CA Unpub Decisions

Appellants Micah Anthony Smith (Smith) and Clyde Bailey (Bailey) appeal from their judgments of conviction. Appellants raise a number of issues on appeal relating to their convictions and sentences. We affirm the convictions, but find certain sentencing errors.

D. M. appeals from an order declaring him a ward of the juvenile court and placing him on probation in his mother’s home. His counsel raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was apprised of his right to file a supplemental brief but did not do so.
On November 13, 2007, a Welfare and Institutions Code[1] section 602 petition was filed charging defendant, then age 13, with attempted second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) & 664). The charges stemmed from an incident in which defendant and two co-participants attempted to take an iPod from a 13-year-old boy. The court adjudged defendant a ward of the court and placed him on home supervision.

Acme Steel, insured by Sentry Claims Service and Zurich North America, (Acme), petitions for a writ of review (see Lab. Code, §§ 5950, 5952;[1] Cal. Rules of Court, rule 8.495), contending the Workers’ Compensation Appeals Board (WCAB) erred by awarding respondent Michael Borman 100 percent permanent disability without apportionment for prior hearing loss. We will grant the petition.

B.M. (Mother) appeals orders of the juvenile court denying her Welfare and Institutions Code[1] section 388 petitions and orders terminating her parental rights to her two daughters, A.L. and V.S.[2]
A section 300 petition was filed as to then five-year-old A.L. in July 2011. Mother waived reunification services as to A.L., and in November 2011, the juvenile court terminated reunification services and ordered a permanency planning hearing pursuant to section 366.26 (.26 hearing). The court advised Mother that she needed to file a petition for an extraordinary writ in order to seek appellate review of the order setting the .26 hearing. The record contains no indication that Mother filed a writ petition.

This appeal arises from an occupancy dispute over a cabin in Mendocino County owned by appellant Morris Kaplan.[1] The trial court found that occupancy of the cabin by Michael Adams and Katherine Sontag (collectively Plaintiffs) constituted a tenancy at will and that Kaplan failed to provide Plaintiffs a 30-day notice of his intent to terminate the tenancy as required by Civil Code section 789. The trial court awarded “nominal” damages in the amount of $250 and the costs of suit in an amount subject to proof. Kaplan, appearing in propria persona, contends that an award of damages in any amount was error because, inter alia, the occupancy was not a tenancy at will and Plaintiffs had acted with unclean hands. We find that Kaplan has forfeited any argument that the trial court’s findings are unsupported by substantial evidence, and that the trial court did not err in rejecting Kaplan’s equitable defense, but we conclude that $250 is in excess of the amount that can legally constitute nominal damages. We will modify the judgment accordingly, but otherwise affirm.

A modification decision.

Walter Watson appeals from the judgment of the trial court, following a jury trial, committing him to the custody of the Department of Mental Health (DMH), pursuant to provisions of the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code sections 6600 et seq.[1]
Watson contends that the trial court committed prejudicial error by instructing the jury with a pinpoint instruction, at the People’s request, concerning the definition of a “diagnosed medical condition.” We conclude that while it was error to instruct the jury with the challenged instruction, such error was harmless.
Watson also contends that the SVPA violates a number of his constitutional rights. We reject Watson’s constitutional challenges to the SVPA because prior cases have already dealt with these challenges and rejected them.
We affirm the judgment of the trial court.

Ronnie Rodgers was charged with attempted murder, assault with a deadly weapon, and making criminal threats after attacking a hotel manager with a pair of scissors. The jury heard evidence of four prior stabbing incidents by Rodgers, with consideration of the evidence limited to the issue of whether Rodgers acted with the intent to kill in the current assault. The jury acquitted Rodgers of attempted murder, but convicted her of the other charges. Rodgers argues the limiting instruction given to the jury improperly allowed the jury to consider the prior bad acts evidence with respect to the criminal threats charge. We disagree and affirm.

Ana C. (mother) appeals from an order terminating reunification services and setting a selection and implementation hearing (Welf. & Inst. Code, § 366.26)[1] for her sons, five-year-old A.C. and two-year-old L.H. She also appeals from an order denying her petition for modification pursuant to section 388. She contends: (1) the juvenile court abused its discretion when it denied her motion to continue the section 388 and section 366.26 hearing, and (2) there was insufficient evidence to support the finding that A.C. and L.H. were adoptable. We find no error and affirm.

In this appeal, Malia Soto (appellant) contends that a statutory amendment to Penal Code section 4019, which provides for earning presentence conduct credits at the rate of one day for every actual day served, must be applied to her, even though she committed her crimes before the operative date of the amendment. In addition, appellant contends that the lower court erred in imposing a probation revocation fine (§ 1202.44)[1] that exceeded the restitution fine (§ 1202.4, subd. (b)) the court had imposed. For reasons that follow, we agree that the probation revocation fine must be reduced, but disagree that appellant is entitled to the increased custody credits she seeks.

Appellant Kwong Hiu Yung appeals from an order dismissing his action with prejudice after the trial court granted the motion by respondents Yodle, Inc. and Administaff Companies II, LP for terminating sanctions and declaring him a vexatious litigant. We find no error and affirm.

This appeal concerns a trust amendment and certain other documents executed by Helen Campbell (Helen), the now deceased mother of defendants Dennis Campbell and Doreen McAlister and plaintiffs James F. Campbell, Lawrence S. Campbell, and Laurinda Claus. The parties were originally coequal beneficiaries of a trust executed by Helen and her husband James W. Campbell (father). After father died and Helen was mentally and physically impaired, and while Dennis was a cotrustee, defendants impinged on Helen to amend her trust to give ownership of her home to defendants, to execute a promissory note for $65,000 secured by a trust deed on the home in favor of Dennis, and to execute a 10-year lease with defendants allowing them to live in the house rent free until Helen’s death. Plaintiffs petitioned to invalidate all these documents (the 2010 documents) and to remove Dennis as a cotrustee. The court granted the petition and also found defendants should be treated as if they had predeceased Helen.
Defendants appeal, arguing the judgment should be reversed because the statement of decision is legally insufficient and the judgment is not supported by substantial evidence. We disagree and affirm.

A jury convicted Lyle Aaron Liwanag of committing multiple lewd acts on two girls under age 14 and statutory rape of another girl. It found true allegations he committed a sexual offense against more than one victim within the meaning of the “One Strike” law. (Pen. Code, § 667.61, subds. (b),(e)(5).) The trial court sentenced Liwanag to a total term of 15 years to life.
Liwanag argues the prosecutor committed misconduct during closing argument. He also contends the trial court failed to award 50 days conduct credits. The Attorney General concedes the credits issue, and we modify the judgment to reflect the proper award of presentence custody credits. In all other respects, the judgment is affirmed.

Plaintiffs Rafael De La Rosa and Ramy Mandujano filed a class action for violation of wage and hour claims. Sixteen days before the five-year statute within which to bring a case to trial (Code Civ. Proc., § 583.310) was set to run, the trial court granted the motion of defendant Able Acquisition Corp.,[1] to decertify the class because notice to the class had not yet been given. The court granted the motion on three grounds: 1) the inadequacy of counsel for the class; 2) the inability to ascertain class members; and 3) denial of due process to class members and defendant.
Plaintiffs argue the court erred because 1) it failed to consider tolling periods that extended the five-year statute and the impracticability of trying the case, which would allow for sufficient time to give notice; 2) its decisions counsel was inadequate and the class was not ascertainable were not supported by the evidence and were based on improper legal criteria; and 3) its finding of denial of due process was not supported by the evidence.
We conclude decertification was proper to protect the due process rights of class members and affirm on that basis.