CA Unpub Decisions

Appellant Nader Yousefzadeh (father) and respondent Saba Yousefzadeh (mother) married in 1998 and had three daughters. On August 2, 2007, father filed a petition for dissolution of the marriage. As of that date, the couple’s three daughters were ages six, two, and one. Father appeals from the judgment on reserved issues in this matter. He contends the family law court erred in finding he waived his right to past and future “nanny care” expenses. Father’s argument has merit and requires a limited reversal with directions to strike the portion of the judgment that states father waives his right to future and past due child care expenses, which the parties refer to as nanny care. We also direct the court to (1) conduct further proceedings to determine what reasonable nanny care expenses, if any, father is owed, and (2) enter an amended judgment based on those proceedings.

In 2009, appellant Steven Majeske (Majeske) was terminated from his employment at DRS Sensors and Targeting Systems, Inc., (hereinafter STS) a subsidiary of DRS Technologies, Inc. (DRS, collectively referred to as respondents). He filed an action for wrongful termination and several other causes of action against respondents. Respondents filed a motion for summary judgment and the trial court granted summary adjudication on five causes of action. The case proceeded to a jury trial on the remaining two causes of action (age discrimination and wrongful termination). The court granted a motion for directed verdict on those two causes of action and entered judgment in favor of respondents.
Majeske appeals and we affirm.

An amended information, filed on June 27, 2011, charged Reginald Holmes with two counts of murder (Pen. Code, § 187, subd. (a))[1] and one count of being a felon in possession of a firearm (former § 12021, subd. (a)(1)). As to the murder counts, the amended information alleged (1) firearm use enhancements under section 12022.53, subdivisions (b), (c) and (d); (2) the special circumstances of multiple first or second degree murders (§ 190.2, subd. (a)(3)) and lying in wait (§ 190.2, subd. (a)(15)); and (3) a prior conviction for shooting at an inhabited dwelling (§ 246) that qualified as a serious felony under section 667, subdivision (a)(1). As to all three counts, the amended information alleged that Holmes had (1) committed the offenses for the benefit of, at the direction of or in association with a criminal street gang within the meaning of section 186.22, subdivision (b); (2) served four prior prison terms pursuant to section 667.5, subdivision (b); and (3) suffered the prior conviction under section 246, which constituted a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

Defendant and appellant Stacy Marie Barker (defendant) appeals from the judgment entered upon her conviction of murder and related crimes. Defendant contends that the trial court erred in denying her motion for a change of venue, her Batson/Wheeler motion,[1] and her Massiah motion.[2] She also contends that the trial court unduly restricted cross-examination, that evidentiary rulings and instructional error deprived her of a fair trial and due process, that her conviction of first degree murder was not supported by substantial evidence, and that cumulative error deprived her of a fair trial. In addition, defendant asks that we review the in camera proceedings held pursuant to her Pitchess motion.[3]

The juvenile court terminated the parental rights of appellants Joseph D. and Mary F. to their minor children, William and James D. Both parents appeal,[1] challenging the juvenile court’s determination and alleging that Joseph’s bond with the minors outweighed the benefits of adoption. (Welf. & Inst. Code,[2] § 366.26, subd. (c)(1)(B)(i).) We affirm the juvenile court orders.

Mario Nolasco Fernandez appeals from an order extending his commitment as a mentally disordered offender. (Pen. Code, § 2970.) On March 14, 2012, the Santa Clara County District Attorney filed a petition pursuant to Penal Code section 2970, requesting a one-year extension of appellant’s involuntary commitment to Napa State Hospital where appellant resides. According to the petition, appellant was convicted of a violation of Penal Code section 288 subdivision (a) in 1991 and served a three year prison term. He did not do well on parole. On May 20, 1997, he was admitted to Atastadero State Hospital as a mentally disordered offender pursuant to Penal Code section 2962. The petition also alleged that appellant suffered from a severe mental disorder that was not in remission and could not be kept in remission without continued confinement. The appellant was not present at any court proceeding until his trial date. Appellant’s counsel waived a jury trial on his behalf and the matter was set for court trial. At trial, the court heard testimony from appellant’s psychiatrist, Dr. Eyerman. The doctor testified that appellant suffers from schizophrenia and remains a danger to others. The court found the petition true, and ordered appellant’s commitment extended. This timely notice of appeal ensued.
On appeal, we appointed counsel to represent appellant in this court. Appointed counsel filed an opening brief which states the case and the facts bur raises no specific issues. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 543-544 (Ben C.); People v. Taylor (2008) 160 Cal.App.4th 304.) We notified appellant of his right to submit written argument in his own behalf within 30 days. Thirty days have elapsed and we have received nothing from the appellant.[1]
The appellant having failed to raise any issue on appeal, we dismiss the appeal as abandoned. (Ben C., supra, 40 Cal.4th 529.)

In H037541, defendant Doyle Orlando Arnold appeals from a judgment entered after the court revoked probation and sentenced him in two separate cases to concurrent terms of two years. In H038656, defendant appeals from a post-judgment order denying his request for additional presentence conduct credit.[1] On appeal, he claims that he is entitled to additional presentence conduct credit. We disagree and affirm the judgment and post-judgment order.

In H037541, defendant Doyle Orlando Arnold appeals from a judgment entered after the court revoked probation and sentenced him in two separate cases to concurrent terms of two years. In H038656, defendant appeals from a post-judgment order denying his request for additional presentence conduct credit.[1] On appeal, he claims that he is entitled to additional presentence conduct credit. We disagree and affirm the judgment and post-judgment order.

Defendant James Bartz appeals from an order converting his involuntary commitment as a mentally disordered offender (MDO) on parole to a post-parole, civil commitment and then extending it. (Pen. Code, §§ 2962, 2970, 2972.)[1] He claims the court erred in failing to advise him of his right to a jury trial, accepting counsel’s jury waiver, and conducting a bench trial.
We affirm the extension order.

In 2000, after a bench trial, the court found defendant Alejandro Munos Gonzalez not guilty by reason of insanity (NGI) of arson and assault and battery and committed him to the Department of Mental Health (Department) for treatment at Atascadero State Hospital (ASH). (Pen. Code, §§ 451, subd. (d), 242, 243, subd. (a), 1026.5, subd. (a).)[1] Defendant appeals from an order extending his commitment until September 9, 2013. He claims the court erred in failing to advise him of his right to a jury trial, failing to obtain his personal waiver, accepting counsel’s jury waiver, and conducting a bench trial.
We affirm the order.

In 1999, Appellant Juan Alexander Montes was convicted of attempted murder, assault with a semiautomatic firearm, assault with a deadly weapon, exhibiting a firearm, street terrorism, and attendant firearm use and gang enhancements. He was sentenced to 30 years to life imprisonment. He appealed his conviction and we affirmed the judgment against him.
In December 2012, he filed in superior court a petition to recall his sentence on the basis that newly-enacted Penal Code section 1170.126 required a new and lesser sentence for his crimes.[1] The petition was denied and he appealed.
We appointed counsel to represent him on that appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against his client, but advised the trial court he could find no issues to argue on appellant’s behalf. Montes was invited to express his own objections to the proceedings against him, but did not. Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of Montes’ lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which Montes would prevail, but only issues upon which he might possibly prevail.

After providing Phillip Wall an administrative hearing, the Department of Motor Vehicles (DMV) suspended his driver’s license subsequent to his arrest for violating Vehicle Code[1] section 23152. Wall pled guilty to the new offense and admitted he suffered a prior conviction for violating section 23152. The court ordered Wall to complete a driving-under-the-influence alcohol program and when the DMV received notification of Wall’s enrollment, it set aside the suspension and issued Wall a restricted driver’s license. The DMV subsequently suspended Wall’s license again when it received notice Wall did not successfully complete the program. (§ 13352, subd. (e).) Section 14101 provides that a driver is not entitled to a hearing when the DMV is required to suspend the driver’s license, as the DMV was in this case.
Wall contends the DMV’s suspension of his license violated due process because he was not provided a hearing to determine whether his termination from the alcohol program was arbitrary or capricious. We conclude that even if a driver is entitled to a hearing to demonstrate termination from the program was arbitrary or capricious, Wall’s petition did not allege facts tending to indicate his termination from the alcohol program was arbitrary or capricious. Consequently, we affirm the superior court’s order denying relief on Wall’s petition for a writ of mandate.

Jose Alberto Samaniego argues that the trial judge should have told the jury that one of the charges against him, digital penetration of his stepdaughter in violation of Penal Code section 288.7,[1] is a specific intent crime requiring, in addition to the act of penetration, the purpose of sexual abuse, arousal or gratification. But the trial judge did instruct the jury the penetration count required the purpose of sexual abuse, arousal or gratification. He only misclassified the penetration count as a general intent crime, not a specific intent crime. The error, such as it was, was de minimis, and easily harmless beyond a reasonable doubt under the Chapman standard.[2] We affirm the judgment.

Plaintiff Stephen Thompson sued the Automobile Club of Southern California (the Auto Club) in this putative class action. He challenges the Auto Club’s policies relating to renewal, specifically, its practice of “backdating” late renewals to the member’s original expiration date if the renewal occurs within 95 days. He claims this practice results in late-renewing members receiving less than a full year of services. The Auto Club counters that the 95-day period is a “grace period” and that members are generally permitted to continue receiving services, particularly during the first 31 days. This practice, the Auto Club further argues, prevents the member from incurring a $20 fee to start a new membership.
Thompson moved for class certification, and the trial court denied the motion. The court concluded, among other things, that the proposed class was overbroad, lacked commonality, and that Thompson’s claims and defenses were not typical of the class. Further, it ruled that a class action is not a superior method of adjudication. Thompson appeals the trial court’s decision, arguing the court’s decision was unsupported by substantial evidence, contrary to established law, and was premised on the trial court’s misunderstanding of the plaintiff’s claims. The Auto Club argues the class certification motion was properly denied for the reasons stated by the trial court.
Based on the deferential standard of review appropriate to a motion for class certification, we find no error. Contrary to Thompson’s arguments, the court’s decision reflects that it understood the facts and used appropriate criteria for its decision. Therefore, there was no abuse of discretion, and we affirm.