CA Unpub Decisions

Defendant and appellant Ian Lamonte Cormier was charged with assault with a deadly weapon likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) After the court ordered some psychiatric evaluations, it found defendant was incompetent to stand trial, and suspended the proceedings. Defendant has appealed, however, contending that the trial court erred in refusing to hear his motion, under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), to appoint a new attorney. We conclude that any error in failing to hold a hearing is harmless.

Charlotte Brownell Kent (appellant) appeals from an order entered October 28, 2010, vacating a money judgment in her favor entered June 26, 2006, which purportedly represented the balance her former husband, David Brownell (Brownell), owed to her on a $49,983 equalization payment awarded to appellant in their marital dissolution proceeding.[1] The trial court found the June 26, 2006, judgment was improper and erroneously entered because the equalization award had been satisfied. Appellant, who represents herself in this appeal, raises various claims challenging the trial court’s order vacating the judgment. We conclude her claims are meritless and therefore we will affirm.

Defendant and appellant Clyde Johnson, Jr., pleaded guilty to offenses arising out of a vehicle pursuit that had taken place on August 20, 2006. After his plea, defendant filed the instant appeal, alleging that a material term of his plea bargain had not been honored: He had been promised at the time of plea that he would be able to earn 50 percent credits against his sentence, but in fact he was ineligible to earn credits at that rate, because of his prior strike conviction.
Defendant had also filed a writ proceeding, based on the same alleged failure to honor the plea bargain. This court referred the matter to the superior court with directions to issue an order to show cause. The trial court held oral argument on August 26, 2011, and granted the writ. The court found that defendant had been misinformed about his eligibility to receive 50 percent credits on his state prison sentence. The court granted relief in the form of withdrawing defendant’s guilty pleas and reinstating the charges against him.
Defendant urges that the court could and should have granted relief in the form of specific performance of the plea bargain. The Attorney General maintains that the matter is moot, because defendant, after having his pleas withdrawn, has again pleaded guilty and been sentenced to four years in state prison. We agree with the Attorney General that this appeal is now moot.

Robert P.[1] and N.T. (together the parents) contend the juvenile court erred when it set a hearing under Welfare and Institutions Code[2] section 366.26 to select and implement a permanency plan for their son, R.P. The parents contend the evidence is insufficient to support the finding that return to N.T.'s custody would be detrimental to R.P.'s safety, protection, or physical or emotional well-being. We deny the petition.

Appellant James V., the father of the minor M.V., appeals from the juvenile court’s orders terminating his parental rights and denying his petition for modification. (Welf. & Inst. Code, §§ 395, 388, 366.26.)[1] He contends the juvenile court erred in denying his petition for modification and in failing to apply the parent-child relationship exception to adoption. We shall affirm.

S. S. (mother) appeals from the juvenile court’s denial of her petition to modify an existing order and the subsequent termination of her parental rights. (Welf. & Inst. Code,[1] §§ 366.26, 388.) We shall affirm.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Having reviewed the record as required by Wende, we modify and affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
While investigating a reported theft, Roseville Police Officer Jeremy Guess followed defendant Mark David Jordan’s car for about one-fourth of a mile. Defendant voluntarily pulled his car over and Officer Guess went to speak with him. Defendant was nervous and shaking. He gave Officer Guess his California identification card because his driver’s license had been suspended. Defendant consented to a vehicle search. In the trunk area of the car, Guess found a digital scale and two baggies containing cocaine. A canine officer conducted a search as well and found a third baggie containing cocaine underneath the casing around the gear shift. The total aggregate weight of the cocaine was over 27 grams. Defendant said he was taking the drugs to a buyer in the city who was going to take them to Las Vegas. Roseville Police Officer Jeff Kool testified as an expert and opined that, based on the quantity and the packaging, the drugs were possessed for sale.

T.M., mother, appeals from the juvenile court’s order terminating her parental rights to now six-year-old Brandon N. Mother contends that the juvenile court erred by failing to find the beneficial parental relationship exception to the termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)[1] (section 366.26(c)(1)(B)(i)). We affirm.

J.C., presumed father (father) of now 15 year-old Joshua C., appeals from the juvenile court’s orders denying two substantively similar Welfare and Institutions Code section 388[1] petitions without hearings. Those petitions sought to change the juvenile court’s orders detaining and releasing Joshua to his mother, J.G. (mother). Father asserted that the reports that the Los Angeles County Department of Children and Family Services (Department) prepared contained “spoliated” evidence and false and misleading statements. Father requested a hearing so that he could present evidence challenging the false statements. Father also asserted that it was not in Joshua’s best interest to remain with mother in part because of mother’s deficient parenting methods. We affirm.

David H. (father) and Josie H. (mother) (collectively, the parents) appeal from an order of the juvenile court declaring their daughter, Cassandra, a dependent child of the court under Welfare and Institutions Code[1] section 300, subdivision (b). The parents contend there is insufficient evidence to support the juvenile court’s jurisdictional finding because there was no evidence at the time of the hearing that the parents could not adequately supervise and protect Cassandra.[2] The Los Angeles County Department of Children and Family Services (DCFS) defends the jurisdictional finding, but also moves to dismiss the parents’ appeal on the ground that it is moot because the juvenile court has terminated jurisdiction. We conclude that the appeal is not moot, and that there was insufficient evidence to support the jurisdictional finding. Accordingly, we reverse the order declaring Cassandra a dependent child of the court.

Defendant, Crystal Faye Smith, appeals from a judgment after she pled no contest to one count of child abuse (Pen. Code,[1] § 273a, subd. (a)) and that in committing the child abuse she inflicted great bodily injury on S.G., who was under the age of five years (§ 12022.7, subd. (d)). Charges defendant had committed mayhem (§ 203) and torture (§ 206) were dismissed as part of the plea negotiation.
Defendant was sentenced to a total of six years which consisted of the lower term of two years for the child abuse charge and four years for the infliction of great bodily injury allegation. Defendant was given a total of 185 days of presentence custody credit consisting of l61 days of actual custody plus 24 days of conduct credit. Defendant was ordered to pay: a restitution fine of $1,200 (§ 1202.4, subd. (b)(1)); a $1,200 parole revocation fine (§ 1202.45); a $40 court security assessment fee (§ 1465.8, subd. (a)(1); and a $30 criminal conviction fee (Gov. Code, § 70373, subd. (a)(1)).

Defendant and appellant Del Rio Sanitarium, Inc., appeals from a judgment following a jury trial in favor of plaintiff and respondent Christina Vasquez in this action for pregnancy discrimination in violation of the Fair Employment and Housing Act (FEHA)(Gov. Code, § 12900 et seq).[1] Del Rio contends: 1) the trial court erred by excluding evidence of Vasquez’s absences from work; 2) the trial court erred by excluding expert testimony on the requirements for medical certification; 3) the trial court erred by excluding certain testimony about expert fees; 4) Del Rio was entitled to judgment as a matter of law, because Vasquez could not perform the essential functions of her job even with accommodation; 5) the award of past economic damages was excessive; 6) the award of future damages failed to account for mitigation; and 7) the amounts awarded for past and future noneconomic damages were inconsistent with the jury’s finding that Vasquez did not suffer severe emotional distress and were not supported by substantial evidence. We find no abuse of discretion in the trial court’s evidentiary rulings, ample evidence to support the finding that Vasquez could perform the essential duties of her job following a temporary job restructuring or transfer to light duty work, and there was sufficient evidence to support the jury’s award of damages. We affirm.

Plaintiff Mark Shehata sued his criminal defense attorney, defendant Dana Cole, for legal malpractice in connection with a criminal proceeding which resulted in a plea of no contest. Defendant demurred based on plaintiff's failure to allege "actual innocence" as shown by postconviction exoneration, a required element of a claim for legal malpractice in a criminal matter. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201.) When plaintiff failed to make an offer of proof in response to the trial court's inquiry, the court sustained the demurrer without leave to amend, and entered a judgment of dismissal. Plaintiff appeals. Finding no error, we affirm.

Defendant and appellant David Martinez (defendant) pleaded guilty to two counts of perjury pursuant to a plea agreement. While on probation, he filed an unsuccessful habeas corpus petition seeking to vacate his conviction on the ground that he was not advised of the adverse immigration consequences of his plea. Thereafter, he filed a nonstatutory motion in the trial court to vacate his conviction on the same ground. The trial court ruled that it lacked jurisdiction to hear that motion and therefore denied it.
On appeal, defendant contends that the trial court had inherent jurisdiction to remedy the violation of his constitutional right to be advised of the immigration consequences of his plea. We hold that the trial court properly denied defendant’s nonstatutory motion to vacate his conviction. We therefore affirm the order from which defendant appeals.