CA Unpub Decisions

Ronnie Price appeals from the judgment entered following his convictions on one count each of simple assault (Pen. Code, § 240), evading an officer (Veh. Code, § 2800.1, subd. (a)), criminal threats (Pen. Code, § 422), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and possession of ammunition (Pen. Code, § 12316, subd. (b)(1)).[1] Appellant contends that the trial court erred in sentencing by failing to state its reasons for imposing the upper term and consecutive sentences. He also contends that he received ineffective assistance of counsel. We conclude that he forfeited his claim by failing to object to the court’s failure to state its reasons but that, in any event, he has not established he was prejudiced by his trial counsel’s failure to object. We direct the trial court to correct a clerical error in the abstract of judgment and otherwise affirm.

In his second appeal after his original sentence was vacated,[1] defendant and appellant Lavance McNair (defendant) contends that because he was resentenced January 19, 2012, the trial court should have sentenced him to local custody under the recently enacted Criminal Justice Realignment Act of 2011 (Realignment Act or Act), which applies prospectively only to those sentenced on or after October 1, 2011.[2] Respondent contends that acceptance of defendant’s position would contravene the Legislature’s intent that the Act apply prospectively. We affirm the judgment.

Plaintiffs and appellants Mehr Z. Beglari and Vickey M. Beglari, individually and as trustees of the Beglari Family Trust (collectively, plaintiffs) appeal from the judgment entered in favor of the City of Los Angeles (the City) after the trial court sustained, without leave to amend, the City’s demurrer to plaintiffs’ second amended complaint. We affirm the judgment.

Darnell Bluitt appeals from the judgment entered following his conviction by jury on one count of rape of an unconscious person. (Pen. Code, § 261, subd. (a)(4).)[1] We affirm.
On February 15, 2011, around 2:30 p.m., Lawanda Bogan was driving her bus down Compton Boulevard, nearing the end of her shift. There were five passengers on the bus at the time. As she approached a bus stop at the corner of Compton and Willowbrook, she saw a man bending over the bus stop bench. His hands were on the top of the bench, and he was leaning over the seat. Bogan initially thought the man was relieving himself, but then she saw a woman underneath him. The man’s pants were down, and he was moving up and down, as if he were having sex.
Bogan stopped her bus to let a female passenger off, and Bogan noticed that the woman on the bus stop bench had her eyes closed, was passed out, and was not moving. The female passenger looked out the bus window and exclaimed that the man was raping the woman, so Bogan told her to flag down a sheriff who was at a nearby El Pollo Loco restaurant. The passenger exited the bus and started screaming at the man, “You’re raping her. Get off of her.”
Bogan moved the bus forward and opened the doors again, and she saw a woman standing near the bus stop flag down the sheriff, who was leaving the El Pollo Loco parking lot. The man on the bus stop bench was still on top of the woman, but he was looking toward the sheriff. Bogan identified appellant in court as the man.
Appellant got off the woman, sat next to her on the bench, pulled up his pants and zipped them. The woman appeared to be passed out, with her head tilted to one side, and her pants pulled down so that her vagina was exposed.

Defendant and appellant Treyvon Lamar Daniels (defendant) appeals from the judgment entered after he was convicted of second degree robbery and second degree commercial burglary. He contends that his sentence must be reversed because he did not expressly waive his right to a jury trial on the allegation he sustained a prior juvenile adjudication. Defendant also contends that the trial court was not authorized to impose a five-year sentence enhancement due to the prior juvenile adjudication. We conclude that defendant forfeited his right to challenge the denial of a jury trial, but was not harmed by the denial in any event as we agree the five-year enhancement should not have been imposed. Therefore we strike the enhancement and remand the matter to the trial court for the opportunity to resentence defendant. We otherwise affirm the judgment.

R.C. (Mother) seeks writ review of an order terminating reunification services at the conclusion of the 18-month review hearing for her two-and-a-half year old child and the setting of a hearing for a permanent plan for the child. (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, § 366.26.)[1] Mother challenges the findings that reasonable services were provided by respondent San Francisco Human Services Agency (Agency). Specifically, she argues the Agency did not provide her with the “intensive” individual therapy required in her service plan, but allowed therapy to dwindle to once per month for five months of the reunification period. She contends that in the absence of reasonable services, the court erred in terminating services at the 18-month review hearing (held 23 months after the dependency was initiated) and abused its discretion in ignoring the exceptional circumstances of the case warranting continuing the 18-month review to provide more time for a special needs parent to reunify. We shall affirm.

J.R. (mother) petitions this court for extraordinary writ review of a juvenile court order terminating reunification services and setting a selection and implementation hearing for her nine children, who currently range in age from three to 17 years old. She argues that the juvenile court applied an incorrect legal standard when it declined to extend reunification services past the six-month review hearing. (Welf. & Inst. Code, § 366.21, subd. (e).)[1] We disagree and deny her petition.

In this case, a petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging minor committed first degree burglary (Pen Code, § 459). On September 7, 2012, at a contested jurisdictional hearing, the juvenile court sustained the petition. On September 21, 2012, the court declared appellant a ward of the court under the supervision of the probation department, finding that continued residing in the home of his grandmother was not in the best interests of the minor, and committed appellant to the care of the probation department. The appellant now challenges the sustaining of this petition. We affirm the judgment of the trial court.

Defendant was convicted following a second jury trial of two counts of lewd acts upon a child (Pen. Code, § 288, subd. (a)), and admitted that he suffered a prior conviction of the same offense for purposes of sentence enhancement pursuant to Penal Code sections 667.51, subdivision (a), and 667, subdivisions (b) through (i).[1] He was sentenced to an aggregate term in state prison of 30 years. In this appeal he claims that double jeopardy principles barred retrial of the prior conviction allegations, his admission of the prior conviction was invalid, imposition of the five-year enhancements for the prior conviction under sections 667, subdivision (a), and 667.51, subdivision (a), was error, and an upper term for the conviction of lewd acts upon a child was improper.
We conclude that double jeopardy did not attach to retrial of the prior conviction, and defendant’s admission of the prior conviction at his second trial was knowing and voluntary. No sentencing error occurred in the imposition of an upper term for the conviction of lewd acts upon a child, or the five-year enhancement under 667.51, subdivision (a). The trial court erred by imposing of a five-year enhancement under section 667, subdivision (a), as defendant was neither charged with nor admitted that allegation. The judgment must be modified to strike the five-year section 667, subdivision (a), enhancement. In all other respects we affirm the judgment.

The minor, J.C., appeals from the juvenile court’s dispositional order placing him on probation after finding that the minor committed vandalism (Pen. Code, § 594, subds. (a) & (b)(1))[1] and that he resisted, delayed, or obstructed a peace officer (§ 148, subd. (a)(1)).
On appeal, the minor contends: (1) there was insufficient evidence to sustain the juvenile court’s finding that he resisted, delayed, or obstructed a peace officer; (2) the juvenile court’s oral findings reflect it misunderstood the law; (3) the juvenile court failed to exercise its discretion to declare the vandalism count a felony or misdemeanor; and (4) there was insufficient evidence to sustain the juvenile court’s finding that the minor had the ability to pay a $154 fine imposed pursuant to Welfare and Institutions Code section 730.5.
We will remand the matter for a determination of whether the vandalism count is a felony or a misdemeanor and whether the minor has the ability to pay the $154 fine. In all other respects, we will affirm the judgment.

Defendant Rhuben Drew Hollins pled guilty to a charge of falsely impersonating another, thereby exposing the victim to liability, in violation of Penal Code section 529. The trial court placed him on probation on the condition, among others, that he refrain from using alcohol and avoid places where alcohol is sold. On appeal he objects to this condition on the ground that there was no evidence that consumption of alcohol has played any role in past misconduct by him and no reason to believe it has any bearing on the risk of future criminality. We find this objection sound. In imposing the condition the trial court was apparently laboring under the false impression that defendant had sustained a prior conviction for public drunkenness. In fact there is no evidence in this record that defendant has ever abused alcohol or any other drug; the only evidence of any use of intoxicants is two prior convictions based upon the possession of marijuana. We do not find in this history a reasonable basis to conclude that the inhibition-lowering effects of alcohol would significantly affect the risk of future criminal conduct by defendant. Accordingly, we will strike the alcohol prohibition and affirm the judgment as modified.

Plaintiffs Hiroko M. Watson, Mary Watson, and Madeline Watson, (hereafter jointly Plaintiffs) are the widow and daughters of decedent David Watson. Plaintiffs filed a complaint against Dr. Andrew Knorr and the Monterey Bay Urology Associates (jointly Defendants) for medical malpractice and wrongful death resulting from Dr. Knorr’s treatment of David Watson. The parties subsequently stipulated to binding contractual arbitration in accordance with the arbitration agreement David Watson signed prior to treatment. At arbitration, Plaintiffs were awarded $1,092,797, plus “costs in accordance with the California Code of Civil Procedure.” Plaintiffs petitioned the court to confirm the award; in their response, Defendants challenged the award of costs, arguing that the arbitration agreement required the parties to bear their own costs. The trial court corrected the award by removing the award of costs and confirmed the award as corrected. Plaintiff moved for reconsideration (Code Civ. Proc., § 1008),[1] arguing that they were entitled to costs pursuant to Code of Civil Procedure section 998 and prejudgment interest (Civ. Code, § 3291) because the Defendants rejected Plaintiffs’ offer to compromise. The court denied the motion for reconsideration. Plaintiffs appeal.
We conclude that since the parties submitted the question of costs to arbitration, it was for the arbitrators to determine both the entitlement to and the amount of costs to be awarded. Since this case does not meet any of the statutory grounds for correcting the award, the trial court could not correct the award, by either deleting the award of costs or determining the amount of costs, rendering the costs award a legal nullity. We hold that Plaintiffs should have presented their section 998 costs claim to the arbitrators and that they forfeited their Civil Code section 3291 prejudgment interest claim by failing to raise it in their petition to confirm the arbitration award. We conclude, however, that the trial court improperly denied Plaintiffs their costs related to the proceedings in the trial court (§ 1293.2) and will reverse the judgment and remand for the purpose of awarding those costs.

September Baron appeals from a judgment dismissing her claims against the County of Orange, the Orange County Sheriff’s Department, and an individual deputy sheriff for personal injuries, after the court sustained respondents’ demurrer to her first amended complaint. In her complaint, Baron had alleged four state-law causes of action and one cause of action for federal civil rights violations under 42 U.S.C. section 1983. The trial court dismissed her claims because she had not filed her complaint within the time limit specified in Government Code section 946.6, subdivision (f).
We affirm in part and reverse in part. Baron did indeed miss the filing deadline for her state-law causes of action, by a considerable margin. Her cause of action for civil rights violations, however, is not subject to this state-law condition. The court erroneously dismissed this last cause of action when it dismissed the other four. We therefore return the matter to the trial court for further proceedings on this lone claim.

The lawsuit underlying this appeal was brought by Ramon Canyon Associates, L.P., a limited partnership, against Todd Cunningham. Ramon Canyon sued Cunningham for fraud, breach of contract, and breach of fiduciary duty. After the parties had rested, the trial court granted Cunningham’s motion for nonsuit on fraud and directed a verdict on breach of fiduciary duty. The jury returned a defense verdict on the breach of contract claim, the sole cause of action submitted to it.
Ramon Canyon appeals from the nonsuit and the directed verdict. It also disagrees with the special verdict approved by the trial court. Finally, Ramon Canyon appeals from the denial of its motion for new trial.
We affirm. The nonsuit and directed verdict motions were properly granted; Ramon Canyon did not present the evidence necessary to support the fraud or breach of fiduciary duty claims. As to the special verdict, the court properly overruled the objection Ramon Canyon made at trial; the objection to the verdict it is making on appeal was not made in the trial court. Finally, although the trial court erroneously denied the new trial motion as untimely, the motion was, in fact, properly denied.