CA Unpub Decisions

intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a)) and oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)). The court sentenced him to 40 years to life in prison, imposed various fines and fees, and issued a no-visitation order pursuant to section 1202.05. That section requires a court to prohibit all visitation between an imprisoned defendant and a child victim if the defendant is convicted of at least one of certain enumerated sex offenses.
Gonzalez’s sole issue on appeal is that neither offense he pled no contest to is enumerated in section 1202.05, and therefore the no-visitation order issued thereunder was unauthorized and must be vacated. The People agree the section 1202.05 order must be vacated, but ask us to remand the matter for the trial court to consider issuing a restraining order under section 136.2, subdivision (i)(1). That subdivision requires a court, at the time of sentencin

Defendant Raymond Hansen, Jr., entered into a negotiated plea agreement in which he pled no contest to felony hit and run with injury (Veh. Code, § 20001, subd. (a); count I) and admitted a prior prison term enhancement (Pen. Code, § 667.5, former subd. (b)). (Undesignated statutory references are to the Penal Code.) Pursuant to the agreement, the court sentenced defendant to a stipulated term of four years plus a consecutive one-year term for the prior prison term enhancement, for a total term of five years. After defendant was sentenced, the Legislature enacted Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136), which provides a prior prison term enhancement will only apply if a defendant served the prior prison term for a qualifying “sexually violent offense” as that phrase is defined in Welfare and Institutions Code section 6600, subdivision (b).
On appeal, defendant asks us to apply Senate Bill 136 retroactively and strike his prior prison term enhancement. The P

purchase and develop 80 acres of land. His dealings with the business culminated in charges for embezzlement (Pen. Code, § 508) and grand theft (§ 487, subd. (a)). Additional tax evasion charges followed (Rev. & Tax. Code, § 19706).
The alleged victims to the theft crimes were McFarland Partners LLC (McFarland) and VDC LLC (VDC). Kapral eventually settled his case via negotiated plea with the district attorney. The agreement reached by the parties entailed a conviction to an amended tax evasion charge (Rev. & Tax. Code, § 19705, subd. (a)(1)), restitution to the state Franchise Tax Board, and the dismissal of the original charges.
Central to this appeal, the negotiated plea included an agreement for a future “restitution hearing/bench trial” to determine restitution on the dismissed charges. In addition, the plea form included a typical Harvey waiver. At the plea hearing, Kapral’s counsel informed the court, “[T]he restitution hearing on those dismissed counts … will be ba

APPEAL from the Superior Court of San Bernardino County. Lisa M. Rogan, Judge. Affirmed.
Rudy Anthony Guzman, in pro. per.; Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed as modified.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Brian Cranston Vermillion and his wife (W.) got into an argument over whether she had engaged in a sex act with her then-boss some 15 to 30 years ago. The argument ended when W. ran out of the house and sought refuge with their next-door neighbors. At that point, she had a head wound, along with scratches, scrapes, and bruises over much of her body.
W. gave multiple accounts of what happened during the argument. Her statement to a police officer, that same night, was the most detailed — and the most incriminating of defendant. In it, she said that defendant beat and

APPEAL from a dispositional order of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed as modified.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed in part and remanded in part with directions.
Rosemary Meagher-Leonard for Appellant.
Bickford Blado & Botros and Andrew J. Botros for Respondent.

B.K. (Father) appeals from a family court order granting the request of L.S. (Mother), a Hungarian native, to move to Hungary with the parties’ two minor children, J.K. and K.K. The children, who are dual citizens of the United States and Hungary, were nine and seven years old at the time of the order. The court awarded Father with visitation rights and imposed conditions, known as “Condon conditions,” to ensure enforcement of the child custody order once Mother moves to Hungary with the children.
Father argues the court abused its discretion in allowing the international move because, according to Father, the court misapplied the relevant law on move-away requests and its findings are not supported by substantial evidence. Father also a

APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed in part. Reversed in part.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Stephen Green contends the court improperly admitted his statements to a California Highway Patrol (CHP) officer following a hit-and-run accident in November 2018 because he did not receive warnings required by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) before he was questioned. He further contends the court erred by awarding $102,841.71 in victim restitution when the actual amount of loss could not be determined at the time. We conclude the court did not err by admitting defendant’s statements to the CHP because it was not a custo

Defendant Santos DeJesus Portillo Guzman sexually preyed upon his daughters for a period of time. A jury found him guilty of one count of continuous sexual abuse of a child as to each daughter (Pen. Code, § 288.5, subd. (a)) and at least one additional sex crime as to each daughter. The trial court sentenced defendant to a determinate term of 10 years plus 130 years to life in prison.
In the first round of appellate briefing, defendant argued that under section 288.5, subdivision (c) (hereafter section 288.5(c)), he cannot be convicted of continuous sexual abuse and also specific felony sex offenses against the same victim when the crimes are alleged to have occurred in the same time period. He argued a specified count must be reversed as to each victim because those counts charged the lesser offense in terms of penalty as to each daughter. The People agreed.
After the matter was fully briefed, we requested supplemental briefing from the parties, asking whether, in light of People v. Go

Defendant Fabian Antwaine Scrivens committed various violent sex offenses and criminal threats against the mother of his children in August 2012. During trial prior uncharged acts against the victim and two others were admitted into evidence. A jury found defendant guilty of infliction of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), sexual penetration with a foreign object (§ 289, subd. (a)(1)), attempted forcible penetration with a foreign object (§§664/289, subd. (a)), forcible rape (§ 261, subd. (a)(2)), attempted sodomy by force (§§ 664/286, subd. (c)), and making criminal threats (§ 422), but not guilty of failure of a sexual offender to file a change of address (§ 290.013, subd. (a)). The court sentenced defendant to an aggregate term of 275 years to life plus 66 years. Defendant appeals, arguing: (1) insufficient evidence supports the attempted forcible penetration conviction; (2) battery is a lesser included offense of attempted forcible penetration; (3

A jury found defendant Kevin Joseph Flannery guilty of stalking in violation of a court order (Pen. Code, § 646.9, subd. (b); count I) and 47 counts of violating a restraining order (§ 273.6, subd. (a); counts II-XLVIII). Imposition of sentence was suspended and defendant was placed on probation for five years on the condition, among others, that he serve one year of incarceration on count I plus a consecutive year of incarceration on count II. The court stayed the imposition of sentence on the remaining counts “pending violation of probation.” He was awarded 130 days’ custody credit and 130 days’ conduct credit on count one and no presentence credit on count two. In addition, he was ordered to pay a $4,900 restitution fine (§ 1202.4), a $4,900 restitution fine suspended unless probation is revoked (§ 1202.44), a $400 Domestic Violence Fund fee (§ 1203.097, subd. (a)(5)(A)), and a $35 administrative fee.

Zachary Stein filed an action against Black Diamond Supplements, LLC, asserting a single cause of action for violation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq., as approved by voters, Gen. Elec. (Nov. 4, 1986), commonly known as Proposition 65). Stein alleged Black Diamond sells a muscle building compound that contains androstenedione, but does not give consumers a clear and reasonable warning that androstenedione is a chemical known to cause cancer. The trial court sustained Black Diamond’s demurrer without leave to amend. We reverse.

D.F. (mother) appeals from the juvenile court’s dispositional order requiring her to complete a full drug and alcohol program with aftercare and weekly testing. She contends the dispositional order must be reversed because: (1) it is unsupported by substantial evidence; (2) the drug program ordered is unduly burdensome; and (3) the order is not narrowly tailored to the circumstances giving rise to dependency. We disagree and affirm.

In 1994, a jury convicted defendant and appellant Franklin Perkins of second degree murder (Pen. Code, § 187, subd. (a)), and the trial court sentenced him to an indeterminate term of 15 years to life in state prison. In 2020, Perkins filed a petition for resentencing under section 1170.95. The trial court denied the petition, concluding Perkins was ineligible for relief because he was the actual killer. Perkins timely appealed.