CA Unpub Decisions

A modification decision.

Billy Ray Redding appeals from the judgment and order committing him as a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act. (Welf. & Inst. Code, § 6600 et seq., Act or SVP Act.) He contends the SVP Act violates his right to equal protection under both the state and federal constitutions because it treats SVPs differently from those involuntarily committed for treatment as mentally disordered offenders (MDOs) and those found not guilty by reason of insanity (NGIs). He further contends the Act violates his right to due process, double jeopardy protections and the constitutional prohibitions against ex post facto laws.

A jury found defendant and appellant Arthur Franklin Knox guilty of possession of cocaine base for sale. His sole challenge to his conviction concerns the trial court’s refusal to dismiss a juror, who he claims had an insufficient command of English. We find that the court did not abuse its discretion by refusing to dismiss the juror, and we therefore affirm the judgment.

A Modification decision.

In this child dependency proceeding regarding two children, B.R., born in 2008, and M.R., born in 2011, the superior court terminated reunification services and set a hearing for July 9, 2013, to determine a permanent plan for the minors. (Welf. & Inst. Code, § 366.26.)[1] K.C. (hereafter Mother) and N.R. (hereafter Father) have filed separate petitions for extraordinary writ. They each argue that they substantially complied with their reunification plans, and that the court erred in failing to extend reunification services beyond the 12-month review hearing so that they could successfully reunify with their children. As substantial evidence supports the juvenile court’s findings and orders, we deny the petitions.

By way of this writ proceeding, A.H. challenges the dependency court’s jurisdiction and disposition orders, and its order setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26.[1] Specifically, A.H. challenges the court’s ruling he is the “biological,” not the “presumed”, father of M.H. and contends the conclusive presumption of paternity set forth in Family Code section 7540 applies. The County of Marin does not dispute A.H. made the requisite showing to trigger the presumption—that is, that when M.H. was born, her mother and A.H. were married and cohabitating, and A.H. was not then impotent or sterile. (Fam. Code, § 7540.) The county maintains, however, the court properly found, as a matter of public policy, the presumption should not apply in this case.
While we agree with the county the record in this case raises grave concerns about the safety of M.H. if custody is awarded to A.H., and we have serious doubts reunification services would be utilized by A.H. and, even if they were, they would repair what appears to be a non-existent familial relationship between A.H. and his daughter, these concerns should have been addressed in the context of determining custody and the provision of reunification services, not through the expediency of disregarding the conclusive presumption set forth in Family Code section 7540. We therefore grant the writ petition in part, order the court’s disposition order and order declaring A.H. to be only a “biological” father vacated, and remand for further proceedings.

Defendant committed his crime in June 2011, and on July 18, 2012, pleaded no contest to second degree commercial burglary (Pen. Code, § 459),[1] and petty theft with a prior (§ 666). He also admitted that he had served five prior prison terms (§ 667.5, subd. (b)), and that he had suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Subsequently, the trial court granted defendant’s Romero motion as to his two strikes, and sentenced defendant to prison for six years. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court granted defendant presentence credits based on the version of section 4019 in effect when he committed his crime.
On appeal, defendant contends that he is entitled to additional presentence conduct credits. He claims that the trial court correctly calculated his conduct credits under the former version of section 4019 for the period of June 2011 until September 30, 2011, but that it should have calculated his conduct credits including and after October 1, 2011, under the current version of section 4019. We reject defendant’s argument but conclude that the trial court’s calculation of presentence custody credit is incorrect, and modify the judgment to increase his presentence custody credit from 251 to 255 days.

In 2011, the Alameda County Social Services Agency (the agency) filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b)[1] on behalf of Patricia F. The petition alleged that Patricia had suffered or was at substantial risk of suffering serious physical harm as a result of the failure or inability of Shannon T. (mother) to supervise or protect her. Subsequently, K.A. (father) was offered reunification services and elevated to presumed father status. Father filed a petition to change the child’s name from Patricia Lucille F. to Heather Mariam A. After a hearing, the court found that it was in the child’s best interest to change her name and mother appeals from that order. Mother does not object to the change in the child’s surname but contends that the record does not contain substantial evidence to support a finding that it is in the child’s best interest to change her first and middle names. We affirm the judgment.

Respondents Christopher Logan and Brian Casey purchased a house in Pacifica next door to a house owned by appellants Christopher Ranken and Sylvia Chupity. Logan and Casey lived in their house, but Ranken and Chupity used theirs for short-term vacation rentals. Logan and Casey sued under nuisance and other tort causes of action alleging that Ranken and Chupity failed to control loud and disruptive parties and other disturbances. After a three-day trial, the superior court awarded Logan and Casey $25,000 in damages, enjoined Ranken and Chupity from using their house for weekend-only rentals, and required them to include a noise-curfew restriction in their rental agreements. On appeal, Ranken and Chupity argue that they are not liable for the actions of their short-term renters, the judgment was not supported by substantial evidence, Chupity lacked actual knowledge of the disturbances, the damages were calculated incorrectly, and the court lacked authority to enter portions of its injunction.

Defendant City of Alameda (the city) appeals from an order denying its special motion to strike the complaint of plaintiff Ann Marie Gallant as a strategic lawsuit against public participation pursuant to Code of Civil Procedure,[1] section 425.16 (hereafter referred to as SLAPP statute or anti-SLAPP statute). The trial court determined that the complaint was not based on petitioning or free speech activity protected by section 425.16. We disagree, and accordingly, we reverse and remand for further proceedings.

Daniel Longorio was charged with multiple counts of home invasion robbery, burglary, false imprisonment, possession of a firearm by a felon and escape, with allegations of personal use of a firearm, commission of crimes while on parole, and prior convictions and prison terms. He successfully moved to represent himself at trial, but was less successful in his exercise of that right. A jury convicted him of all charges and found the allegations true, and the court sentenced Longorio to 198 years to life in prison. On appeal, Longorio argues his waiver of representation was not knowing and intelligent because the court did not accurately inform him of the maximum penalty he faced or adequately inform him of the nature of the charges against him. We find no error and affirm, but order a correction in the abstract of judgment.

A jury found Jeffrey Olesh and codefendant Edward Fraser guilty of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), finding true, as to Fraser, that he used a firearm and, as to Olesh, that a principal in the crime was armed with one (id., § 12022, subd. (a)(1)). Each was sentenced to an aggregate six years in prison, Olesh’s sentence consisting of a five-year upper term for the robbery (id., § 213, subd. (a)(1)(B)(2)), a consecutive one-year enhancement for the vicarious arming, and a concurrent two-year midterm for violating probation that had been granted for grossly negligent discharge of a firearm (§ 246.3, subd. (a)).
Olesh alone appeals, raising several claims of improper admission of evidence, a claim of ineffective assistance concerning his counsel’s failure to object to a ruling that led to defense evidence not being introduced, and a claim of cumulative prejudice. We affirm the judgment, finding no prejudicial error.

Defendants and cross-complainants OZ Optics Ltd., Oz Optics, Inc. (collectively OZ), and Omur Sezerman appeal from a judgment entered after a jury trial in favor of plaintiff and cross-defendant O’Keefe & O’Keefe, LLP (O&O), defendants’ former attorneys.[1] O&O sued defendants for failing to pay for legal services rendered by O&O in connection with two matters: OZ Optics Limited, et al. v. Hakimoglu, et al. (Alameda County Super. Ct. No. 01-0334488) (the Hakimoglu action) and Reinhard v. Bitmath, Inc., et al. (Santa Clara County Super. Ct. No. 1-02-CV-810955) (the Reinhard action). The jury awarded O&O damages against OZ in the sum of $190,142.54 with interest from the date of entry of judgment, plus costs. [2]
On appeal, defendants contend: (1) the trial court improperly dismissed all causes of action of defendants’ cross-complaint for failure to comply with the one-year statute of limitations for attorney malpractice (Code Civ. Proc., § 340.6) [3] and erroneously found O&O was not estopped to rely on the statute; (2) the trial court abused its discretion in allowing defendants’ trial counsel to withdraw before the outset of trial in circumstances where such withdrawal prejudiced defendants; (3) the court prejudicially erred when it struck the opinions of OZ’s expert witness Ronald Mallen, Esq. as to issues related to OZ’s affirmative defenses that OZ was entitled to deductions from O&O’s billing where O&O performed negligently and breached its contract with defendants; and (4) the court erroneously granted a partial directed verdict for O&O on OZ’s affirmative defense asserting an offset for sums owing due to O&O’s professional negligence.[4] We shall affirm the judgment.

Appellant Bradley Blackwell was sentenced to prison for a term of life without the possibility of parole (LWOP) following his conviction by jury trial of first degree murder with felony-murder special circumstances and other offenses, which were committed when he was 17 years old. He appealed, arguing his LWOP sentence should be reversed because (1) it exceeded the punishment allowable absent a jury determination of his age and violated his Sixth Amendment rights under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi); (2) it amounted to cruel and unusual punishment under the Eighth Amendment of the federal Constitution because he was a juvenile at the time of the offenses; and (3) it was an abuse of discretion.