CA Unpub Decisions

C.G. was declared a ward of the court under Welfare and Institutions Code section 602 after the juvenile court found true allegations that he committed robbery, burglary, theft from a merchant, and possessed alcohol when under 21 years of age in a public place. The court ordered C.G. to the Camp Barrett program for a period not to exceed 365 days. C.G. asserts that the true finding on the theft charge must be reversed because it is a necessarily included offense of robbery. We agree and will modify the judgment accordingly.

William D. Nordquist, D.M.D., and his professional corporation (together, Dr. Nordquist) appeal from an order denying a motion for judgment notwithstanding the verdict (JNOV). Dr. Nordquist contends that because respondent Patricia Riggs did not present standard of care testimony, the trial court should have granted a JNOV and entered judgment in his favor. We reject his argument and affirm the order.

A jury convicted defendants Cynthia Marquez and Luciano Rivera of first degree robbery in concert (Pen. Code,[1] §§ 211/213, subd. (a)(1)(A), count 1) and first degree burglary (§ 459/460, count 2), and found true the special allegations that defendants were armed with a firearm in committing the robbery (§ 12022.53, subds. (b) & (e)(1)), they committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)), and Rivera personally used a firearm in connection with count 2 (§ 12022.5, subd. (a)).
The jury also found Rivera guilty of four other offenses: assault by means likely to cause great bodily injury (§ 245, subd. (a), count 5) and battery causing serious bodily injury (§ 243, subd. (d), count 6) involving victim Antonio Perez; and assault (§ 240, count 7) and battery (§ 242, count 8) involving victim Mark Kaczmarczyk. The jury found true the special allegations appended to counts 5 and 6 that Rivera committed the offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b).) The jury also found true the special allegation appended to count 5 that Rivera personally inflicted great bodily injury on Perez within meaning of section 12022.7, subdivision (a), and found true the special allegation appended to count 6 that Rivera personally inflicted great bodily injury on Perez within meaning of section 1192.7, subdivision (c)(8). The jury also found true the special allegation appended to count 7 that Rivera committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)). In a bifurcated proceeding, Rivera admitted the allegations that he had a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction (§ 667, subds. (b)-(i)).

Defendant Bradley Alan Dayley was convicted on numerous counts of sexually abusing a child and was sentenced to an aggregate term of 60 years to life, plus eight months. Defendant’s sole contention on appeal is that the trial court “improperly imposed” Government Code section 29550.2 booking and classification fees. We disagree.[1]
At sentencing, the trial court ordered defendant to pay (among other fines and fees) a main jail booking fee of $270.17, and a main jail classification fee of $51.34. Defendant contends there is no evidence of the actual administrative costs of booking or classification, and there is insufficient evidence to support a finding that he had the ability to pay jail booking and classification fees. Accordingly, he contends, those fees should be stricken.

A jury convicted defendant Enrique Madera of conspiracy to commit robbery of Ricardo Hernandez (Pen. Code, §§ 182, subd. (a)(1), 211—count I),[1] attempted robbery of Hernandez (§§ 211, 664—count II), and assault with a deadly weapon (§ 245, subd. (a)(1) of Hernandez (count III), David Barajas (count IV), and Arney Giron (count V). An allegation that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) was found true as to count II but not true as to count I. Defendant’s motion for acquittal was granted on counts of burglary (§ 459—count VI) and conspiracy to commit burglary (§§ 182, subd. (a)(1), 459—count VII).
Defendant was sentenced to state prison for eight years, consisting of five years on count I (Hernandez), one year on count IV (Barajas), one year on count V (Giron), and one year for the weapon enhancement on count II. The trial court orally accepted the defense argument that section 654 applies to count III because the victim, Hernandez, was also the target victim of the count I conspiracy. The court did not orally address the identical argument with respect to count II. The clerk’s minutes and the abstract of judgment list the terms on counts II and III as concurrent, not stayed pursuant to section 654. Defendant was awarded 273 days of custody credit and 273 days of conduct credit pursuant to the relevant 2010 amendment to section 2933.
Defendant contends, and the Attorney General concedes, the sentences on counts II and III must be stayed pursuant to section 654. The parties further agree that, because count II must be stayed, so too must its weapon enhancement be stayed. We shall modify the judgment.

In this appeal, defendant Brandon Scott Smith asks us to dismiss a two-year sentence enhancement that was imposed upon him for committing a felony while out on bail. (Pen. Code, § 12022.1.)[1] We agree with the parties that, because defendant was not ultimately convicted of a felony for the original crime, the sentence enhancement was improperly imposed in the subsequent case and must be reversed.

Appellant S.N., the mother of the minor N.N., appeals from the juvenile court’s orders terminating her parental rights. (Welf. & Inst. Code, §§ 395, 366.26.) She contends the Butte County Department of Employment and Social Services (DESS) and the juvenile court did not comply with the notice requirements of the Indian Child Welfare Act. (ICWA; 25 U.S.C. § 1901 et seq.) We affirm.

A jury found defendant David Joseph Allen guilty of assault with a deadly weapon and attempting to make a criminal threat. (Pen. Code, §§ 245, subd. (a)(1), 664, 422.)[1] The conviction was based on the prosecution’s evidence that defendant had assaulted the victim by grabbing, hitting, punching, and choking her; and that he had threatened to kill her. Defendant contends reversal is required because the prosecution relied on, and the jury was instructed with, a legally incorrect theory of aggravated assault, i.e., feet and hands as deadly weapons. We agree and shall reverse his conviction for aggravated assault.

Defendant and appellant Rodwell H. Smith was convicted of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)[1]), and possession of marijuana for sale (§ 11359). On appeal, appointed counsel for Smith filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent review of the record to determine if there are any arguable issues. On January 23, 2012, we attempted to give written notice by mail to Smith, at the two addresses for him that were reflected in the record, to advise him that his counsel had failed to find any arguable issues and that Smith had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Our written notices were returned to us as “not deliverable” and “unable to forward.” We contacted Smith’s counsel who advised us that he did not have an address for Smith other than the addresses we attempted to use to provide Smith with notice of the Wende proceedings. We then contacted the City of Pomona Probation Department and the Harbor Division of the Probation Department who advised us that they had an address for Smith that was outside of the State of California. We gave written notice by mail to Smith, at the address provide to us by the Probation Department, to advise him that his counsel had failed to find any arguable issues and that Smith had 10 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Smith did not file a responsive brief or letter. We have reviewed the record and affirm the judgment as to Smith.

Southern California Gas Company (Southern California Gas) petitions for a writ of mandate directing the superior court to vacate its order requiring further responses to five requests for admission and, impliedly, an interrogatory requesting information supporting anything other than an unqualified admission of each request. Southern California Gas contends the order would require it to reveal material protected by the work product doctrine. We grant the petition.

Rafael M. (Father) appeals from the juvenile court's order terminating his parental rights to two of his three biological daughters, C.M. (born July 2001) and E.M. (born April 2005). He contends the children have beneficial relationships with him and with their siblings that should have prevented the termination of his parental rights. (Welf. & Inst. Code, §§ 366.26, subd. (c)(1)(B)(i), (c)(1)(B)(v).)[1] We affirm.

Defendant and appellant Neziah Ignatius Nesbeth, and his co-defendant, Rodwell H. Smith,[1] were convicted of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)[2]). Smith was also convicted of possession of marijuana for sale (§ 11359). On appeal, Nesbeth contends that the trial court punished him for exercising his right to trial by sentencing him to a two year term in state prison, erred in instructing the jury pursuant to CALCRIM 2361, and in denying his Penal Code section 1118.1 motion for judgment of acquittal. We affirm Nesbeth’s judgment of conviction.

Defendant and appellant California Bank & Trust (the bank) appeals from an order denying its motion to compel arbitration of a lawsuit brought against it by plaintiff and respondent Pacific Funding Group, Inc. (Pacific). The bank contends the trial court erred in finding it had waived the right to compel arbitration. We affirm.

Nicholas Di Napoli (Nicholas) was born in 2007. His father, Nicholas Jr. (Nick) is a U.S. citizen, his mother, Patarawand (Pat) is a dual citizen of Thailand and the United States.[1] They have ended their seven year marriage. Pat wishes to return to Thailand with Nicholas. Nick opposed the move contending that cultural differences, distance and the enforceability of court orders preclude granting Pat's request. In an excellent, thoughtful and thorough statement of decision the trial judge weighed the relevant factors and found, inter alia, the "best interests of [the Child] requires an award of joint legal custody . . . and an award of approximately 75% physical custody to Pat in Thailand and 25% physical custody to [Nick] in California . . . ."
Nick appeals and contends that the trial court abused its discretion by ignoring the requisite legal factors in its assessment of whether the move-away order was in Nicholas' best interest. Our review of the record discloses that two loving parents could not agree upon the care and custody of their child. Their disagreement appears to have been grounded on irreconcilable notions of what would be best for Nicholas given their respective futures. It is equally clear that the trial court did anything but abuse its discretion in resolving this Solomonic dispute. We affirm.[2]