CA Unpub Decisions

T.R., a dependent of the juvenile court, contends the juvenile court erred when it denied her petition to place younger sister, T.R.R., who is also a dependent of the juvenile court, in their aunt's home for the purpose of adopting the siblings together. (Welf. & Inst. Code, § 388, subd. (b).)[1] T.R. also contends the juvenile court erred when it found that the sibling relationship exception did not apply and terminated parental rights. (§ 366.26, subd. (c)(1)(B)(v).) We affirm the orders.

A jury found Matthew Albert Rivera guilty of burglary (Pen. Code, § 459;[1] count 1) and petty theft (§ 484; count 2). Rivera admitted three prior prison terms (§ 667.5, subd. (b)), one strike (§ 667, subds. (b)-(i)) and, as to count 2, prior theft convictions (§ 666). The court stayed one of the prison priors[2] and sentenced Rivera to four years eight months in prison: two years eight months (twice the lower term) on count 1; a stayed term (§ 654) on count 2; and one year for each of the two remaining prison priors. The court imposed fines and fees, including a $154 criminal justice administration fee (also called a booking fee) (Gov. Code, § 29550.1) and a $38 theft fine including a penalty assessment (§ 1202.5). Rivera appeals, contending imposition of the booking fee denied him equal protection because Government Code section 29550.1, unlike Government Code section 29550, does not require a finding of ability to pay. He also contends there was insufficient evidence of his ability to pay the theft fine. We affirm.

Mark Robison entered a negotiated guilty plea to causing a victim younger than 16 years old to become a prostitute (Pen. Code, §§ 266i, subd. (a)(2), 266h, subd. (b)(2);[1] count 1; Victim S.); electronically sending a minor harmful matter (§ 288.2, subd. (b); count 2); and two counts of committing a lewd act on a 14- or 15-year-old child (§ 288, subd. (c)(1); counts 7 and 9; Victim A.). The court sentenced Robison to nine years four months in prison: the eight-year upper term on count 1, eight months each (one-third the middle term) on counts 7 and 9 and a stayed term (§ 654) on count 2. Robison appeals, contending that in imposing the upper term on count 1, the court relied on facts relating to counts 7 and 9, and thus abused its discretion. We affirm.

APPEAL from an order of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed.
Leo Leroy Linkogle was civilly committed as a sexually violent predator (SVP) to an indeterminate term following a bench trial. On appeal he asserts there is not sufficient evidence to support his commitment because the trial court relied on "stale" expert evaluations in finding he met the criteria for commitment under the Sexually Violent Predator Act (SVPA). He also asserts that his equal protection rights were violated by the court order for an indeterminate term of commitment.
We affirm the judgment.

Following a jury trial, Abran Franco was convicted of two counts of second degree murder (Pen. Code,[1] § 187, subd. (a)). As to each count the jury found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and found that a principal discharged a firearm resulting in death (§ 12022.53, subds. (d) & (e)(1)).
Franco was sentenced to an indeterminate term of 80 years to life in prison.
Franco appeals challenging only the conviction for murder in count 2. He also contends the abstract of judgment must be corrected to reflect the proper sentences for the murder counts. The People properly concede the abstract of judgment must be amended.
Franco's challenge to his conviction in count 2 is based on his claim the trial judge erred in refusing to instruct the jury on voluntary manslaughter based on imperfect self-defense. We find there is no factual basis in the record to support such instruction and affirm the conviction.

Plaintiff Susan Gomez appeals from a judgment in favor of defendant and respondent Padre Dam Municipal Water District (District), entered after the court sustained District's demurrer to Gomez's first amended complaint without leave to amend. The principal issue in this recreational use of property case is whether the trial court properly sustained the demurrer on the grounds that District was immune from liability under Government Code[1] section 831.4, subdivision (b). We affirm the judgment.
Factual and Procedural Background
On August 13, 2010, Gomez filed a government tort claim with District alleging she was injured on a "paved pathway" within Santee Lakes recreational park, a public property owned by District. Gomez was walking on the "paved pathway" when she stepped into a pothole and sustained significant injuries. District rejected her claim on August 16, 2010.

A jury convicted Warren Anthony Rabb of two counts of first degree murder (Pen. Code,[1] § 187, subd. (a); counts 1 & 2) and one count of attempted murder (§§ 664, 187, subd. (a); count 3). The jury also found true, as to all counts, that Rabb personally used a firearm (§ 12022.5, subd. (a)); personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)); and personally inflicted great bodily injury on the victims (§ 12022.7, subd. (a)). In addition, the jury found true a special circumstances allegation that Rabb was convicted of multiple murders (§ 190.2, subd. (a)(3)).
The court sentenced Rabb to prison for two consecutive life terms without parole plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d) on each of the first two counts, and 15 years to life plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d) for the third count. The court stayed the sentence of the remaining enhancements. The total sentence consisted of two life terms without the possibility of parole, plus 90 years to life.
Rabb appeals, contending the court abused its discretion by denying his motion to dismiss for the prosecution's delay in charging Rabb. He also argues his constitutional rights were violated when: (1) the prosecutor misstated the law regarding the appropriate burden of proof during her closing argument and (2) the court prohibited Rabb's expert witness from testifying about certain issues. We determine the court did not abuse its discretion in denying Rabb's motion to dismiss, but conclude the prosecutor prejudicially misstated the law as to the reasonable doubt standard during her rebuttal closing argument, and reverse the judgment for this reason. We do not reach Rabb's assertion that his Sixth Amendment rights were violated because the court, as a discovery sanction, did not allow Rabb's expert witness to offer certain testimony.

On February 5, 2010, a petition was filed under Welfare and Institutions Code section 602, subdivision (a), charging 15-year-old R.V. (the minor) with robbery (count 1; Pen. Code, § 211), assault with a deadly weapon (counts 2 & 3; Pen. Code, § 245, subd. (a)(1)), brandishing a knife (count 4; Pen. Code, § 417, subd. (a)(1)), and street terrorism (count 5; Pen. Code, § 186.22, subd. (a)). As to count 5, it was alleged that the minor committed the offense to benefit a criminal street gang. (Pen. Code, § 186.22, subd. (b).) All offenses were alleged to have been committed on or about February 3, 2010.

On March 24, 2008, a complaint filed in Lassen County Superior Court charged defendant Michael Karl McNeil with assault with a deadly weapon on or about December 15, 2007, and violation of a restraining order on or about December 26, 2007. As to the assault charge, the complaint alleged that defendant had incurred a prior strike.
On July 31, 2008, a complaint filed in Lassen County Superior Court charged defendant of unlawful taking and driving of a vehicle, grand theft, and violation of a court order, all taking place on or about June 2, 2008. The complaint alleged that defendant committed the offenses while on release from custody.
On August 8, 2011, the trial court granted the People’s motions to dismiss both cases in the interest of justice because defendant had been sentenced to a state prison term of 19 years in Los Angeles County.
On August 29, 2011, defendant in propria persona filed a “Motion to Seal and Destroy all Arrest Records” as to both cases, citing Penal Code section 851.8, subdivision (d).[1] The record does not show that the prosecuting attorney concurred in defendant’s motion, as required by Penal Code section 851.8, subdivision (d).
On March 20, 2012, the trial court denied the motion. The court’s order did not state reasons, but the court triply underscored “subdivision (d)” on the form.
Defendant filed a notice of appeal from the order denying the motion.

T.H., mother of the minor, appeals from orders terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395; statutory references that follow are to the Welfare and Institutions Code unless otherwise designated.) Appellant reasserts her challenge to the order denying her services which she first raised in an extraordinary writ that was denied in case No. C068854. (Cal. Rules of Court, rule 8.450.) Appellant also argues the court erred in failing to apply the sibling and beneficial relationship exceptions to avoid termination of parental rights and in failing to order an updated bonding study. Appellant contends the court erred in denying her petition for modification and that there was a failure to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). We affirm the orders of the juvenile court.
Facts and Proceedings
In April 2011, the El Dorado County Department of Human Services (the Department) filed a petition to detain 20-month-old Devin T. due to the parents’ substance abuse and failure to protect him. The minor was placed with a paternal aunt and his eight-year-old half sibling was placed with the maternal grandmother.

Defendant Michael Mau, a member of the South Side Tracy subset of the Norteño street gang, was thrown out of a nightclub for fighting. Moments later, he fired a handgun through the door of the nightclub, killing one person and injuring six.
A jury convicted defendant of second degree murder, six counts of attempted murder, and shooting into an occupied building, all with enhancements for benefitting a gang and personal use of a firearm causing death or great bodily injury. Defendant was also convicted of various firearm offenses and being an active gang participant. He was sentenced to 254 years and 8 months to life in prison.
On appeal, defendant does not challenge his convictions on the substantive offenses, but limits his contentions to issues involving the gang allegations. He contends there is insufficient evidence to support the gang enhancements, and also that he received ineffective assistance of counsel based on trial counsel’s failure to object to the gang expert (1) offering an opinion on the ultimate fact or (2) recounting 29 incidents of defendant’s contact with law enforcement.
Defendant also raises three sentencing errors--the People concede error on two. Defendant and the People agree that it was error to impose a 10-year gang enhancement on his murder count and on the charge of shooting at an occupied building. Defendant further contends the trial court erred in calculating his sentence on count VIII--shooting at an occupied building.
We shall modify defendant’s sentence and otherwise affirm. As we will explain, sufficient evidence supports the gang enhancements and defendant did not receive ineffective assistance of counsel. We agree with the parties regarding the two sentencing errors and shall affirm the calculation of defendant’s sentence on count VIII.

ngela A. appeals from an order of the juvenile court terminating her parental rights to her son, Walter D., and finding him adoptable. She contends the court erred in finding Walter adoptable and in denying her motion under Welfare and Institutions Code section 388.[1] We find no basis for reversal and affirm.

L.B. (mother) appeals from a judgment declaring her children to be dependents of the court pursuant to Welfare and Institutions Code[1] section 300, subdivision (b).[2] She contends that the evidence was insufficient to support a finding of jurisdiction as to her. We agree and will reverse the judgment in part and any orders based thereon.

Appellants sued respondent for posting a comment on the Internet criticizing appellants’ business. The trial court struck appellants’ complaint as a Strategic Lawsuit Against Public Participation (SLAPP). (Code Civ. Proc., § 425.16.)[1] We affirm.