CA Unpub Decisions

These juvenile dependency appeals and related petitions for extraordinary writ review under Welfare and Institutions Code section 366.28, subdivision (b)(1) involve the efforts by two-year-old A.K.'s paternal grandmother, Sharon N., and paternal aunt, S.N., to prevent her adoption by her long-term caregivers and de facto parents, and to gain placement of the child with them.

J.C. (Father) and C.C. (Mother) appeal an order denying in part Father's petition for disclosure of their daughter's (J.C.) juvenile case file pursuant to Welfare and Institutions Code section 827. Father seeks his daughter's mental health records for use in a separate criminal case pending against Father, arising from the incident that brought daughter into protective custody. Father contends the juvenile court erred by: (1) denying his request for J.C.'s military mental health records without conducting an in camera review to determine whether it was necessary or appropriate to release those records to him; and (2) refusing to conduct an in camera review of J.C.'s military mental health records based on its conclusion that the records were protected by the psychotherapist-patient privilege. Mother joins in Father's arguments.

Defendant James Earl Williams appeals from a judgment revoking his probation. The court based its ruling on evidence adduced at a preliminary hearing on an unrelated case, indicating that Williams received stolen property and possessed methamphetamine. He argues that his Fourteenth Amendment right to due process was violated because substantial evidence did not support the court's factual findings and because the court applied an unconstitutionally low standard of proof. Defendant also contends that his Sixth Amendment rights were violated when defense counsel failed to object to the admission of certain evidence.

Anthony Perez appeals his jury-tried convictions for assault with a deadly weapon, second degree robbery (§§ 211, count 2), and resisting, delaying, or obstructing a peace officer. After finding that Perez had two prior strikes, the court sentenced him to prison for 25 years to life.
On appeal, Perez contends that the court gave incomplete instructions on antecedent assault, which was the basis of his self-defense claim. In the event we determine that the court had no sua sponte duty to give an additional antecedent assault instruction, and to avoid forfeiture of the issue on appeal, Perez contends his attorney's failure to request such an instruction constituted ineffective assistance. Perez also contends the court abused its discretion by denying his Romero motion.
We reject Perez's contentions; however, the matter must be remanded for resentencing because the record does not indicate that the court sentenced Perez on counts 2 and 3.

This is an appeal from a postjudgment order of the superior court staying the mother, P.R., from enforcing the collection of child support arrearages (unpaid support and interest) from the legal father, M.V., of the child, M.A.V. The court found that P.R. had unclean hands related to the collection of child support from M.V. and, on the basis of that finding and an exercise of the court's equitable discretion, precluded P.R from collecting the arrearages and interest. As we explain, in so ruling, the court did not abuse its discretion. Accordingly, we affirm the postjudgment order.

Following a jury trial, defendant Minh Sindey Dinh was found guilty of second degree murder and attempted murder, with enhancements for personally discharging a firearm causing great bodily injury and personally discharging a firearm causing death. He was sentenced to nine years plus 65 years to life in state prison.
On appeal, he contends: 1) the matter must be remanded to allow the trial court to exercise its discretion whether to strike the firearm enhancements; 2) restitution for tutoring services formerly provided by the victim was improper and any failure to preserve the claim regarding restitution constituted ineffective assistance of counsel; and 3) there is an error in the abstract regarding presentence credits. We shall remand for the exercise of discretion on the enhancements, order a correction to the abstract, and otherwise affirm.

Minor J. S., then nearly age 18, appeals from a disposition order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (the division) following repeated probation violations occurring both before and after the juvenile court’s contested jurisdictional finding he committed robbery, an offense qualifying him for commitment to the division. On appeal, the minor contends the division commitment was an abuse of discretion because: (1) there is not substantial evidence the commitment would benefit him; (2) the order was impermissibly based upon the unavailability of less restrictive options; and (3) there is not substantial evidence that less restrictive placements were inappropriate. The minor also complains the juvenile court failed to consider the minor’s ADHD diagnosis and special educational needs and requests correction of the disposition minute order and commitment order to reflect a maximum term of confinement of two years.

Defendant Christopher Dale Ables appeals from his conviction for nine sexual offenses committed against the young daughter of his girlfriend. He contends: (1) there is insufficient evidence of force or duress as to counts 11 (forcible lewd act against a child under the age of 14 – Pen. Code, § 288, subd. (b)) and 13 (genital penetration with a foreign object, a finger - § 289, subd. (a)); (2) the trial court abused its discretion in considering defendant’s position of trust as an aggravating factor and imposing the middle term; and (3) the trial court imposed an unauthorized sentence by issuing a no-contact order.
We conclude there is substantial evidence of force or duress as to counts 11 and 13, the trial court did not abuse its discretion in imposing the middle term, and the no-contact order was properly issued under section 136.2. Accordingly, we affirm the judgment.

Judge Thomas M. Maddock of the Contra Costa County Juvenile Court took the position that a person who was declared a ward based on conduct that was felonious when committed, which conduct could be reclassified as a misdemeanor in the wake of Proposition 47, was not entitled upon reclassification to have his collected DNA sample and genetic profile removed from the database maintained by the California Department of Justice. That decision was unanimously sustained by the California Supreme Court, which held that “Proposition 47 does not authorize that relief.” The court further held that retention of a ward’s genetic information did not improperly infringe his non-constitutional privacy rights or deprive him of equal protection. Finally, disapproving Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, the court held that the enactment of Penal Code section 299 following passage of Proposition 47 did not require a different result.

Fidencio Lupin Hernandez pled guilty to conspiracy to commit an unlawful transfer of a firearm. (Pen. Code, §§ 182, subd. (a)(1), 27545.) Hernandez also admitted the crime was committed in association with or for the benefit of a criminal street gang. (Id., § 186.22, subd. (b)(1).) Pursuant to a plea agreement, the trial court sentenced Hernandez to a total of six years. Hernandez filed a notice of appeal from the sentencing.

Mother and stepfather appeal the juvenile court’s order granting daughter’s Welfare and Institutions Code section 388 petition and ordering her removed from her parents’ custody without visitation. The court ordered visitation to be reassessed at status hearings every 45 days with input from daughter’s therapist and consideration of daughter’s latest psychiatric evaluation. The parents argue that the visitation order improperly delegated all authority to daughter’s therapist and daughter to decide whether visitation should occur. Daughter and the Department of Children and Family Services (DCFS) filed respondents’ briefs. We conclude the court’s order did not constitute an improper delegation of authority and was not an abuse of discretion, and thus affirm.

By information, defendant Jesse Nishakawa was charged with one count of first degree burglary (§ 459). It was also alleged that a person other than an accomplice was present inside the residence at the time of the burglary (§ 667.5, subd. (c)(21)), and that defendant had a prior strike conviction (§§ 667, subds. (b)-(j); 1170.12), and a serious felony conviction (§ 667, subd. (a)).
On October 5, 2016, the trial court declared defendant to be incompetent under section 1368 and suspended criminal proceedings. Defendant was returned to court from Patton State Hospital on January 17, 2017. The trial court found him to be competent and reinstated proceedings.

Isaac S. raises two discrete issues about his disposition that make a long rendition of the background unnecessary. In short, the People filed a first amended petition (petition) under Welfare and Institutions Code section 602 alleging that Isaac S. committed second degree robbery (Pen. Code, § 211; count 1), carjacking (Pen. Code, § 215, subd. (a); count 2), assault with a stun gun or taser (Pen. Code, § 244.5, subd. (b); count 3), and fleeing a pursuing peace officer’s motor vehicle while driving recklessly (Veh. Code, § 2800.2; count 4). The petition also alleged as to counts 1 and 2 that a principal was armed. (Pen. Code, § 12022, subd. (a)(1).) On July 6, 2017, the juvenile court sustained the petition and found true the firearm allegations. On September 8, 2017, the court placed Isaac S. in camp for seven to nine months and set his maximum term of confinement at 10 years. The trial court did not declare counts 3 and 4 to be felonies or misdemeanors.

A jury convicted appellant Tyrone Miles of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). The court found that he had suffered a prior felony conviction for robbery, both as a serious felony (§ 667, subd. (a)) and as a strike. (§§ 667, subds. (a)(1) & (b)-(j), and 1170.12, subd. (b)). The court sentenced him to 11 years in state prison.