CA Unpub Decisions

John Kolov (defendant) appeals an October 27, 2006 order extending his involuntary civil commitment as a mentally disordered offender (MDO), pursuant to Penal Code sections 2970 and 2972. He contends the order must be reversed because: (1) in violation of his federal due process rights, the jury instructions tracking the statutory language did not inform the jury, and it did not necessarily find, that defendants mental disorder caused serious difficulty in controlling his behavior; and (2) the prosecutor committed prejudicial misconduct.

In this appeal from the denial of appellants request for a declaration of paternity and visitation rights with the minor Emilee,[1]he claims that a prior judgment which declared his status as the biological father of the minor must be given binding, conclusive effect in this dependency proceeding to grant him visitation rights with the minor. He also claims that a violation of the Indian Child Welfare Act (25 U.S.C. 1901 et seq., hereafter the ICWA) occurred. We conclude the judgment that declared appellant to be the biological father of Emilee does not rebut the presumption of paternity in Shawn, the step-father of the minor, and does not entitle appellant to visitation rights in this proceeding. Court also find no violation of the ICWA. Court therefore affirm the judgment.

Manuel S. appeals from an order terminating his parental rights as to Raymundo S. (born in February 2000). Appellant contends he established a parent child relationship with Raymundo such that termination of his relationship would be greatly detrimental to Raymundo under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A). He further contends that the court violated his due process rights by refusing to permit six year old Raymundo to testify at the termination hearing. Court find no error and affirm.

Appellant Jonathan Elbaz (Elbaz), by and through Betty Elbaz, as guardian ad litem, appeals from a trial court order sustaining the demurrer of respondent Beverly Hills Unified School District (BHUSD) to Elbazs first amended complaint. We conclude that two of Elbazs claims against BHUSD are barred pursuant to Education Code section 35330, and his third claim cannot proceed pursuant to section 32050. Accordingly, Court affirm.

Rebecca M. (mother) and Andreas H. (father) seek writ review of an order setting a hearing under Welfare and Institutions Code section 366.26 with respect to their two children, Andreas H. and Jasmine H. Mother and father contend there was insufficient evidence before the juvenile court to warrant the denial of family reunification services under section 361.5, subdivision (b)(2). Court reject this contention and deny the writ petitions.

In 2005, Moore was convicted of committing a battery upon a police officer. ( 243, subdivision (c)(2).) The Los Angeles County Superior Court sentenced him to 16 months' imprisonment. On October 30, 2006, the Board of Prison Terms determined that Moore was an MDO pursuant to the criteria of section 2962. As a condition of parole, it required him to accept treatment from the Department of Mental Health. Moore filed a petition pursuant to section 2966, subdivision (b), to contest the decision. He waived his right to a jury trial, and a court trial followed.
At trial, the court received testimony and written reports from four mental health experts. Three of the experts opined that Moore met the criteria of section 2962. Moore also testified. At the conclusion of the trial, the court concluded that Moore met the MDO criteria of section 2962. Court have reviewed the entire record and are satisfied that Moore's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende(1979) 25 Cal.3d 436, 441.) The order is affirmed.

Petitioner James M. seeks extraordinary writ relief from the juvenile courts order setting a hearing pursuant to section 366.26 to consider termination of parental rights and implementation of a permanent plan for his three dependent children, Haylee M., April M. and Gabriel M. James M.s petition is opposed by the Department and also by the three children, who have filed a joinder in the Departments response. Court deny the petition.

November 2004, Justin M., a minor, admitted both a charge of conspiracy to commit felony assault (Pen. Code, 182, subd. (a)(1) & 245, subd. (a)(1)) and a criminal street gang enhancement (Pen. Code, 186.22, subd. (b)(1)), charges which arose out of the fatal shooting of 15 year old Mario Vidal on August 5, 2004. The minor was committed to the California Youth Authority and, inter alia, ordered to pay restitution jointly and
severally with six other minors in the amounts of $19,617.83 to Michelle Brooks, the victims mother; $5,681.76 to Gary Brooks, the victims stepfather; $16,030.56 to Mario Vidal, Sr., the victims biological father; and $5,350 to the Victim Compensation Fund.
On appeal, the minor contends that the award to the victims stepfather is unauthorized. Court agree and modify the order.

When sued by a business associate, Donald Troppmann and New Beginnings International, Inc. (NBI), filed a cross-complaint for legal malpractice against the estate of Michael Flaherty, the attorney who had prepared the business agreement. (For ease of discussion, we refer to the estate as Flaherty and refer to the cross-complainants collectively as Troppmann/NBI, and individually as Troppmann and NBI.)
Flaherty moved for nonsuit, asserting the statute of limitations had run before Troppmann/NBI filed their cross complaint for malpractice. The trial court rejected this contention, rejected the tendered defense of unclean hands, and entered judgment in favor of Troppmann/NBI for $214,372.59. The court also awarded attorney fees to Troppmann/NBI. On appeal, Flaherty contends (1) the statute of limitations barred Troppmann/NBIs claim for malpractice, (2) there is no evidence to support a judgment in favor of Troppmann, (3) the doctrine of unclean hands precludes recovery, and (4) no award of attorney fees should have been made. Court agree only that Troppmann is not entitled to judgment. Court therefore reverse the judgment as to Troppmann individually and modify the award of attorney fees to reflect an award to NBI only. In all other respects, the judgment is affirmed.

A modification decision.

A jury convicted defendant John Joseph Silva of grand theft (Pen. Code, 487, subd. (a); undesignated section references are to the Penal Code). In exchange for defendants waiver of his jury trial right on the strike priors ( 667, subds. (b)-(i), 1170.12), one strike prior was dismissed on the prosecutors motion. The court found the other strike prior to be true.
Sentenced to state prison, defendant appeals, contending (1) the trial court erroneously ruled with respect to certain evidence and without such, the evidence supports petty theft, not grand theft, or in the alternative, counsel rendered ineffective assistance in failing to challenge the valuation evidence, (2) the trial court abused its discretion and violated defendants constitutional right to present a defense in excluding certain evidence, (3) the trial court failed to instruct sua sponte in the language of CALJIC No. 14.27 (grand and petty theft - owners opinion of value), or in the alternative, counsel rendered ineffective assistance in failing to request it, (4) the trial court erroneously denied his motion for a new trial and (5) the minute order and abstract of judgment require correction to reflect the oral pronouncement of judgment. Court agree the minute order and abstract of judgment require correction. Court reject defendants remaining contentions and affirm.

Plaintiff Winfried Stevenson filed a complaint against his employer, defendant California Security Consultants, Inc., for alleged nonpayment of overtime compensation. He sought to certify his lawsuit as a class action but the trial court denied that motion. Plaintiff appeals, challenging both this ruling and a related discovery matter. Court conclude that the court erred in ruling that there was an insufficient community of interest among the security guards who worked for defendant to warrant class certification. This conclusion compels reversal, obviating the need to resolve the discovery issue.

A jury convicted defendant Phillip Michael Tafoya of two counts of forcible rape (Pen. Code, 261, subd. (a)(2); hereafter, undesignated section references are to the Penal Code), one count of kidnapping ( 207, subd. (a)), one count of digital penetration ( 289, subd. (g)), three counts of false imprisonment ( 236), four counts of rape by threat of authority ( 261, subd. (a)(7)), and one count of petty theft ( 484, subd. (a)). Defendant was sentenced to a prison term of 47 years eight months to life. On appeal, defendant contends: (1) his conviction for rape by threat of authority against Krystal L. (count nineteen) was not based on sufficient evidence; (2) his convictions for felony false imprisonment were not based on sufficient evidence; and (3) the trial court erred in sentencing him to two consecutive terms of 15 years to life under section 667.61. Court affirm the judgment but ensure the correction of two clerical errors in the abstract of judgment.Defendants convictions arose out of several incidents involving five different women, four of whom admitted to having been working as prostitutes when defendant raped them. Court set out the pertinent facts as we address each issue.

Following the denial of his motion to suppress evidence found during a probation search, defendant Ronald Gene Livingood pleaded no contest to being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)), admitted a prior conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12), and was sentenced to 32 months in state prison, consisting of the lower term of 16 months, doubled for the strike prior. Defendant appeals the denial of his motion to suppress. Court affirm.