CA Unpub Decisions

Defendant and appellant, Joe Ramirez, Jr., appeals his conviction for gross vehicular manslaughter, leaving the scene of an accident, hit and run driving, and felon in possession of a loaded firearm, with enhancements for prior prison terms and fleeing the scene of a vehicular manslaughter (Pen. Code, §§ 192, subd. (c)(1), 12031 (former), 667.5; Veh. Code, §§ 20001, subds. (a) & (c), 20002).[1] He was sentenced to state prison for 13 years, 8 months.
The judgment is affirmed.

After plaintiff John Paul Hegedus pleaded guilty to second degree burglary for fraudulently obtaining prescription drugs, the court sentenced him to 365 days in Orange County jail and stayed 275 days of the sentence on condition that Hegedus complete a 90-day residential drug treatment program. Hegedus completed 35 days as a resident of Thomas Redgate Memorial Recovery Center (Redgate) before he was administratively discharged for violating Redgate’s rules. Hegedus, representing himself, sued Behavioral Health Services, Inc. (BHS), which owns and operates Redgate, and BHS employees, alleging numerous causes of action arising from his discharge and the failure to timely resolve his appeal from the discharge. After a 10-day jury trial, the jury was instructed on intentional infliction of emotional distress, Hegedus’s only remaining claim. The jury returned a defense verdict. Hegedus filed this appeal, contending the jury also should have been instructed on professional negligence, the common knowledge exception, and negligence per se. We affirm because there was no instructional error.

Petitioner A.T. (mother) has two children, G.T. and M.T. The children were declared dependents of the juvenile court, removed from mother’s custody, and returned to her at the 12-month review hearing. (Welf. & Inst. Code, §§ 300, 366.21.)[1] Concerns arose about mother’s ability to care for the children due to her mental health and anger management issues, and the court again removed the children after sustaining petitions under sections 342 and 387. Mother seeks extraordinary writ relief from an order denying her additional reunification services and setting the case for a hearing under section 366.26. She argues that the court should have granted her an additional period of reunification services because the services provided to date had been inadequate. We disagree and deny the writ petition.

Robert S. (Robert), the biological father of Lillian R., seeks extraordinary writ review pursuant to California Rules of Court, rule 8.452, of the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing regarding Lillian.[1] He claims that the section 366.26 hearing should not have been set because the court should have ruled that he was Lillian’s presumed father and offered him reunification services. Robert also appeals the juvenile court’s order denying his request for presumed father status. At Robert’s request, we consolidated the appeal with the writ petition.[2] We affirm the juvenile court’s order denying Robert presumed father status, and deny Robert’s petition seeking writ relief.

David Killam appeals from the denial of his petition for a writ of mandate challenging the suspension of his driver’s license. We affirm.

Defendant Thomas Gunsalus appeals after entering into negotiated plea agreements in five separate cases pending against him. His appointed counsel has asked this court to independently examine the records in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but he did not do so. We have conducted our review, conclude there are no arguable issues that require briefing, and affirm.

Plaintiffs[1] appeal after the trial court granted separate motions for summary judgment filed by each of the three defendants—(1) Lennar Corporation; Lennar-BVHP, LLC; Lennar Homes of California, Inc.; Lennar Associates Management, LLC; and Lennar Communities, Inc. (“Lennar”); (2) Gordon N. Ball, Inc. (“Ball”);[2] and (3) CH2M Hill (collectively “defendants”)—in plaintiffs’ tort action arising from their alleged exposure to hazardous substances in dust displaced by defendants during the grading phase of a redevelopment project. On appeal, plaintiffs challenge the trial court’s grant of summary judgment, arguing that triable issues of material fact exist regarding causation as to all claims. We shall affirm the judgments.

Lisa Marie Henderson was convicted by a jury of possession of methamphetamine for sale (Health & Saf. Code, § 11378), imposition of sentence was suspended, and she was granted probation, conditioned on her completion of a 180-day residential drug treatment program. She contends there was no substantial evidence to support a conclusion that she possessed methamphetamine, and that the conviction must be reversed because of instructional and evidentiary errors. We reject her arguments and affirm.

Salvatore John Cefalu appeals from an order committing him for an indeterminate term to the custody of the Department of Mental Health (DMH) after a court trial wherein he was found to be a “sexually violent predator” (SVP) within the meaning of the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).[1] He claims the denial of his motion to dismiss the petition was reversible error requiring his immediate release, because both the 2007 and 2009 protocols used by the evaluators were invalid. He relies on In re Ronje (2009) 179 Cal.App.4th 509 (Ronje) to challenge the evaluators’ use of the 2007 protocol as an “underground” regulation. He also asserts that the 2009 protocol is invalid because it is not a “standardized assessment protocol” within the meaning of section 6601, subdivision (c). Defendant contends that the use of those protocols violated his statutory and constitutional rights, and deprived the trial court of fundamental jurisdiction. For reasons explained below, we find both of defendant’s challenges to the 2007 and 2009 protocols lack merit.
Defendant also challenges the constitutionality of the SVPA on equal protection, due process, ex post facto, and double jeopardy grounds. We conclude that those claims are foreclosed by People v. McKee (2010) 47 Cal.4th 1172 (McKee I). Further, based on the reasoning of People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II) (review den. Oct. 10, 2012, S204503), we find no constitutional infirmity in the SVPA’s provisions for indeterminate commitments. We will therefore affirm the trial court’s commitment order.

The Probation Officer filed a petition under Welfare and Institutions Code section 601, subdivision (b) (all further statutory references are to the Welfare and Institutions Code unless otherwise indicated) seeking to have G.B. (minor) declared a ward of the court as a truant. The juvenile court sustained the petition after admitting, over minor’s objection, school district records documenting his numerous absences and the district’s unsuccessful efforts to resolve the problem. The court then issued a dispositional order, placing the minor in his mother’s custody under the probation officer’s supervision with conditions requiring him to enroll in and attend school.
On appeal, the minor argues the admission of his school records violated his right of confrontation and they were inadmissible as business records because the custodian of records’ affidavit accompanying the records failed to describe the mode of preparation. Further, acknowledging his probation has terminated, minor claims the issues raised are not moot. Finding no error, we affirm the judgment.

A jury convicted appellant, Tracy Scott McCarroll, of battery on a cohabitant (Pen. Code, § 273.5, subd. (a)),[1] evading a police officer (Veh. Code, § 2800.2, subd. (a)), driving in the direction opposite to lawful traffic during willful flight (Veh. Code, § 2800.4), possession of marijuana for purposes of sale (Health & Saf. Code, § 11359), and false imprisonment (§§ 236, 237, subd. (a)). The court imposed a prison term of five years and ordered that appellant pay various fines and fees, including a restitution fine of $1,200 under former section 1202.4, subdivision (b).
On appeal, appellant argues that the restitution fine, because it exceeded the statutory minimum and was based on facts found by the sentencing court, rather than by a jury, violated his federal constitutional right to trial by jury under principles set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Southern Union Co. v. U.S. (2012) ___ U.S. ____ [132 S.Ct. 2344, 2357] (Southern Union Co.). We affirm.

Appellant, Ronald David Riggins, was convicted by plea of numerous charges in eight Tulare County Superior Court cases (cases A through H).
On August 7, 2009, the court sentenced Riggins in the eight cases to an aggregate term of nine years eight months.
On November 10, 2011, the court denied Riggins’s request for a modification of sentence/abstract of judgment.
On appeal Riggins contends: 1) he is entitled to two additional days of presentence conduct credit in four cases because the court committed a mathematical error; 2) he is entitled to four additional days of presentence custody credit in case No. PCF183573C (case A); and 3) the court erred by its failure to award presentence conduct credit pursuant to the more generous provisions of amended versions of Penal Code sections 4019[1] and 2933. We will find that the court erred in its award of presentence custody credit, albeit not for the reasons advanced by Riggins, and modify the judgment accordingly. In all other respects, we affirm.

On January 28, 2002, in case No. VCF80477, appellant, Jose Rolando Ochoa, pled no contest to unlawful sexual intercourse with a person under the age of 18 (count 1/Pen. Code, § 261.5),[1] sexual penetration of a person under the age of 18 (count 3/§ 289, subd. (h)), and furnishing a controlled substance to a minor (count 5/Health & Saf. Code, § 11380, subd. (a)).

In this petition M.F. (Father), the father of the dependent minor child M.S. (the minor), challenges an order setting a “selection and implementation” hearing pursuant to Welfare and Institutions Code section 366.26[1] with a consideration of adoption.[2] Insofar as his contentions are properly before this court, we find no error and deny the petition.