CA Unpub Decisions

A jury convicted appellant David Charles Macon, Jr., of second degree robbery for acting as the getaway driver while two of his associates committed an armed robbery of a gas station. He was sentenced to 39 years to life in state prison. At the time of the robbery, appellant was wearing a Global Positioning System (GPS) tracking device on his ankle. He contends (1) the trial court erred in admitting the GPS records of his whereabouts because the prosecutor failed to lay a proper foundation under Evidence Code section 1280 and because the GPS records were testimonial hearsay; (2) the trial court improperly commented on his right not to testify; (3) the trial court improperly admitted a police officer’s lay opinion; (4) his motion for a mistrial should have been granted; and (5) the prosecutor made improper comments during rebuttal argument. We disagree and affirm the judgment.

Appellants B.O. (Mother) and T.O. (Father) challenge the termination of their parental rights to their three sons. Because there is substantial evidence that the three boys were adoptable, exceptions to adoption were both not established and not raised, and the juvenile court had sufficient information about the boys’ wishes before making its decision, we affirm.

Defendant John Amoroso pleaded no contest to a domestic violence charge. At his sentencing hearing, the trial court placed him on probation and, among other things, imposed a $1,200 restitution fine, a $500 domestic violence fee, and a $90 criminal justice administrative fee as conditions of probation. Defendant argues that his counsel was ineffective because she failed to request an ability to pay determination despite his disability and financial status. We disagree and affirm.

Janice Lynn Smith appeals from an order revoking and reinstating her probation on modified terms for failing to pay victim restitution for seven months. Smith contends there was no substantial evidence that she willfully violated her probation, since the undisputed evidence was that the county collections department could not accept her restitution payments for that period due to computer issues. We will reverse the order.

A jury convicted Michael A. Apolinario, Jordy Diego Bernal, and Daniel Garcia (collectively, defendants) of active street gang participation (Pen. Code, § 186.22, subd. (a)) and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The jury found defendants committed the vehicle theft for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). In addition, the jury convicted Apolinario of felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury convicted Garcia of assault with a firearm on a peace officer (§ 245, subd. (d)(1)) and found he personally and intentionally used a firearm in the commission of that crime (§ 12022.53, subd. (c)). The jury also found true Apolinario’s prior conviction allegations. The trial court found true the allegations that Apolinario had prior strike convictions, including a Texas conviction (§ 667). The court sentenced defendants to state prison.
Defendants

In accord with a plea agreement, defendant Danny Rey Bosquez pleaded no contest to assault with a firearm; assault by means of force likely to produce great bodily injury; second degree robbery; carrying a loaded firearm; battery for the benefit of a street gang; and attempting to dissuade a witness. He also admitted gang and firearm enhancements, and he admitted he had been released from custody on bail at the time of the offenses. The trial court imposed a total term of 10 years eight months as contemplated by the plea agreement.
Bosquez raises two claims on appeal. First, he contends we must vacate his conviction for carrying a loaded firearm because the transcript of the plea hearing shows he never pleaded guilty or no contest to this count. We conclude this claim is without merit because, among other things, Bosquez filed a sworn declaration stating he entered a plea of no contest in open court.

Defendant Amber Rennea Ankney was charged by information with one count of aggravated assault (Pen. Code, § 245, subd. (a)(1)), and that she personally inflicted great bodily injury during the commission of the assault (§ 12022.7, subd. (a)). The information also alleged defendant had a prior strike conviction and two prison priors. A jury found defendant guilty on the aggravated assault charge, but found the great bodily injury enhancement not true. In a bifurcated bench trial, the court found the alleged prior convictions were true. The court granted the People’s motion to dismiss one of the prison priors, granted defendant’s motion to strike the punishment for the prior strike pursuant to section 1385 and struck the remaining prison prior for sentencing purposes only. The court sentenced defendant to a state prison term of seven years, comprised of the low term of two years for the aggravated assault and a consecutive five years pursuant to section 667, subdivision (a)(1

Plaintiff Khyber Zaffarkhan appeals from the trial court’s entry of judgment in favor of defendants Justin Domesek and Greg Cherry in the fallout from a failed software startup company that Zaffarkhan, Domesek, and another mutual acquaintance, Scott Martin, formed in June 2012 and dissolved in August 2013. Before forming the company, Martin and Domesek developed a prototype version of a software application aimed at helping doctors manage patient medications to prevent fraud and prescription drug abuse. They later brought Zaffarkhan aboard because, in addition to being a medical doctor like Martin, he had computer programming experience. The trio formed Prescription Diversion Solutions, Inc. (PDS), but within 14 months, Martin and Domesek decided not to continue working with Zaffarkhan, whom Domesek claimed misrepresented his programming ability and contributed little to the company.

Bishay appeals from the trial court’s restitution orders following his convictions for theft, forgery, and recording a forged reconveyance deed. In a separate appeal, Bishay challenges his conviction and sentence. We address those issues in a companion decision, where the judgment has been affirmed in part, reversed in part, and remanded for resentencing (People v. Bishay (May 21, 2018, G053337) [nonpub. opn.]). In addition, Bishay has also filed a petition for writ of habeas corpus, which we have denied in a separate order (In re Bishay (May 21, 2018, G054704) [nonpub. order]). We have previously granted Bishay’s request for judicial notice of the records in all these related matters. (Evid. Code, §§ 452, subd. (d)(1) & 459, subd. (a).)

5 Avalon Vista, LLC (Avalon Vista), and 16 Skyridge, LLC (Skyridge) (collectively referred to as AVS, unless the context requires otherwise), appeal from a judgment in favor of Ahmad Tajik (Tajik) and Tajik & Associates, Inc. (TA) (collectively referred to as TA, unless the context requires otherwise) on its cross-complaints and AVS’s complaints. AVS argues the following: (1) the statement of decision was inadequate; (2) insufficient evidence supports the judgment; and (3) the trial court unduly limited its right to cross-examine witnesses. None of its contentions have merit, and we affirm the judgment.

Appellant Daniel G. is the biological father of now four-year-old Hazel G. On October 31, 2017, the juvenile court terminated his parental rights as to Hazel (Welf. & Inst. Code, § 366.26) and he appealed. After reviewing the juvenile court record, Daniel’s court-appointed counsel informed this court she could find no arguable issues to raise on Daniel’s behalf. This court granted Daniel leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
Daniel filed a letter in which he objects to the termination of his parental rights, claims his trial attorney was ineffective and he did not know he could visit Hazel and denies refusing to attend a court hearing.
We conclude Daniel failed to address the termination proceedings or set forth a good cause showing that any arguable issue of reversible error arose from the termination hearing.

S.K. (mother) appeals from the juvenile court’s jurisdiction and disposition orders declaring her twin daughters K.K. and A.K. (together referred to as the minors or the girls) as dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (d) . We affirm the orders.

Appellant Paulo Nuno Gonzales appeals from the denial of his request to reduce his felony receiving stolen property conviction to a misdemeanor. (Pen. Code, § 17, subd. (b)). On appeal, Gonzales contends: (1) the court abused its discretion when it denied his request to reduce this conviction to a misdemeanor; and (2) the court misunderstood its discretion in ruling on his request. We affirm.

William Fraire was among six individuals charged with numerous offenses that occurred in Madera County in January of 2013. He pled guilty to attempted second degree murder, robbery, and criminal street gang activity, as well as a special allegation that the offenses were committed for the benefit of a criminal street gang and a use of a firearm allegation. In exchange, he received a 26-year prison sentence.
On appeal, Fraire, who was 14 years old at the time of the offenses, argues for retroactive application of the Public Safety and Rehabilitation Act of 2016 (Proposition 57.) We will conditionally reverse and remand for further proceedings.