CA Unpub Decisions

P.C. (daughter) was removed from the custody of petitioner, Doctor P.C. (mother) and declared a dependent child of the court due to concerns about mother’s mental health and the effect of mother’s behavior on daughter’s well-being. After 18 months in care, daughter was thriving in a prospective adoptive home. Mother had made no substantive progress in court-ordered therapy. At the 18-month review hearing the juvenile court accepted the recommendation of the Santa Clara County Department of Family and Children’s Services (Department) to terminate reunification services (Welf. & Inst. Code, § 366.22, subd. (a))[1] and set a selection and implementation hearing pursuant to section 366.26. Mother petitions for a writ of mandate directing the juvenile court to vacate that order. Mother argues that there is no substantial evidence to support a finding that returning daughter to her custody would pose a substantial risk of detriment to the child. Department maintains that the evidence is sufficient to support the finding. We agree with Department. Accordingly, we deny the petition.

On appeal, minor D.H. challenges a probation condition requiring him to stay away from his next-door neighbor and her house, which he burglarized.[1] Minor’s opening brief challenges the juvenile court’s oral statement of the condition at the dispositional hearing on October 12, 2011: “Stay away from the victim Ms. Gonzales, her property at [a street address], Watsonville.” He contends that this condition is unconstitutionally vague and overbroad, as it should include a knowledge requirement and specify a certain distance that he must stay away.
The Attorney General contends that both of these problems are solved by the written terms and conditions of minor’s probation filed with the dispositional orders, which state: “Do not knowingly contact or approach . . . Cedelia Gonzalez [street address,] Watsonville. . . . Do not knowingly come within 100 yards of this person(s)/place(s).” While arguing that the written condition is generally constitutional, the Attorney General proposes that the 100 yard distance should be modified to account for the minor living next door to the victim.
For the reasons stated below, we will reverse the order after concluding that it requires an express knowledge condition and another modification that the record does not allow us to make.

Defendant Vernon D. Thielman appeals from a judgment awarding plaintiff Canepa Design the balance due on a promissory note. Defendant argues that the trial court erred in refusing to continue the trial date because plaintiff’s discovery responses were not delivered in time for defendant to prepare for trial. We conclude that the record is inadequate to show error.

Defendant David Henry Kennedy was convicted after jury trial of one count of making a criminal threat to Tasha Davis and one count of making a criminal threat to Sherilyn Massaro. (Pen. Code, § 422).[1] The jury was unable to reach a verdict as to a count of making criminal threats to Tina Brown and as to a misdemeanor count of resisting an officer (§ 148, subd. (a)(1)), and the trial court dismissed those charges upon motion of the prosecutor. The court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve one year in county jail. The court separately ordered defendant to pay a presentence investigation fee of $300 pursuant to section 1203.1b.
On appeal, defendant contends that (1) the trial court’s refusal to require the prosecutor to elect which act the individual charges were based on violated his rights to due process and a fair trial, (2) the court erred by giving a misleading modified instruction regarding the section 422 charges, (3) the cumulative effect of the errors requires reversal, and (4) the court improperly imposed the $300 presentence investigation fee. We will affirm the judgment.

Jessica M. seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested 18-month review hearing (Welf. & Inst. Code, § 366.22)[1] terminating reunification services and setting a section 366.26 hearing as to her daughter Alyssa. We deny the petition.

In April 2010, appellant, Rene Wilfredo Arias Melgar, pursuant to a plea agreement, pled no contest to possession of methamphetamine for purposes of sale, in violation of Health and Safety Code section 11378 (section 11378). In June 2010, the court placed appellant on five years’ probation. More than one year later, on August 3, 2011, appellant filed a notice of motion to vacate his conviction pursuant to Penal Code section 1016.5 (section 1016.5)[1] on the grounds the court in April 2010 did not adequately inform him of the immigration consequences of his plea. At a hearing on August 24, 2011, the court denied the motion. The instant appeal followed. Appellant requested that the court issue a certificate of probable cause. The court granted that request.
Appellant’s sole contention on appeal is that the court erred in denying his motion to vacate the judgment. We affirm.

Appellant/defendant Gilbert Albert Chavez was charged and convicted of count I, assault with intent to commit rape during a first degree burglary (Pen. Code,[1] § 220, subd. (b)); count II, first degree burglary (§ 459), with the special allegation that another person, other than an accomplice, was present in the residence during the commission of the offense (§ 667.5, subd. (c)); and count III, rape of an unconscious person (§ 261, subd. (a)(4)). He was sentenced to life with the possibility of parole for count I, and the midterm of six years for count III; the court stayed the term imposed for count II.
Defendant was alleged to have committed the offenses after he had been at a party at the home of the reporting victim (hereinafter “S.N.”), and her husband (hereinafter “J.N.”), during which defendant, the hosts, and the party guests continually drank beer and vodka for hours. Defendant left the party with his adult sons, but returned to S.N. and J.N.’s house by himself. He drank more beer, went into their house to use the restroom, fell asleep, woke up, got into bed with S.N. and J.N., and performed an act of sexual penetration on S.N. S.N. knew that a man was trying to have sex with her but thought he was her husband. When S.N. realized that he was not her husband, she screamed and her husband confronted him, and defendant left the bedroom.

Brandy C. appeals the findings and orders entered at the termination of parental rights hearing held under Welfare and Institutions Code section 366.26. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error.
In In re Sade C., the California Supreme Court held review under People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order obtained by the state, adversely affecting his [or her] custody of a child or his [or her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny Brandy's request to review the record for error and to address her Anders issues. (Anders v. California (1967) 386 U.S. 738.)
Citing In re Phoenix H. (2009) 47 Cal.4th 835, Brandy's counsel also asks this court to exercise its discretion to provide her the opportunity to file a supplemental brief in propria persona. The request is denied.

Gabriel V. appeals an order summarily denying his Welfare and Institutions Code section 388 petition. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error.

J.G. appeals a judgment and order reestablishing a conservatorship of her person pursuant to the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, § 5000 et seq.).[1] She contends that the judgment and order is void because the petition of the San Diego County Health and Human Services Agency, Office of the Public Conservator (the Agency) seeking the reestablished conservatorship was not timely filed, thus depriving the superior court jurisdiction over the matter. We reject J.G.'s argument and affirm the judgment and order.

Following a bench trial, Rennard Cawkwell was convicted of attempting to contact a minor with the intent to commit a sexual offense (Pen. Code,[1] §§ 664, 288.3, subd. (a)); attempting to commit a lewd act upon a child (§§ 664, 288, subd. (a)); and possession of child pornography (§ 311.11, subd. (a)). The trial court sentenced Cawkwell to prison for four years eight months. Cawkwell appeals, challenging the sufficiency of the evidence to support his attempt convictions. We affirm the judgment.

In this consolidated action, Union Bank, N.A. (Union Bank) appeals from a summary judgment in favor of plaintiff Ellen Gallagher on the lawsuit that she filed against Union Bank after it took steps to foreclose on her home. At issue is whether Union Bank has a valid security interest in Gallagher's home based on a deed of trust it obtained as a result of a home equity line of credit it extended to a prior owner, but which was not reconveyed in connection with a previous sale. The trial court granted summary judgment in favor of Gallagher, determining that a payoff demand statement that Union Bank issued in connection with the previous sale served to extinguish Union Bank's security interest.
We conclude that Gallagher did not establish in her summary judgment that Union Bank lacks a valid security interest in Gallagher's home, and accordingly we reverse the judgment. We also consider and reject Union Bank's argument that the trial court abused its discretion by granting Gallagher's motion to quash relating to certain business record subpoenas served by Union Bank on third parties. Moreover, based on our reversal of the judgment, we also reverse the trial court's postjudgment order awarding attorney fees to Gallagher.

By this appeal and consolidated proceeding for writ of habeas corpus, Mathew Ruben Manzano challenges the judgment sentencing him to prison after a jury found him guilty of the first degree murder of Raymond Holguin, Jr., and the second degree murder of Fernando Gurule. In both the appeal and the habeas corpus proceeding, Manzano contends his trial counsel was ineffective for failing to correct and failing to assign as misconduct certain factual misrepresentations made by the prosecutor during the guilt phase closing argument. In the appeal, Manzano additionally contends the prosecutor unconstitutionally used peremptory challenges to prevent Hispanic men from sitting on the jury; trial of the guilt phase by a death-qualified jury violated his constitutional rights; the court erroneously sentenced him to life in prison without the possibility of parole (LWOP) for the second degree murder of Gurule; and the cumulative effect of trial errors unconstitutionally deprived him of a fair trial.
We agree the court imposed an unauthorized prison term of LWOP for the second degree murder of Gurule and modify the judgment to impose the correct prison term of 15 years to life. We reject Manzano's other arguments, affirm the judgment as modified, and deny the petition for writ of habeas corpus.

L.D., the mother of T.D. (age nine), D.W. (age six) and K.J. (age two), appeals from dispositional orders of the Sacramento County Juvenile Court bypassing her reunification services, setting a selection and implementation hearing for T.D., and placing D.W. and K.J. with their respective fathers. (Welf. & Inst. Code, §§ 361.5, subd. (b)(6) (hereafter section 361.5(b)), 366.26.)[1]
On appeal, mother contends the bypass of reunification services was error because (1) she did not inflict the requisite “severe” physical abuse, and (2) she was capable of benefiting from reunification services. Neither claim has merit.