CA Unpub Decisions

Defendant Richard P. (father) appeals a juvenile court jurisdictional order sustaining a Welfare and Institutions Code section 300 petition as to his minor children, and the court’s disposition order removing the children from his care. Father argues that the jurisdictional findings lack sufficient evidentiary support, that the court exceeded its statutory authority in removing the children from his custody, and that the removal orders are not supported by substantial evidence. We reject father’s contentions and affirm.

Defendant and appellant Clifton Hayes robbed the same restaurant on two nights within one month of each other. He was convicted of kidnapping for purposes of robbery (Pen. Code, § 209, subd. (b)) (count 1) and second degree burglary (§ 211) (count 10) for the first robbery. The second episode resulted in his conviction of nine other offenses. Defendant challenges the sufficiency of the evidence to support the asportation element of the kidnapping for purposes of robbery conviction and contends the trial court erred in imposing two consecutive life terms with the possibility of parole instead of one life term with the minimum parole eligibility date doubled.
There was no substantial evidence of the asporation element of kidnapping for purposes of robbery (count 1). Accordingly, we reduce defendant’s count 1 conviction to the lesser included offense of felony false imprisonment in violation of section 237, subdivision (a) and remand for resentencing.

Almost 16 years after pleading guilty, Esther Solis sought to vacate her plea under Penal Code section 1192.5. On appeal, it is not disputed that section 1192.5 applies only to felonies and that Solis pled no contest to a misdemeanor. The trial court reached that conclusion and found that Solis’s declaration conflicted with provisions in her signed plea agreement and was not credible. On appeal, Solis argues that the Supreme Court’s recent case of People v. Patterson (2017) 2 Cal.5th 885 (Patterson) requires reversing the denial of Solis’s motion to vacate her plea. Patterson, however, concerned a motion under section 1018, which is timely only if brought within six months of judgment or of a suspended sentence. Solis fails to show she preserved the only issue on appeal. And, in any event Patterson and section 1018 do not apply to this case. We affirm the order denying Solis’s petition to vacate her plea.

Sean Greenshields appeals an order granting a petition by the State Department of State Hospitals (DSH) to compel him to submit to involuntary treatment with psychotropic medication. We affirm.

Appellant Gabriel Jason Cavazos appeals from his convictions on multiple sexual offenses against three victims and his sentence to eleven years four months in state prison, plus two years six months in county jail. He argues that he received ineffective assistance of counsel at sentencing, the trial court erred in denying his motion to continue sentencing, the trial court failed to give unanimity instructions sua sponte on several counts, and his sentence on several counts violated Penal Code section 654. For the reasons that follow, we reverse Cavazos’s conviction on count three and remand for resentencing.

Following a jury trial, defendant Miguel Servin Arias was found guilty of five sex offenses, specifically two counts of a lewd or lascivious act upon a child under 14 years old (Pen. Code, § 288, subd. (a)) (a lesser included offense of count 1 and count 5 as charged), two counts of a forcible lewd or lascivious act upon a child under 14 years old (Pen. Code, § 288, subd. (b) (1)) (counts 2 and 3), and forcible sexual penetration (§ 289, subd. (a)(1)) (count 4). The victim of count 5 was Zoe Doe, and the victim of the other four offenses was Alana Doe. As to all offenses, the jury found true that defendant had been convicted of an enumerated sex offense (§ 667.61, subd. (c)) against more than one victim within the meaning of 667.61, subdivisions (b) and (e). The trial court sentenced defendant to five consecutive, 15-years-to-life terms pursuant to section 667.61, subdivision (b), commonly known as the One Strike law, for an aggregate prison term of 75 years to life.

A jury convicted defendant Aaron Dodge of several drug offenses and acquitted him of several others. The jury found him guilty of possession for sale of LSD (Health & Saf. Code, § 11378; unspecified statutory references are to this code); transportation for sale of LSD (§ 11379); and possession of hydrocodone (§ 11350). He contends the trial court erred by admitting into evidence a photograph of an e-mail found on his cell phone, and by admitting evidence that he had pills in his possession which police initially believed were the controlled substance Ecstasy, but later determined were not. Finding no error, we will affirm the judgment.

Defendant Lae Thong Thongphun was convicted of involuntary manslaughter and assault on a child under eight years old with force likely to produce great bodily injury resulting in death. The victim was two-year-old Fox Chau Le (Fox), who died of blunt force trauma to his abdomen while in defendant’s care. Defendant argues three issues in this appeal: first, that his confrontation rights were violated because a pathologist who did not conduct the autopsy was permitted to testify, and Fox’s death certificates were admitted into evidence; second, that the prosecutor committed prejudicial misconduct by stating, during closing argument, that Fox’s injuries showed he had been “tortured;” and third, that defendant’s sentence of 50 years to life is unconstitutional. None of these contentions have merit, and accordingly, we affirm the judgment.

Petitioner Tammy W. (mother) seeks an extraordinary writ from the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing as to her now 14-year-old daughter, A.W. On September 20, 2017, at an uncontested 12-month review hearing (§ 366.21, subd. (f)(1)), the court terminated mother’s reunification services and set a section 366.26 hearing to implement a permanent plan. Mother was not present at the hearing and her court-appointed trial counsel could not account for her absence. The court, not finding good cause to continue the hearing, issued its ruling.

Appointed counsel for defendant Sarah Lavenia Willis asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising her of her right to file a supplemental brief within 30 days of the date of filing of the opening brief. The letter was returned and marked as not forwardable. On review, we find no arguable issues.

Defendant was convicted of committing a lewd act on a child under 14 and simple battery. The victim did not report the incident until some 10 months after it allegedly occurred. An expert testified about Child Sexual Abuse Accommodation Syndrome (CSAAS), which concerns “common stress reactions of children who have been sexually molested … which also may include the child’s failure to report, or delay in reporting, the abuse.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.)
During trial, evidence was admitted that defendant had committed uncharged crimes, including other instances of child molestation and possession of child pornography.
Defendant challenges the admission of the uncharged crimes evidence and related jury instructions, as well as the testimony concerning CSAAS. We reject his claims. Both parties agree that the abstract of judgment contains minor clerical errors, and we direct that the abstract of judgment be amended accordingly. We otherwise affirm the

The juvenile court sustained an allegation that defendant and appellant, M.T. (Minor), resisted, obstructed, or delayed a peace officer in the performance of his duties. (Pen. Code, § 148, subd. (a)(1); count 1.) The court declared Minor a ward of the court and placed her on formal probation under various terms and conditions.
After Minor’s counsel filed a notice of appeal, this court appointed counsel to represent her on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying two potentially arguable issues: (1) whether sufficient evidence supports the court’s true finding; and (2) whether the probation conditions are unlawful. We affirm.

In this matter we reviewed the petition, concluded it appeared to have merit when construed as a mandamus petition, and requested an informal response from respondent. Continuing to find merit in the petition, we then appointed counsel for petitioner, set an order to show cause, and received and considered a return and traverse. For the reasons set forth below, we conclude a writ of mandate must issue.

Two issues in this malicious prosecution action were bifurcated and tried first: (1) whether defendants had probable cause to file and maintain the collection action (the probable cause element); and (2) whether the collection action was terminated in favor of Pasternack (the favorable termination element). If necessary, the malice and damages elements of Pasternack’s malicious prosecution claim were to be tried later. Following the trial, the jury made 16 factual findings concerning what defendants—McFarland, McCullough, and McCullough APC—knew and believed at the time they filed the collection action in March 2007 and at later points through the time the collection action was voluntarily dismissed in January 2009. (CACI No. 1501.) After the jury returned its factual findings, the court made additional factual findings and found numerous facts to be undisputed.