CA Unpub Decisions

Defendant Roger Anthony Bettancourt[1] was convicted by a jury of forcible rape. On appeal, he argues that the judgment must be reversed because the court refused to instruct the jury on the defense of his reasonable but mistaken belief in the victim's consent to sexual intercourse, in accordance with People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry). We find no error and therefore must affirm the judgment.

A modification decision.

Petitioners Raymond C., Carol C., and Andrea C. (collectively, Petitioners), who are coconservators for real party in interest John C.,[1] seek writ relief to prevent the trial court from conducting an evidentiary hearing on a habeas corpus petition the Orange County Public Defender (Public Defender) filed on John’s behalf to obtain his release from Fairview Developmental Center (Fairview). John is a 57-year-old, developmentally disabled adult who has resided at Fairview for more than 47 years due to a series of placements made under the Lanterman Developmental Disabilities Services Act (Lanterman Act; Welf. & Inst. Code, § 4500 et seq.).[2] The Public Defender brought the habeas corpus petition under section 4800 because it contends less restrictive facilities can provide similar care for John and the Lanterman Act mandates placement of developmentally disabled persons in the least restrictive environment capable of meeting their needs. Petitioners contend the Public Defender lacks authority to pursue the habeas corpus petition because they, as John’s legal representatives, believe Fairview is the best placement for John.
We agree the Public Defender lacks authority to pursue the habeas corpus petition on John’s behalf. Supreme Court precedent establishes that the Public Defender may not pursue a section 4800 habeas corpus petition on a developmentally disabled person’s behalf without establishing “‘very exceptional circumstances’” (In re Hop (1981) 29 Cal.3d 82, 86-87 (Hop), original italics) and that other available remedies for challenging the placement are inadequate (In re Gandolfo (1984) 36 Cal.3d 889, 897-900 (Gandolfo)). We conclude very exceptional circumstances are not present in this case and the existing remedies are adequate because John’s Fairview placement has been subject to periodic judicial review for nearly 20 years, a hearing on the next periodic review already was scheduled when the Public Defender filed the habeas corpus petition, and the Public Defender failed to show Petitioners are not acting in John’s best interest.
Although we agree with Petitioners the Public Defender may not pursue its habeas corpus petition, we do not agree with their contention the Lanterman Act’s administrative fair hearing procedures deprive the trial court of jurisdiction to periodically review John’s placement. The fair hearing procedures provide the exclusive means for challenging a specific decision to change John’s placement or the other services he receives, but those procedures do not prevent the trial court from periodically reviewing whether his developmental center placement is still warranted. In Hop, the Supreme Court held that a developmentally disabled person could not be placed in a developmental center under the Lanterman Act without a judicial hearing on whether the person’s disabilities warrant placement in the most restrictive environment available. Because placement in a developmental center constitutes a significant restraint on the developmentally disabled person’s fundamental liberty interests, the Hop court concluded the person’s due process and equal protection rights require a judicial determination regarding the suitability of the placement. As explained below, we conclude Hop’s rationale also requires periodic independent reviews to ensure the developmentally disabled person’s disability continues to warrant placement in a developmental center.
Accordingly, we issue a writ of mandate directing the trial court to (1) enter an order dismissing the habeas corpus petition the Public Defender filed on John’s behalf, and (2) proceed with the Hop review hearing on John’s Fairview placement.

Two-day old Oscar M.[1] was detained at the neonatal intensive care unit of the hospital in which he was born. A Welfare and Institutions Code section 300 petition was filed alleging that Oscar M. and his biological mother, J.S., “tested positive for amphetamines” and that mother admitted to “using methamphetamines for years,” including during her pregnancy. Finally, the petition alleged that Oscar M., Sr., was the presumed father and was incarcerated with a release date of March 9, 2014.[2]
A detention report filed by Stanislaus County Community Services Agency (the Agency) on October 11, 2012, indicated that mother had reported Cherokee and Choctaw ancestry in prior dependency proceedings. The report detailed prior dependency proceedings involving Oscar M.’s sibling. In those proceedings, the court had found that the Indian Child Welfare Act (ICWA) did not apply.
The jurisdiction/disposition report indicates the social worker met with mother on October 11, 2012. Mother advised she would be moving “soon” and her physical and mailing address would be on “Itasca Court.” Mother also reported Choctaw and Cherokee ancestry. She said there were no other possible fathers of Oscar M. other than Oscar M., Sr.
Mother filed a Notification of Mailing Address on October 12, 2012, indicating an address on “ITASCA CT.” The same day, father filed a Parental Notification of Indian Status, which indicated that father had no Indian ancestry as far as he knew.

Pursuant to a plea agreement, appellant, Luis Enrique Alvarez, on April 9, 2012, pleaded no contest to one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5; count 5) and three counts of committing a lewd or lascivious act against a child under the age of 14 (Pen. Code, § 288, subd. (a), counts 6, 8, 9). One of the terms of the plea agreement was that appellant would be sentenced to 22 years in prison. On June 6, 2012, the court imposed the agreed-upon 22-year prison term, calculated as follows: on count 5, the upper term of 16 years, plus two years on each of the remaining counts.
Appellant filed a timely notice of appeal. Insofar as the record reveals, appellant did not request, and the court did not issue, a certificate of probable cause (Pen. Code, § 1237.5).[1]
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We affirm.

Amanda D. appeals a juvenile court order requiring her visitation with her son, Allen P., Jr., (Allen) be supervised. She contends substantial evidence does not support the order. We affirm.

Ricky Don Pirtle appeals after he pleaded guilty to one count of possessing a controlled substance for sale in two separate cases (SCD243096, SCN312679). He received a total term of five years in local custody. He contends, the Attorney General concedes, and we agree that the trial court erroneously calculated his total presentence custody credits by calculating the actual custody credits and conduct credits for his two cases separately, rather than adding the actual custody credits for his two cases together and then calculating his conduct credits based on the aggregate number of actual custody credits.

Plaintiff and appellant Daniel G. Huffman, a former inmate at R.J. Donovan Correctional Facility (Facility), appeals from a judgment entered after the trial court sustained without leave to amend the demurrer of the State of California (the State) to Huffman's first amended complaint. Huffman had sued the State and several "John Doe" correctional officers, alleging in part that he was beaten by the officers and other inmates while housed at Facility, and that the State was vicariously liable for the acts of the individual defendants. In part, the trial court ruled the State was immune from liability under Government Code[1] sections 844.6 and 845.6. On appeal, Huffman contends he could have stated facts sufficient to establish vicarious liability against the State and thus the trial court abused its discretion by sustaining the State's demurrer without leave to amend. He further contends the trial court erred by dismissing sua sponte his "Doe" defendants.

Appellant KB Home Coastal, Inc. (KB) appeals from an order denying its special motion to strike the cross-complaint of respondent CRV Imperial-Worthington, LP (CRV) as a strategic lawsuit against public participation. (Code Civ. Proc.,[1] § 425.16, commonly known as the anti-SLAPP statute.) CRV's cross-complaint alleged that KB, by suing CRV for indemnity and other causes of action, had breached a written settlement agreement between CRV and KB containing a broad mutual release of certain claims.
On appeal, KB contends its motion should have been granted and CRV's cross-complaint stricken because (1) it satisfied its burden to show CRV's cause of action was based upon KB's petitioning activity, putting it under the ambit of the anti-SLAPP statute and (2) CRV failed to produce admissible evidence to support its cause of action for breach of contract and therefore did not meet its burden of establishing a probability of prevailing on the merits of that claim. We agree that CRV has not met its burden to establish a probability of prevailing on the merits of its breach of contract cross-complaint, and therefore reverse.

After a bench trial at which documentary evidence only was presented, the trial court convicted defendant Shawn Michael Majewski of seven counts of second degree burglary ( "Pen. Code, § 459" Pen. Code, § 459; counts 1, 2, 3, 5, 6, 13, 14)[1] and three counts of petty theft, a misdemeanor ( "§ 488" § 488; counts 4, 7, 8), and found a strike prior ( "§ 1170.12" § 1170.12) to be true.
Sentenced to state prison, defendant appeals. He contends (1) insufficient evidence supports his conviction on counts 5, 6, 7, 8, and 13; and (2) the single larceny doctrine applies to bar his conviction on count 7 or 8. We reject defendant’s contentions and will affirm the judgment.

Mother, Sabrina B., appeals from the juvenile court’s order that denied her request for in-home visitation with minor Zachary B. and maintained existing visitation orders. (Welf. & Inst. Code, § 395.)[1] We affirm.

In a story that is becoming all too familiar, rival gang members clashed over their perceived territory, words quickly escalated to gunfire, two young men are now dead, and a third was seriously wounded. Isidro Cedillo and Rigoberto Aguirre were killed, and Isidro’s twin brother, Victor Cedillo, was shot multiple times. The confrontation began when the aggressor gang members hurled verbal threats outside the Cedillos’ home. When the three young men came out of their home to confront the aggressors, one of the aggressors began shooting with a semiautomatic handgun, hitting all three of their perceived rivals, and killing two of them in front of their home.

In a fit of road rage, defendant Jesse Kenneth Oran merged into a freeway lane already occupied by Tessa Canavarro, causing a collision that killed Canavarro. Convicted of vehicular manslaughter with gross negligence, defendant appeals. He contends: (1) the evidence was insufficient to sustain a finding that he was grossly negligent, (2) the jury instructions may have allowed the jury to convict defendant of vehicular manslaughter on a factually irrelevant theory, (3) there was insufficient evidence to support the booking and classification fees imposed, and (4) the trial court unlawfully imposed two restitution fines under Penal Code section 1202.4.
We find no merit in defendant’s contentions. However, we conclude that the trial court imposed an unauthorized sentence by imposing a Penal Code section 1202.45 restitution fine that was not equal to the Penal Code section 1202.4 restitution fine, as required by law. We therefore modify the Penal Code section 1202.45 restitution fine and affirm the judgment as modified.

In this unprovoked and random drive-by shooting with a semiautomatic handgun, the two teenage defendants both testified that the other one was the shooter. A jury convicted 17-year-old Denzel Demar Crisp, the passenger, of discharging a firearm from a motor vehicle and assault with a semiautomatic firearm, but failed to reach a verdict on the attempted murder charge. The related gun and great bodily injury enhancements were found to be true. Eighteen-year-old Steven Brown, Jr., the driver, was convicted of assault with a semiautomatic firearm, knowingly permitting another person to discharge a firearm from his vehicle, and carrying a concealed firearm. The related firearm enhancement was also found to be true.
Neither boy had a prior record. Whereas the trial court sentenced Crisp to state prison for an aggregate term of 30 years to life, it sentenced Brown to seven years eight months. On appeal, defendants challenge several jury instructions, the sufficiency of the evidence, and, in Crisp’s case, the constitutionality of his sentence. We affirm.