CA Unpub Decisions

Debra Marie Jones pled guilty to selling cocaine base in 2009 and was granted probation. In 2011, while on probation, she again sold cocaine base, was charged and pled guilty. After the second offense, the trial court revoked probation; sentenced Jones to county jail for concurrent terms of three years each; and ordered her to pay various fines, fees and assessments. In this appeal, Jones challenges several of the monetary impositions. We modify the judgments and affirm in part as to the amounts of certain fees and assessments, and reverse the judgments in part and remand for resentencing regarding the imposition of certain other fines and fees.

In an action initiated by the County of San Diego Department of Child Support Services (the Department) to recoup public expenditures for child support provided to his two minor sons, Gregory A. Smart, Sr. appeals a pendente lite order directing him to pay $136 in monthly child support to the California State Disbursement Unit (CSDU). Smart contends the order violates his federal constitutional rights because he was not provided counsel at public expense. Because Smart has no constitutional right to appointed counsel in this action, we affirm the challenged order.

A jury found Victor A. Acosta qualified as a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,[1] § 6600 et seq.). The trial court in April 2011 ordered Acosta civilly committed for an indeterminate term.
Acosta does not challenge the sufficiency of the evidence to support the jury's findings. Instead, Acosta contends (1) his civil commitment violated the right to equal protection under the law; (2) the 45-day extension hold under section 6601.3 was placed on his scheduled release date without good cause in violation of his due process rights; (3) the trial court erred (i) in limiting him to six peremptory challenges and, as such, he was denied due process under the law, (ii) in failing to dismiss jurors or make adequate inquiry following alleged misconduct by the jurors and (iii) in instructing the jury regarding the various elements to establish he qualified as a SVP, which he contends effectively lowered the people's burden of proof; and (4) conversely, to the extent defense counsel failed to make proper and timely objections during trial, he received ineffective assistance of counsel.
As we explain, we reject each of these contentions and affirm Acosta's judgment of commitment as an SVP.
Acosta has also filed a petition for writ of habeas corpus, D062392, which by separate order we have consolidated with his appeal for purposes of disposition. Acosta's petition alleges several of the same contentions Acosta raised in his appeal, does not include any contentions that were not the subject of his appeal and does not rely on any evidence outside the appellate record. Accordingly, we deny the petition.

A jury convicted defendant Donnell Boyce of second degree robbery, grossly negligent discharge of a firearm, possession of a firearm by a convicted felon, and assault with a semiautomatic firearm. The trial court denied defendant’s motion for a new trial and sentenced him to 41 years in prison.
Defendant contends (1) the trial court erred in denying his request to instruct the jury with CALCRIM No. 306 [untimely disclosure of evidence], and (2) his trial counsel rendered ineffective assistance in connection with the motion for a new trial.
We conclude (1) the trial court did not err in declining to instruct the jury regarding the prosecutor’s late disclosure of a gunshot residue report because the report was disclosed a week before trial, the trial court offered to continue the trial, and the late disclosure had no effect on the trial; and (2) defendant’s claim of ineffective assistance lacks merit because he has failed to show prejudice.
We will affirm the judgment.

Defendant Jose Antonio Rodriguez entered a negotiated plea of no contest to actively participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)) and possessing a concealed and loaded firearm in a vehicle (Pen. Code, former § 12025, subd. (a)(1), (b)(6)(A)-(B) [now § 25400, subd. (a)(1), (c)(6)(A)-(B)]) in exchange for dismissal of the remaining count, discharging a firearm at an inhabited dwelling (Pen. Code, § 246), with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, and no state prison at the outset.[1] The gang enhancement attached to the remaining count was stricken.
On December 8, 2008, the court granted defendant formal probation for a period of five years subject to certain terms and conditions, including that defendant serve a one-year term in the county jail term and that defendant “not . . . use or possess marijuana with or without a prescription, without prior written permission of the court.”
On July 15, 2011, defendant sought modification of probation, requesting permission to possess and use marijuana in accordance with his medical recommendation. The People opposed modification of probation. After a hearing, the court denied defendant’s request.
Defendant contends that the trial court abused its discretion in denying his request for modification of probation to allow him to use medical marijuana. We affirm.

A jury convicted defendant John Kevin Parker of possession of a firearm by a felon and obstructing or delaying a peace officer. Defendant admitted a prior serious felony conviction and three prior prison terms. The trial court denied his motion for a new trial and his motion to dismiss the prior strike conviction, and sentenced defendant to seven years in prison.
Defendant contends the trial court (1) erred in denying his motion for a new trial, and (2) abused its discretion in denying his motion to dismiss the prior strike conviction. Finding no error or abuse of discretion, we will affirm the judgment.[1]

Defendants Eduardo Zamora and Amber Ingram murdered Ingram’s five-year-old son, Braeden Gardner. Zamora beat the child to death. Ingram, with knowledge that Zamora was repeatedly and severely beating her son, did nothing to prevent the abuse and facilitated it by providing Zamora with unsupervised access to the child. Zamora and Ingram were charged with murder. (Pen. Code, § 187, subd. (a).)[1] With respect to Zamora, the murder charge included a special circumstance allegation that the murder was intentional and involved the infliction of torture. (Former § 190.2, subd. (a)(18).) Zamora was also charged with assault on a child involving force likely to produce great bodily injury and resulting in death (§ 273ab, subd. (a)) and the substantive crime of torture (§ 206). Ingram, in addition to murder, was charged with permitting a child to suffer unjustifiable physical pain or injury with an enhancement allegation that such conduct resulted in the child’s death. (§§ 273a, subd. (a), 12022.95.)

Christopher W., a minor, appeals the juvenile court's order declaring him a ward of the court and committing him to a 180-day program at Los Prietos Boys Camp. (Welf. & Inst. Code, § 602.) The order was issued following the minor's admission that he made two misdemeanor criminal threats (Pen. Code, § 422). In exchange for his admission, another allegation charging him with committing a battery (Pen. Code, § 242) was dismissed.

Michael Angelo Gomez appeals the judgment entered after he pleaded no contest to lewd conduct with a child under the age of 10 (Pen. Code, § 288.7). The trial court sentenced him to the upper term of eight years in state prison.
Appellant sexually molested his girlfriend's granddaughter on numerous occasions when the child was 4 and 5 years old. Appellant had sexual intercourse with the victim and sodomized and orally copulated her. He also made her orally copulate and masturbate him. When interviewed at the county jail after his arrest, appellant stated that the victim "asked me to do those things to her."
We appointed counsel to represent appellant in this appeal. After counsel's examination of the record, counsel filed a brief raising no issues.

L.C., mother, appeals from juvenile court orders asserting jurisdiction over her son, John M., and removing him from her custody. Mother contends the dependency petition was facially insufficient, and substantial evidence did not support the jurisdictional or dispositional orders. We affirm.

Defendant Bruce Westin, who was on probation following his conviction of felony vandalism (Pen. Code, § 594, subd. (a)), was found to be in violation of his probation on July 19, 2011. The trial judge revoked and reinstated his probation, on condition that he serve 45 days in county jail and submit to periodic narcotics testing. Defendant appealed, and we affirmed the order in case No. B234855. On April 13, 2012, the trial court remanded defendant to serve his 45-day county jail sentence. Defendant filed a notice of appeal from the April 13, 2012 order, and his appointed counsel filed an opening brief under People v. Wende (1979) 25 Cal.3d 436. We conclude that the order that defendant purports to appeal is not an appealable order. The order is analogous to an order to execute a sentence that had been imposed and stayed pending appeal; if the imposition of the sentence is affirmed on appeal, the subsequent order to execute the sentence is not appealable. We therefore dismiss defendant’s appeal.

Shawn Cornell pled no contest to one count of grand theft of personal property (Pen. Code, § 487, subd. (a)).[1] The trial court sentenced Cornell to two years in county jail (§ 1170, subd. (h)(1) & (2)), with credit for 28 days served, and ordered him to pay $72,340 in restitution to the victim (§ 1202.4, subd. (f)).[2] Based on the amount of restitution ordered, Cornell appealed. We affirm the judgment.

Pursuant to a negotiated agreement, Adam Lance Silver pleaded no contest to two counts of committing a lewd act upon a child under the age of 14 years and was sentenced to an aggregate state prison term of 10 years. On appeal Silver contends the minute order entered following his sentencing hearing and the abstract of judgment should be corrected to conform to the trial court’s oral pronouncement of judgment, which did not include any penalty assessments on the sex offender fine. He also contends the trial court miscalculated his presentence custody credit. We affirm the judgment as modified.

This appeal arises from an action for malicious prosecution by Appellant Xin Gao against Respondent Tony Lu. Lu, an attorney, represented Town House Land (Miami) Corporation (Town House) in an action for fraud that it filed against Gao. After Gao obtained a judgment of dismissal in the underlying action, he sued Lu and Town House for malicious prosecution, conspiracy, and abuse of process. In response, Lu filed a special motion to strike under California Code of Civil Procedure section 425.16, the anti-SLAPP statute.[1] The trial court granted the motion to strike. Because Gao did not make a prima facie showing that Lu filed the fraud action against him without probable cause, the trial court properly granted the special motion to strike. Accordingly, we affirm.