CA Unpub Decisions

The juvenile court terminated N.M. (mother) and presumed father John C.’s (father) parental rights as to N.C. (daughter) after a Welfare and Institutions Code section 366.26 permanency hearing (.26 hearing).[1] Mother and father appeal. Mother contends: (1) the notices sent pursuant to the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq. (ICWA)) were deficient; (2) the court erred by denying her People v. Marsden (1970) 2 Cal.3d 118 (Marsden) motion; and (3) the court erred by declining to apply the beneficial parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). Father also appeals, claiming the ICWA notices were deficient and the Sonoma County Human Services Department (Department) failed to inquire about his “possible Indian ancestry.”[2] Court affirm.

On April 11, 2012, two unidentified men were seen on video monitors committing a burglary at an Autodesk building in San Rafael. Police officers responded and saw a sedan with four men leaving the scene about 2:00 a.m. The car sped away and the police pursued, but lost sight of the car. At 3:30 a.m., a police officer observed a car turn the wrong way onto a one-way street and commenced a pursuit of the vehicle, which entered Highway 101 in the southbound lanes. During the pursuit, the car made a U-turn on the freeway, threatening a head-on collision with one of the pursuing police vehicles. The car went off the roadway into a muddy ditch. Oges Roberson, in muddy pants and shoes, was arrested nearby. Two other men, similarly muddy, were also apprehended. The car was a rental vehicle for which Roberson was an authorized driver. It contained items that had been taken from Autodesk, as well as some of Roberson’s personal papers.
Roberson was tried by a jury, which found him guilty of commercial burglary (Pen. Code, § 459),[1] receiving stolen property (§ 496, subd. (a)), and evasion of a peace officer with willful or wanton disregard for the safety of other persons or property (Veh. Code, § 2800.2, subd. (a)).

Appellant Daniel Paul Jones was convicted after a jury trial of several counts relating to his possession of illegal drugs and firearms. On appeal, he argues (1) the trial court erred in denying his pretrial motion to represent himself, (2) a jury instruction regarding flight was impermissibly argumentative, (3) a jury finding that certain firearms were “loaded” was not supported by substantial evidence, (4) a jury instruction regarding knowledge was contrary to law, (5) the trial court erroneously admitted certain expert opinion testimony, (6) the trial court erred in denying appellant’s request for appointed counsel at sentencing, and (7) the trial court erred in failing to award appellant any presentence custody credit. We agree solely with appellant’s last contention and modify the judgment accordingly. We otherwise affirm.

Defendant First Republic Bank (the Bank) appeals from an order denying its motion to compel arbitration of an employment dispute with plaintiff John Edwards. An arbitration agreement may be unenforceable if it is both procedurally and substantively unconscionable. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz).) The trial court found that the agreement here is substantively unconscionable because the Bank can modify it at any time. As Division One of this Appellate District recently observed in a case presenting the same issues as those raised here (Peng v. First Republic Bank (2013 219 Cal.App.4th 1462, 1473-1474 (Peng)), the trial court’s finding of substantive unconscionability was contrary to our holding in 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214 (24 Hour Fitness). Like the court in Peng, we adhere to the reasoning expressed in 24 Hour Fitness and the cases that have followed it, and conclude that the Bank’s arbitration agreement is not substantively unconscionable. We therefore reverse the order denying the motion to compel arbitration.

Lonnie Ratliff, Jr., (appellant), in propria persona, appeals from judgments entered after the trial court sustained EMC Mortgage’s (EMC) demurrer without leave to amend, sustained Robert J. Jackson, Esq., and Robert J. Jackson and Associates’s (together, the Jacksons) demurrer without leave to amend, and granted the Jacksons’s special motion to strike under Code of Civil Procedure section 425.16. Appellant contends the trial court erred in ruling that: (1) the doctrine of res judicata barred his claims against EMC; and (2) he failed to state a valid cause of action against the Jacksons. We reject the contentions and affirm the judgments.

Following a court trial, the court found true beyond a reasonable doubt that defendant James Ryan was a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (See Welf. & Inst. Code, § 6600 et seq.)[1] By order filed May 30, 2012, the court ordered him committed for an indeterminate term to the custody of the California Department of Mental Health (now, State Department of State Hospitals; hereafter the Department). The order specified that it was “subject to the ultimate decision in People v. McKee (2010) 47 Cal.4th 1172” (McKee I). On November 9, 2012, after the California Supreme Court denied review in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), the trial court filed an order committing defendant for an indeterminate term “as previously ordered.”
On appeal, defendant argues (1) that he was not evaluated with a valid “standardized assessment protocol” as mandated by section 6601, subdivision (c) and thus, that the subsequent commitment proceedings violated due process, and (2) that the SVPA’s indeterminate commitment violates principles of equal protection. We conclude that neither of defendant’s claims is meritorious, and we will therefore affirm the judgment.

Steven Williams pleaded no contest to a felony violation of former Penal Code section 245, subdivision (a)(1), assault by means of force likely to produce great bodily injury. The incident apparently occurred outside a San Jose club or bar. The trial court granted probation on specified terms and conditions. On appeal, defendant Williams challenges only the following probation condition: "You shall not have any contact with [the named victim]."
Defendant Williams argues that the probation condition is unconstitutional on its face because it lacks an express knowledge requirement. Defendant suggests that he might not recognize the victim and unknowingly have contact with the victim by, for example, accidently bumping into the victim on the street.[1] He also hypothesizes that the victim might seek contact with him.
The People do not agree that a knowledge requirement must be added. They also urge this court to adopt the approach taken by the Third District Court of Appeal in People v. Patel (2011) 196 Cal.App.4th 956. They suggest that, like the Third District, this District should automatically imply a knowledge requirement in every probation condition and, thereby, eliminate the need for explicit modification. In Patel, the appellate court announced that henceforth it would "construe every probation condition proscribing a probationer's presence, possession, association, or similar action to require the action be undertaken knowingly" and it would "no longer be necessary to seek a modification of a probation order that fails to expressly include such a scienter requirement." (Id. at pp. 960-961, fn. omitted.)
We find it unnecessary to expressly add a knowledge requirement to the challenged probation condition or to imply such a requirement. "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. (People v. Reinertson (1986) 178 Cal.App.3d at pp. 324-325 . . . .)" (In re Sheena K. (2007) 40 Cal.4th 875, 890.)

A jury convicted defendant Henry Torres Venegas of possession of heroin for sale, possession of a firearm while under the influence, possession of ammunition by a prohibited person, possession of a firearm by a felon, carrying a concealed firearm, possession of controlled substances while armed with a loaded firearm, and a prior felony conviction for carrying a loaded firearm. (Health & Saf. Code, §§ 11351, 11550, subd. (e), 11370.1; Pen. Code, §§ 12316, subd. (b), 12021, subd. (a)(1), 12025, subd. (a)(2), 12031, subd. (a)(1).)[1] The jury also found true a weight enhancement as to the heroin, and an allegation defendant was personally armed during the offense. (§§ 1203.07, subd. (a)(1), 12022, subd. (c).) The trial court imposed a term of six years and eight months in state prison.
On appeal, defendant argues: (1) the trial court erred in denying his motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); (2) defense counsel provided ineffective assistance by failing to renew the Pitchess motion; and (3) the court erred in denying his motion for substitution of counsel. Finding no error, we will affirm.

Appellants Gerald K. Fehr and Teresa K. Fehr, individually and as trustees of the Fehr Revocable Trust dated April 30, 1991, (Fehrs) and respondents David Keenan and Jaeohk C. Keenan (Keenans), own adjacent property in a residential subdivision located in the City of Watsonville. The Fehrs brought an action against the Keenans, which sought to quiet title to an alleged appurtenant easement, a six-foot wide strip between their properties, on various theories and for declaratory and injunctive relief. Following a court trial, the court determined that "[n]o implied, express, or prescriptive easement exists in favor of the Fehrs."
On appeal, the Fehrs claim that, as a matter of law, their property has an implied easement and an express easement over a six-foot-wide walk that was created by the 1912 recordation of a subdivision map and continued by subsequent conveyances of the property. They also assert that they satisfied all the elements necessary to establish a prescriptive easement appurtenant to their property. Finally, the Fehrs maintain that the Keenans lack standing to challenge the Fehrs' easement over the walkway and their use of the walkway because "the State of California is the true legal and equitable owner of the Walkway arising from the July 1963 property tax foreclosure of the reserved areas adjacent to Gonazales Park as shown in the Subdivision Map, including the Walkway . . . ."
Since the Fehrs failed to provide this court with a record adequate to evaluate their contentions, we cannot conclude that there was reversible error.

J.T., who was born in September 1999, was taken into protective custody when his father, A.T. (Father), was arrested on charges he sexually abused J.T.’s half sister, D.U. J.T.’s mother, M.U. (Mother), successfully completed a case plan, and, following a hearing under Welfare and Institutions Code section 364[1] (further code references are to the Welfare and Institutions Code), the juvenile court terminated dependency proceedings. Pursuant to section 362.4, the court issued final custody orders, giving Mother full legal and physical custody of J.T. and denying Father visitation rights.
Father challenges the final custody order denying him any right of visitation with J.T.[2] We conclude the juvenile court did not err by denying Father visitation rights, and therefore affirm.

Back in 2008, John Turpin was involved in two investment real estate purchases, with two separate partners. One purchase was of a house in Sunset Beach with Kenneth Fuller. The other purchase was of a lot in Corona Del Mar with Dan Neyenhuis. But the house purchase in Sunset Beach was never consummated. Instead, Turpin forged Fuller’s signature on instructions to abort the escrow and had $750,000 of borrowed money already placed in the escrow disbursed to himself. Turpin never paid back the money taken from the escrow, which left Fuller obligated to the lender.
By contrast, the Corona lot purchase was completed, in part because Turpin managed to come up with his $265,000 half of the $530,000 down payment: He directly contributed $102,000, plus he arranged to borrow another $163,000. Neyenhuis was good for his own $265,000 share of the down payment, so the deal went through. Even so, Neyenhuis and Turpin both lost money when the property was later sold for a loss in 2010.

A jury convicted defendant Edgar Jesus Farias of second degree vehicle burglary (Pen. Code, §§ 459-460, subd. (b), count 1; all further statutory references are to this code unless otherwise indicated) and street terrorism (§ 186.22, subd. (a), count 3.) It further found he committed the burglary to promote, further, or assist criminal street gang activity (§ 186.22, subd. (b)(1)). The court sentenced him to state prison for three years and four months (16 months on for the burglary and two years consecutively for the gang enhancement).
Defendant’s appeal raises three issues: (1) the evidence fails to support the vehicle burglary conviction because there was insufficient evidence the vehicle was locked; (2) the court erred in admitting evidence that defendant’s companion in committing the crimes was carrying a gun; and (3) insufficient evidence supports the gang charge or the gang enhancement. We disagree with his contentions and affirm the judgment.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and In re Kevin S. (2003) 113 Cal.App.4th 97 (Kevin S.). Having reviewed the record as required by Wende and Kevin S., we 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.)
On May 24, 2012, a juvenile wardship petition was filed alleging that Guillermo P., the minor, then age 12, came within the provisions of Welfare and Institutions Code section 602, subdivision (a), in that, on or about May 22, 2012, the minor violated Penal Code section 286, subdivision (c)(2), sodomy by use of force.
The incident at issue involved the minor and R.F., age 14, both students in middle school, during the early part of 2012. They were introduced to each other by R.F.’s younger sister. The two communicated with each other through Facebook and then considered themselves “boyfriend” and “girlfriend,” which, according to the minor, meant that they spent time together during breaks at school. According to R.F., they “broke up” within 3 or 4 weeks because R.F.’s friends did not like the minor, although the minor wanted to continue the relationship.
While the two were “dating,” the minor told R.F.’s younger sister several times that he wanted to “fuck” R.F. R.F. did not believe her sister, saying the minor would never do that. But R.F. also testified that the minor had told her he wanted to have sex with her at his house and R.F. would tell him “no.”

A jury convicted appellant, Valois Madera, Jr., of two counts of assault by means of force likely to produce great bodily harm (counts 1 & 2/Pen. Code, § 245, subd. (a)(1)),[1] and one count each of battery resulting in serious bodily injury (count 3/§ 243, subd. (d)), and dissuading a witness from reporting a crime (count 4/§ 136.1, subd. (b)(1)). The jury also found true a great bodily enhancement (§ 12022.7, subd. (a)) in count 1.[2] In a separate proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)), two prior prison term enhancements (§ 667.5, subd. (b)), and allegations that appellant had a prior conviction within the meaning of the three strikes law. (§ 667, subds. (b)-(i).)
On appeal, Madera contends: 1) the evidence is insufficient to sustain his conviction in count 3 for battery resulting in serious bodily injury; 2) the court committed instructional error; and 3) the court erred by its failure to strike one of the prior prison term enhancements. We will find merit to this last contention and will strike the enhancement at issue. In all other respects, we will affirm.