CA Unpub Decisions

T.T. (the father) and S.C. (the mother) appeal from an order terminating parental rights to their daughter, A.T. (sometimes the child), who is now four years old. The father contends that the Department of Public Social Services (the Department) failed to give him due notice of the proceedings and failed to carry out a reasonably diligent search for him. The mother joins in the father’s arguments.
Parental rights were not terminated until 10 months after the father — having become aware of the proceedings somehow — appeared and received appointed counsel. His counsel told the juvenile court that she was considering asserting lack of notice. Nevertheless, she did not actually raise this issue, and she did not object to termination of parental rights on this ground. We therefore conclude that it has been forfeited.
I

Pursuant to a plea agreement, defendant and appellant Vincent Burl Fisher pled guilty to one count of possession of a controlled substance for sale (Health & Saf. Code, § 11378) and admitted that he had served one prior prison term (Pen. Code, § 667.5, subd. (b)).[1] The crime occurred on September 4, 2011. The trial court sentenced defendant to four years in state prison and awarded him 255 actual credits and 126 conduct credits, for a total of 381 presentence custody credits. The court also imposed a $240 victim restitution fine and a $240 parole revocation restitution fine (stayed pending successful completion of parole).
On appeal, defendant contends: (1) the trial court’s imposition of $240 for a restitution fine and a parole revocation restitution fine under sections 1202.4 and 1202.45 violated the ex post facto clause; and (2) defendant is entitled to day-for-day conduct credits for his jail time on and after October 2011. We affirm.

Defendant Riverside County Transportation Commission (RCTC) filed a motion for summary judgment.[1] It alleged that plaintiffs’ action was barred by res judicata and collateral estoppel because plaintiffs had already received severance damages for the same property in an earlier eminent domain action.
Although plaintiffs argued that there were many factual issues to be tried, the trial court granted the motion for summary judgment. It found that the drainage and flooding issues were considered in the eminent domain action and that the severance damages awarded in the eminent domain action compensated plaintiffs for all reasonably foreseeable damage to their property caused by the proposed improvements.
Plaintiffs appeal, contending that the trial court erred because the issue of flooding was not raised in the prior action, there are material factual issues, and the flooding was not a reasonably foreseeable result of the proposed project.
Finding at least three material factual issues, we must reverse the trial court’s granting of the summary judgment motion.

In 1985, a team of robbers stole $265,000 from a Riverside bank. One of the robbers got into a shootout with a security guard. The security guard was shot and died; the robber was shot and bleeding but managed to flee. In 2007, DNA testing matched the robber’s blood to defendant Leslie Gene Parker.
Defendant was charged with murder (Pen. Code, § 187, subd. (a)), with a robbery-murder special circumstance (Pen. Code, § 190.2, subd. (a)(17)), a personal firearm use enhancement (Pen. Code, § 12022.5, subd. (a)), and a prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)).
In the guilt phase, the jury found defendant guilty of first degree murder (Pen. Code, § 189) and found all the charged allegations true.
In the penalty phase, the jury was unable to reach a verdict. The People elected not to retry the penalty phase. Accordingly, defendant was sentenced to an indeterminate term of life without the possibility of parole, a determinate term of seven years, and the usual fines and fees.
Defendant now contends:
1. The trial court erred by admitting evidence that defendant had committed a previous robbery.
2. The trial court violated the confrontation clause by allowing a pathologist who was not present at the victim’s autopsy to testify regarding the autopsy report.
We find no prejudicial error. Hence, we will affirm.

In this gang-related stabbing case, a jury convicted Juan Jose Vizcarra─who was a member of the Chicali Brazas (Chicali) criminal street gang in Brawley, California─of (1) assaulting Jesus Zermeno with a deadly weapon, a knife (count 2: Pen. Code, § 245, subd. (a)(1)) (undesignated statutory references will be to the Penal Code); and (2) attempting to dissuade a witness, Zermeno, in violation of section 136.1, subdivision (a)(2) (hereafter section 136.1(a)(2)) (count 3). The jury found Vizcarra not guilty of attempting to willfully, deliberately, and with premeditation murder Zermeno (§§ 187, subd. (a), 664) as charged in count 1.
The jury found true a count 2 allegation that Vizcarra committed assault with a deadly weapon for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, the court found true a count 2 allegation that Vizcarra had suffered a strike prior (§ 667, subds. (b)-(i)). A strike prior allegation was not included in count 3 of the information.
The court sentenced Vizcarra in this case (No. JCF25950) to an aggregate prison term of 15 years consisting of (1) the upper term of four years for his count 2 conviction of assault with a deadly weapon, doubled to eight years under the Three Strikes law as a result of the court's true finding on the count 2 strike prior allegation; plus (2) a consecutive middle term of two years for his conviction of attempting to dissuade a victim or witness; and (3) a five-year term for the gang enhancement.[1] During the same hearing, the court also sentenced Vizcarra to concurrent terms in two other cases: one—case No. JCF25997 (hereafter the jail stabbing case)—involving an assault with a deadly weapon that he committed while in custody for the present case, and another—case No. JCF23935 (hereafter the probation revocation case)—involving revocation of probation granted to him following his prior robbery conviction.
Vizcarra appeals, contending (1) there is insufficient evidence to sustain his count 3 conviction of attempting to dissuade a victim or witness (§ 136.1(a)(2)) because, although the evidence may show he attempted to influence the content of Zermeno's testimony, there is no evidence he attempted to prevent or dissuade Zermeno from going to court, and, thus, there is no evidence he attempted to prevent Zermeno from testifying; (2) the abstract of judgment must be corrected (a) to reflect that he was convicted of assault with a deadly weapon (count 2) and not attempted murder (count 1), and (b) to clarify that the gang enhancement allegation was found true only with respect to count 2; and (3) the court erred in both the instant case and the jail stabbing case by calculating his custody credits with the 15 percent limitation under section 2933.1, rather than under section 4019, and, thus, he should have been awarded 280 days of work time credit in each case.

In 2006 Gregg and Janet Short (together the Shorts, who are not parties to this appeal but are interested persons) purchased a home in the Isla Verde residential community (Isla Verde). They then transferred title to themselves as trustees of their family trust and later transferred title to plaintiff SB Liberty, LLC (SB Liberty), a California limited liability company organized in early 2011, which is owned by the Shorts as trustees of their trust and is managed by Gregg Short, SB Liberty's sole manager. The Shorts reside in the home. Defendant Isla Verde Association, Inc. (the Association) is a California nonprofit mutual benefit corporation that is an association of the Isla Verde homeowners. It is undisputed that SB Liberty is a member of the Association.
This action against the Association for injunctive relief (among other things) arose when the Association's board of directors (the Board) denied SB Liberty's retained counsel, Peter D. Lepiscopo, access to the Board's September and October 2011 meetings. SB Liberty brought a motion for preliminary injunction seeking to enjoin the Association and the Board from taking any action to prevent or interfere with SB Liberty's representatives, including Lepiscopo, attending and participating in the Board's meetings. The court denied the motion.
SB Liberty appeals the denial of its motion for preliminary injunction, contending (1) the Association─a "quasi-government entity"─has prevented SB Liberty─ whose association, speech, and member rights are fundamental in nature─from attending the open sessions of the Association's Board meetings by excluding its chosen representative─attorney Lepiscopo[1]─from those meetings, thereby causing SB Liberty to suffer great and irreparable harm; and (2) SB Liberty is entitled to send the representative of its own choosing (Lepiscopo) to the open sessions of the Board's meetings because SB Liberty is a member of the Association but not a natural person. We affirm the order denying SB Liberty's motion for preliminary injunction.

This is an appeal after remand for resentencing. In People v. McNeese (Oct. 17, 2011, C065352) [nonpub. opn.] (McNeese I), this court reversed and remanded, concluding that the trial court had failed to exercise its discretion and determine whether to return defendant to Proposition 36 probation for a non-drug-related probation violation. On remand, the trial court exercised its discretion and sentenced defendant to state prison.
Defendant appeals, contending the trial court abused its discretion in sentencing him to prison instead of returning him to Proposition 36 probation. We reject this contention. Defendant also contends that he is entitled to additional presentence custody credit. We agree with this contention and will order the judgment modified accordingly.

Megan M., mother of the now 21-month-old minor, appeals from the judgment (disposition orders) declaring the minor a dependent child, denying her services, and placing the minor out of the home. ( ADDIN BA xc <@st> xl 36 s FUKEKP000001 xpl 1 l "Welf. & Inst. Code, §§ 300, 358, 360" Welf. & Inst. Code, §§ 300, 358, 360.)[1] Appellant argues the juvenile court erred in finding jurisdiction because the Sacramento County Department of Health and Human Services (Department) failed to show the minor was currently at risk of suffering physical harm or abuse. Appellant also argues the disposition finding that removal was required and the order bypassing her services for her were not supported by substantial evidence. In a review hearing subsequent to the judgment, the juvenile court returned the minor to parental custody and ordered family maintenance services for both parents. Several months thereafter, the court terminated the dependency awarding joint custody to both parents.[2] We affirm the juvenile court’s exercise of jurisdiction and conclude the dispositional issues are now moot.

Defendant Todd Martin Wilkinson pled no contest to failing to register as a sex offender and admitted he had served two prior prison terms. The trial court sentenced him to state prison for five years, suspended execution of said sentence, and placed him on probation. Defendant appeals, contending the condition of his probation that he enroll in and successfully participate in a program of sex offender specific therapy should be stricken as invalid. We dismiss the appeal as moot.
As a result of defendant’s 1997 conviction for rape, he is required to register as a sex offender pursuant to Penal Code section 290. On September 26, 2011, he was charged with failure to register as required. It was also alleged he had served two prior prison terms and had a prior strike conviction.

Plaintiff and appellant Teresa Neal claims her civil rights were violated and her personal property taken when defendant County of Shasta’s (County) sheriff deputies and SWAT team executed an arrest warrant at her home for Jess David Woods, with whom Neal owned the home. All of plaintiff’s claims were brought pursuant to the federal civil rights act ( ADDIN BA xc <@st> xl 18 s FJPJTH000001 xpl 1 l "42 U. S. C. § 1983" 42 U.S.C. § 1983; hereafter ADDIN BA xc <@$st> xl 6 s FJPJTH000001 xpl 1 section 1983). After hearing plaintiff’s evidence, the trial court granted defendants’ motion for nonsuit.
Plaintiff’s appeal argues the trial court erred in granting nonsuit. She argues defendants violated her federal ADDIN BA xc <@con> xl 16 s FJPJTH000021 l "Fourth Amendment" Fourth Amendment rights when they searched her home incident to the arrest of Woods, because Woods was arrested before the search, making a continued search warrantless. Plaintiff’s version of the order of events is mere wishful thinking, as all the evidence indicated the arrest of Woods occurred simultaneous to the sweep search of the home, and Woods was not conclusively identified until after the sweep search was completed. Citing federal authority that is contrary to California state authority, plaintiff argues the County had no ADDIN BA xc <@con> xl 18 s FJPJTH000022 l "Eleventh Amendment" Eleventh Amendment immunity for the law enforcement actions of its sheriff’s department. The California Supreme Court has held otherwise, and we are bound by its authority.

The People charged defendant Francisco Ruiz with murder (count 1) and attempted murder (count 2), with enhancements alleged as to both counts that Ruiz committed the offenses for the benefit of a criminal street gang and that a principal personally and intentionally discharged a firearm causing death. (Pen. Code, §§ 187, subd. (a), 664/187, subd. (a), 186.22, subd. (b), 12022.53, subds. (d), (e)(1).)[1] The charges arose from a walk-up shooting. The prosecution theory was that Ruiz was the shooter. At a first trial, a jury could not reach a verdict on the murder count, and acquitted Ruiz of attempted murder.[2]
At a second trial, a jury convicted Ruiz of first degree murder, with findings that the murder was committed to benefit a criminal street gang and that a principal personally and intentionally discharged a firearm causing death. The prosecution theory again was that Ruiz was the shooter.
The trial court sentenced Ruiz to a total term of 50 years to life in state prison comprised of a term of 25 years to life on the murder count and 25 years for the firearm enhancement. The court ordered Ruiz to pay $7,280 in direct victim restitution through the Victims’ Compensation Board, and a $200 restitution fine, and a corresponding $200 parole revocation fine (stayed). (§§ 1202.4, subds. (b), (f), 1202.45.)
Ruiz appeals. We modify the terms of the restitution fines, and affirm.

Donovan F. (father) appeals from the juvenile court’s exit order for monitored visitation between him and his two children, son D.F. and daughter L.F. Father contends that the court erred in requiring his weekly visits to be monitored because the evidence did not support a need for monitoring, and besides that, the court undermined its order for weekly visits by requiring a monitor when none was consistently available. Additionally, father asserts the court erred when it failed to specify a minimum duration for each visit. We affirm.

C. D. appeals from an order establishing a probate conservatorship over her person. C.D. argues there is insufficient evidence to support the conservatorship order appointing her brothers, Richard and Timothy[1] D., as probate conservators. We conclude substantial evidence supports the probate court’s finding that C.D. is unable to provide properly for her personal needs for physical health, food, clothing or shelter. (Prob. Code § 1801, subd. (a).) We affirm the judgment.

Plaintiff Xin Gao appeals from the denial of his motion to disqualify Tony M. Lu as counsel for the remaining defendants in this action. Finding no abuse of discretion by the trial court, we affirm.