CA Unpub Decisions

A.P. (mother) petitions this court for an extraordinary writ pursuant to Welfare and Institutions Code section 366.26 and California Rules of Court rule 8.452, seeking review of the juvenile court’s order terminating her reunification services and setting the matter for hearing to implement a permanent plan for her son, A.O. (minor).[1] Mother seeks this relief on the ground that there was insufficient evidence in the record to support the juvenile court’s finding no substantial probability existed, if reunification services were extended, minor would be returned to mother within 18 months. We deny the writ petition, as well as mother’s related request for a stay of these proceedings.

T.S. appeals from a dispositional order of the juvenile court that placed him in juvenile hall subject to a subsequent status review. We dismiss his appeal as moot because T.S. was released from juvenile hall in August 2012 and we can grant no effective relief.

In this appeal, defendant and appellant Faustino Perez seeks to reverse his judgment of conviction for attempted murder, assault with a firearm and possession of a firearm by a felon, on the grounds that the trial court should have declared a doubt as to his competency to stand trial, suspended trial proceedings and ordered a hearing to evaluate his competency, pursuant to Penal Code section 1368.[1] Having carefully reviewed the record on this point, we conclude defendant’s contention is supported by substantial evidence, therefore the trial court abused its discretion by failing to proceed pursuant to section 1368. Accordingly, we reverse the judgment and remand the matt

The trial court found that appellant Cornelious Joseph Boyle was a sexually violent predator and ordered him to be committed indefinitely to Atascadero State Hospital. He appeals, raising due process, ex post facto, double jeopardy and equal protection challenges to his commitment pursuant to an amended version of the Sexually Violent Predator Act (SVPA). (See Welf. & Inst. Code,[1] §§ 6600-6609.3.) Boyle also argues that the underlying petition should have been dismissed for material legal error; that his counsel was ineffective at his court trial; and that there was insufficient evidence of qualifying offenses to support his commitment.
In July 2008, we affirmed the commitment order. In August 2008, the California Supreme Court granted Boyle’s petition for review but deferred briefing until it issued its decision in People v. McKee, a case then pending on the state high court’s docket. In January 2010, the court issued its McKee decision, which remanded that matter to the trial court for a further hearing on the equal protection issue. (People v. McKee (2010) 47 Cal.4th 1172, 1208-1211 [McKee I].) In May 2010, the California Supreme Court transferred Boyle’s case back to our court with directions to vacate our July 2008 decision and reconsider the matter in light of McKee I. Mindful of the trial court hearing that had not then been held in McKee’s case, the California Supreme Court also ordered us to suspend proceedings in Boyle’s case until the trial court proceedings in the McKee case and any proceedings in which it was consolidated were final, including any appeals and matters before the California Supreme Court. As directed, we suspended proceedings in May 2010 until a final decision in McKee would trigger reconsideration of our July 2008 decision.

The minor, J.H., admitted an allegation that he had committed misdemeanor battery (former Pen. Code, §§ 242, 243.6), and, after a contested hearing, the juvenile court found true the allegations that he had committed an unrelated felony assault and had personally inflicted great bodily injury (former Pen. Code, § 245, subd. (a)(1); Pen. Code, §§ 12022.7, subd. (a), 1203, subd. (e)(3)). The record does not reflect that the juvenile court orally declared the assault offense to be a felony or a misdemeanor. The minor was committed to the enhanced ranch program for six to eight months.
On appeal, the minor contends that remand is required because the juvenile court failed to specify whether the assault offense was a felony or a misdemeanor. The Attorney General concedes the issue. We agree with the concession and remand the matter for the juvenile court to declare whether the assault offense is a felony or a misdemeanor.

Defendant Nicolas Harris has filed two appeals arising from two resentencing proceedings in a case where a jury convicted him of stealing over $150,000 by false pretenses from two elderly single men and then attempting to dissuade one of the victims from testifying against him. Considering four prior convictions for purposes of the Three Strikes law, the trial court resentenced defendant to 77 years to life, which generated appeal No. H036908. And, at a later hearing, it reimposed a $10,000 restitution fine and a $276 booking fee, which generated appeal No. H037667. Defendant contends that the trial court erred by failing to entertain a Romero[1] motion and reimposing the fine and fee. We ordered the appeals considered together for the purpose of briefing, oral argument, and disposition. The People concede that the matter should be remanded for a Romero hearing. And we agree that the concession is appropriate. We therefore reverse the judgment and remand for resentencing.

A jury convicted defendant Jon Andre Borbon of three counts of committing lewd acts on a child (M.W.) and one count on another child (A.D.), both under the age of 14. (Pen. Code, § 288, subd. (a).) The court sentenced defendant to 12 years in state prison.
Defendant contends the court erred in sustaining the prosecutor’s objections during defense questioning of a social worker, M.W., and M.W.’s friend, and excluding both evidence M.W.’s mother was sexually abused and expert testimony on the effects of improper questioning on a child. Finding no error, we need not address defendant’s claim of cumulative error and affirm the judgment.

P.M. (mother) challenges by writ petition a superior court order terminating reunification services and setting a Welfare and Institutions Code, section 366.26 hearing to select and implement a permanent plan for mother’s seven- and eight-year-old daughters.[1] Mother contends there was insufficient evidence to support the court’s finding that she received reasonable services. She also argues the court should have granted her additional time to reunify. On review, we will deny mother’s petition, as we conclude the court did not err.

Plaintiff and appellant, John J. Koresko, challenges a judgment awarding costs to respondent Mountain Valley Association (MVA) as the prevailing party in an action arising out of a private road improvement project. After the trial court struck appellant’s first amended complaint (FAC), the trial court awarded MVA $1,121 in costs. Appellant contends that MVA is not entitled to costs because MVA was named as a nominal defendant and was not properly served with a summons.
However, MVA made a general appearance. Thus, the trial court had jurisdiction over MVA. As a prevailing party, MVA is entitled to costs as a matter of law. Accordingly, the judgment will be affirmed.

Marilyn H. (mother) appeals from jurisdictional findings and the consequent dispositional order that removed her 12-year-old daughter, Lacey H., from the physical custody of mother and Lacey’s father, and gave mother reunification services. Mother contends the juvenile court erred in finding jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (d).[1] Mother also contends the order temporarily removing Lacey from her custody is not supported by evidence that removal was necessary to avoid a substantial danger to Lacey’s physical health or emotional well-being and there were no reasonable means to protect her physical or emotional health without removing Lacey from her custody. (§ 361, subd. (c)(1).) As we shall explain, we disagree with mother’s contentions and will affirm the juvenile court’s orders.

Appellant challenges the legality of a no-visitation order. Respondent concedes that the order was unauthorized. We accept the concession as properly made and will strike the no-visitation order.

Ivan Sapp, defendant and appellant (defendant), appeals from the judgment entered after a jury found him guilty as charged on two felony counts—penetration by a foreign object in violation of Penal Code section 289, subdivision (a)(1) (count 1) and lewd and lascivious conduct in violation of Penal Code section 288, subdivision (c)(1)[1] (count 2). John Doe was the alleged victim of both counts. The jury also returned true findings on various special allegations and prior conviction sentence enhancements, the details of which are not relevant to this appeal. Based on the jury’s guilty verdicts and true findings, the trial court sentenced defendant to serve a total term of 18 years in state prison.
This appeal is defendant’s second; in the first (E031057) we reversed his conviction on the noted charges because the trial court had wrongly denied defendant his constitutional right to self-representation.[2] Defendant contends in this appeal that we should again reverse his conviction because the prosecutor committed misconduct during closing argument by referring to defendant as a hardened, experienced criminal. Defendant concedes his trial attorney did not object to the prosecutor’s argument. He contends, however, that his motion for mistrial was sufficient to preserve the issue for review on appeal and that an objection would have been futile. Alternatively, defendant contends that his trial attorney was ineffective for failing to object.
We disagree with each of defendant’s assertions, and therefore we will affirm.

A jury found defendant Henry Gabriel Pereyra guilty as charged of battery with injury on a peace officer, forcibly or violently resisting a peace officer in the performance of his duties, and unlawfully using a controlled substance, methamphetamine. (Pen. Code, §§ 243, subd. (c)(2), 69; Health & Saf. Code, § 11550, subd. (a); counts 1, 2, & 3.) Defendant was sentenced to three years on count 1, a consecutive eight-month term on count 2, and 90 days in jail on count 3. The crimes occurred on December 18, 2008, when defendant confronted several police officers who were responding to a 911 call involving defendant’s brother.
In this appeal, defendant claims his misdemeanor conviction in count 3 must be set aside. We agree and reverse defendant’s conviction in count 3. No evidence supporting the charge was adduced at the preliminary hearing on the felony charges in counts 1 and 2, and the information was erroneously amended to add the misdemeanor charge before trial, over defense counsel’s objection. (Pen. Code, § 1009.)[1]
Defendant also claims the court abused its discretion in refusing to continue the trial for two weeks, after the jury was selected, to allow him to locate a defense witness. We find no abuse of discretion or due process violation in the denial of the continuance. Next, defendant claims that the cumulative effect of multiple trial errors deprived him of his fundamental right to a fair trial. We find no individual or cumulative trial error. We also reject defendant’s claim that his separate sentence on count 2 should have been stayed under section 654.
Lastly, defendant claims and the People agree that defendant is entitled to monetary credit against his fines for excess presentence custody credits. (§ 2900.5.) We agree and modify the judgment to deem defendant’s $380 in fines paid in full.

Nicole E. Gayan and her ex-husband Derren L. Geiger have lived in different states since 2006 when they entered into a marital settlement agreement (MSA). Under the MSA, they have joint legal and physical custody of their two children. The children originally lived with Gayan during the school year and with Geiger during school breaks. Gayan appeals an order reversing the parenting schedule based on a substantial change of circumstances.