi Guled, the alleged shooter, with one count of attempted murder in violation of Penal Code sections 187, subdivision (a), and 664 (count 1) (undesignated statutory references will be to the Penal Code unless otherwise specified); discharge of a firearm from a motor vehicle (count 2: § 12034, subd. (c)); and assault with a firearm (count 3: § 245, subd. (a)(2)).[1] As to count 1, the information charged that the attempted murder was willful, deliberate, and premeditated within the meaning of section 189.
As to counts 1 and 2, the information also alleged that Guled personally and intentionally discharged a firearm (a handgun), proximately causing great bodily injury to a person other than an accomplice, within the meaning of section 12022.53, subdivision (d) (hereafter section 12022.53(d)); and that Jama, although not personally armed with a handgun, was vicariously liable as a principal within the meaning of section 12022, subdivision (a)(1) (hereafter section 12022(a)(1)).
The information also charged Guled, but not Jama, with assault by means of force likely to cause great bodily injury (count 4: § 245, subd. (a)(1)), and with felony vandalism (count 5: § 594, subd. (a), (b)(1)). As to all five counts, the information further alleged that Guled was out on bail at the time he committed the charged offenses within the meaning of section 12022.1, subdivision (b) (hereafter section 12022.1(b)).
Before trial, the court denied Jama's motions to sever her case from Guled's case and for dual juries. However, the court granted Jama's in limine motion to sever counts 4 and 5, which were only alleged against Guled. The court also granted the People's motion to bifurcate the allegations in counts 1 through 5 that Guled was out on bail at the time he committed the charged offenses within the meaning of section 12022.1(b).
The jury found Jama guilty of counts 1 through 3 and found true the count 1 allegation that the attempted murder was willful, deliberate, and premeditated.[2] The jury also found true the allegations in counts 1 and 2 that Jama was vicariously liable as a principal (§ 12022(a)(1)).

In this case the developer of a condominium project recorded a declaration of covenants, conditions and restrictions (CC&R's), which required that a homeowners association arbitrate any construction defect claim the association might have against the developer. 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. 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.

A jury found Anthony Salas Aguon to be a sexually violent predator (SVP). He was recommitted to an indeterminate civil commitment term under the Sexually Violent Predator Act (SVPA or the Act). (Welf. & Inst. Code, §§ 6600-6604.)[1]
This case is before us for the third time. In the first appeal, we affirmed the judgment; however, Aguon appealed and the California Supreme Court directed us to vacate our decision and reconsider the cause in light of its decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee I). In the second appeal, as required by McKee I, we reversed the judgment (order of civil Commitment) and remanded the case for proceedings solely on the issue of equal protection, but otherwise affirmed the judgment. This court subsequently decided People v. McKee (2012) 207 Cal.App.4th 1325, 1347, review denied Oct. 10, 2012 (McKee II). On this third appeal, the parties submitted supplemental briefing regarding the effect of McKee I and McKee II on Aguon's equal protection claim. We affirm the judgment.
Aguon contends insufficient recent and objective evidence supports the jury's findings. He further contends the trial court erroneously: (1) instructed the jury to determine whether it was necessary to keep him in a secure facility to ensure the health and safety of others, which improperly directed the jury to consider the consequences of its verdict and thereby diminished the prosecutor's burden of proof and denied him due process; (2) instructed regarding his likelihood of reoffense; (3) admitted evidence regarding his prior 1972 uncharged rape; (4) failed to instruct the jury, without request, that it was required to find he had serious difficulty in controlling his sexual behavior. Moreover, (5) the prosecutor's "use of the term 'sexually violent predator' was governmental misconduct;" (6) the evaluations supporting the petition to recommit him are invalid because the statutorily required protocol was an "underground regulation," which was promulgated in violation of the Administrative Procedure Act (APA); therefore, the trial court lacked jurisdiction to proceed with the SVP petition; (7) the SVPA violates the due process, ex post facto, double jeopardy and equal protection clauses of the federal or state Constitutions; and (8) his trial counsel rendered ineffective assistance of counsel.

Defendant Alexander Bo Sanchez entered a plea of no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); undesignated section references that follow are to this code) in case No. 12F466, receiving stolen property (§ 496, subd. (a)) in case No. 12F131, and second degree burglary (§ 459) in case No. 11F6248 and admitted that he committed the offense in case No. 12F466 while released from jail on his own recognizance (§ 12022.1). Defendant entered his plea in exchange for a sentencing lid of five years four months in state prison and the dismissal of the remaining counts and allegations.
The court sentenced defendant to state prison for five years four months.