CA Unpub Decisions

Appellant, A.F., appeals from the juvenile courts order denying his petition pursuant to Welfare and Institutions Code section 388 to modify the courts prior order denying him reunification services for his children, A.M.F. and G.F. The court terminated appellants parental rights to his children pursuant to section 366.26. Appellant contends he demonstrated changed circumstances, it was the mothers drug abuse that caused the dependency, and that he had an extraordinary parental bond with his children. Court reject these contentions and will affirm the juvenile courts judgment.

Defendant Justin Norman Lavoie appeals from his conviction for two counts of attempted robbery. He claims there was insufficient evidence of his intent to permanently deprive the victims of the property or its beneficial use. He further claims the jury was improperly instructed, he received ineffective counsel, and cumulative error. Finding that none of these claims have any merit, Court affirm.

Anton Robert Kareem Naimat (Anton) was convicted by a jury of first degree murder and being a felon in possession of a firearm. The jury found true an alleged firearm enhancement associated with the murder, and in a separate proceeding, the trial court found true an allegation Anton had served a prior prison term. Tassawur Sonny Naimat (Sonny) was convicted of being an accessory after the fact to the murder. The court sentenced Anton to a total term of 53 years to life: 25 years to life for murder, a consecutive 25 years to life for the firearm enhancement, a consecutive two-year term for felon in possession of a firearm, and a consecutive one year term for the prior prison term enhancement. The court suspended imposition of Sonnys sentence and placed him on formal probation for five years.
Court find the court erred in granting Anton pretrial custody credit and modify the judgment to correct this error. In all other respects, the judgment is affirmed.

Victor Alex Turek was convicted of six counts of committing a lewd act upon a child under the age of 14 (Pen. Code, 288, subd. (a)), and one count of committing a lewd act upon a child who was 14 years of age and 10 years younger than the defendant (Pen. Code, 288, subd. (c)(1)). He was sentenced to a total term of 12 years and 8 months in prison. On appeal, Turek argues the erroneous admission of his custodial statements requires the judgment to be reversed. Court reject his contention and affirm his conviction.

Defendant Janene Kathleen Johns challenges her conviction for gross vehicular manslaughter while intoxicated. She contends the court violated her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) by admitting into evidence two sets of her incriminating statements. She further contends the court erred by barring her from examining a witness as to his possible bias.
Court affirm. Defendant was not in custody when she made her first set of incriminating statements. She impliedly waived her Miranda rights before making her second set of statements. And while the court should have allowed defendant to examine the witness as to his possible bias, the error was not prejudicial.

Defendants Gate Three Healthcare LLC, The Flagstone Group, Inc., The Ensign Group, Inc., and Ensign Facility Services, Inc. appeal from an order denying their petition to compel arbitration of causes of action for elder abuse and battery in the complaint filed by plaintiffs Mark S. Iannucci and Michael C. Iannucci (Michael) after the death of their mother. Defendants claim a power of attorney making Michael the agent in fact for mother authorized him to sign an arbitration agreement covering these claims. Court agree and reverse.

In 1999, petitioner John Semeneck was adjudicated a sexually violent predator (SVP) under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).[1] In 2001, he admitted the allegations of a recommitment petition, and, in 2003, was again ordered recommitted for another two‑year term. He is in confinement within the custody of the California Department of Mental Health (DMH).
Semenecks petition for writ of habeas corpus alleges his commitment as an SVP was unlawful because the evaluations under section 6601, subdivision (a) that led to the commitment petition in 1999 and recommitment petitions in 2001 and 2003 were conducted in accordance with a standardized assessment protocol determined by the Office of Administrative Law (OAL) in 2008 to constitute an invalid underground regulation. Semeneck argues he should be re evaluated using the current approved legal standards to determine if his commitment was correct. Court conclude Semenecks petition for writ of habeas corpus was timely, but deny his petition on the merits. Semeneck forfeited any challenge to the assessment protocol or protocols used for the evaluations leading to his 1999 commitment and 2001 recommitment by admitting the allegations of the 2001 SVPA recommitment petition. Semeneck fails to present evidence he was deprived of a fair trial or otherwise suffered prejudice from use of the assessment protocol leading to his 2003 recommitment.

A modification decision.

A jury convicted defendant of assault with a deadly weapon and found that he committed that offense for the benefit of a criminal street gang. (Pen. Code, 245, subd. (a)(1), 186.22, subd. (b)(1)(B).)[1] Defendant admitted that he had previously suffered a prior conviction that qualified as a serious felony and as a strike. ( 667, subd. (a), 667, subds. (b)-(i), 1170.12.) The court sentenced defendant to 16 years in state prison. On appeal, defendant argues that the trial courts ruling excluding defense-proffered evidence of police misconduct was error under Evidence Code section 352 and also infringed upon his federal constitutional rights. He also argues that the prosecutor committed misconduct during closing argument. Court will affirm.

This appeal arises out of an internecine dispute involving, among other matters, the allegedly improper approval of an increase in membership dues for the Santa Clara County Correctional Peace Officers Association, Inc. (CPOA), and the allegedly improper removal of CPOAs duly elected treasurer, Edward J. Meyers. Appellants[1] filed a complaint in the Santa Clara County Superior Court against various CPOA officers and members of its board of directors, as well as CPOAs attorney, and the matter was ordered to arbitration as required by the CPOA bylaws.
This appeal is taken from an order denying appellants motion to tax costs of $5,218.60. Appellants argue that, under Code of Civil Procedure section 1293.2,[3] the trial court could only have awarded costs incurred in association with confirming the arbitration award, rather than all costs incurred in the underlying litigation. Appellants also contend that the memorandum of costs was untimely. We find that respondents memorandum of costs was timely, but agree that the trial court erred in allowing costs other than those incurred in arbitration related judicial proceedings. Accordingly, Court shall reverse and remand.

Defendant John Vallejo was convicted by jury of one count of grand theft from his employer (Pen. Code, 484-487, subd. (b)(3))[1] and one count of second degree burglary ( 459-460, subd. (b)). The court suspended imposition of sentence and granted probation subject to various conditions, including the condition that defendant serve six months in county jail. The court also ordered defendant to pay $2,011.48 in victim restitution to his employer, Starbucks Coffee (Starbucks), and attorney fees of $750 to the county for his defense. Court conclude that there was insufficient evidence to support the attorney fees order and strike that order. We find no other error and affirm the order granting probation as so modified.

Shortly before entering a plea of no contest to a charge of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), appellant Jesse Duarte waived his right to a jury trial regarding a prior conviction allegation. On September 29, 2008, a court trial was held to determine whether the prior conviction allegation was true and whether it constituted a strike for purposes of the three strikes law. (Pen. Code, 667, subds. (b)-(i), 1170.12.) At the conclusion of the court trial, the court found true the prior strike conviction allegation and sentenced appellant. However, the court reduced appellant's current Penal Code section 245 conviction to a misdemeanor and placed appellant on probation on the condition that he serve 155 days in county jail. When the court reduced appellant's current conviction to a misdemeanor the court noted that it had struck "the strike because of the nature of the current offense." Appellant filed a notice of appeal on September 30, 2008. On July 28, 2009, Court denied the Attorney General's motion to dismiss the appeal, and extended the time for the Attorney General to file a brief. In that brief, the Attorney General reiterates that the appeal should be dismissed. For reasons that follow, Court agree with the Attorney General and dismiss this appeal as moot.

We appointed counsel to represent Martinez in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. Court notified Martinez of his right to submit written argument in his own behalf within 30 days. That period has elapsed, and Court have received no written argument from Martinez. As Martinez pleaded no contest, Court derive the facts from the probation report and other documents in the record on appeal.

Pursuant to a negotiated disposition, defendant Brett Darren Wetterlin pleaded no contest to driving under the influence of alcohol with a blood alcohol level of 0.08 percent, providing a false name to a peace officer, and driving while unlicensed. The trial court placed defendant on probation conditioned upon a one-year jail term. It awarded defendant 33 days actual custody credits for presentence time spent in a residential treatment facility. It later denied defendants motion to instead award credit for 359 days. On appeal from the judgment, defendant contends that the trial court erred by denying his motion for the additional credits. Court disagree and affirm the judgment.