CA Unpub Decisions

Defendant and appellant, Nicholas Marshall, in a plea to the court, pled guilty to three counts of first degree burglary (counts 1, 3, & 4; Pen. Code, § 459), one count of receiving stolen property (count 2; § 496, subd. (a)), and one misdemeanor count of vandalism (count 5; § 594, subd. (b)(1)). Defendant additionally admitted that, with respect to the count 3 offense, another person, other than an accomplice, was present. (§ 667.5, subd. (c)(21).) With respect to counts 3 and 4, defendant admitted he was out on bail while he committed the offenses. (§ 12022.1.) Finally, defendant admitted he had suffered a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)), a prior serious felony conviction (§ 667, subd. (a)), and a prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to imprisonment for 16 years four months.

K.H. appeals from a dispositional order in which the juvenile court found that her children were not Indian children within the meaning of the Indian Child Welfare Act (ICWA), title 25 U.S.C. section 1901 et seq., and that notice was not required. She contends the San Diego County Health and Human Services Agency (Agency) and the juvenile court did not conduct a sufficient inquiry in compliance with ICWA and Welfare and Institutions Code section 224 et seq. The Agency concedes error. We reverse the finding.

In 2010, a jury convicted Alberto Rivera, Jr. of one count of second degree murder (Pen. Code, § 187, subd. (a)), one count of attempted voluntary manslaughter (§§ 664, 192, subd. (a)), and one count of discharging a firearm into an occupied vehicle (§ 246). The jury also found true allegations that Rivera personally discharged a firearm causing death or serious bodily injury (§ 12022.5, subd. (a)).
At the original sentencing the court imposed a determinate term of four years four months (one-third the midterm) for attempted manslaughter and three years for the firearm (also one-third the midterm) consecutive to a 40-year-to-life indeterminate sentence for the murder count.

Karolyn Flannigan defaulted on her home loan payments and seeks to set aside a nonjuducial foreclosure. In her third amended complaint, she alleged, inter alia, that the assignments of a deed of trust securing the real property and the substitution of a trustee were void and that numerous statutory requirements pertaining to the foreclosure were violated. Flannigan sought rescission of the foreclosure sale, damages, and other relief.

A jury convicted Eddie Lee Thomas of assault with force likely to inflict great bodily injury (Pen. Code, § 245, subd. (a)(4); count 2) and battery (§ 242, as a lesser included offense of assault with a deadly weapon; count 1). The jury found not true allegations in count 2 that defendant inflicted great bodily injury upon the victim. Thomas admitted allegations he suffered three prior strike convictions (§§ 667, subd. (b)–(i), 668, 1170.12). The court sentenced Thomas to the upper term of four years in state prison for count 2, which was doubled to eight years as a result of his prior strike convictions. The court imposed a sentence of six months for count 1, to run concurrently with the sentence for count 2.

A jury found Frederick Justine Weekly guilty of first degree murder (Pen. Code, § 187, subd. (a)) and that Weekly personally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The trial court sentenced Weekly to a prison term of 50 years to life, consisting of a 25-year-to-life term for the murder and a 25-year-to-life term for the firearm enhancement.
Weekly contends (1) the trial court prejudicially erred in erroneously instructing the jury that it could consider evidence of Weekly's voluntary intoxication only in deciding whether Weekly acted with intent, but not in considering whether Weekly premeditated and deliberated the murder; (2) the sentence enhancement for the firearm allegation is unauthorized because the information did not plead personal use of a firearm; and (3) the abstract of judgment should be amended to conform to the trial court's order that victim restitution was to be a joint and several obligation with Weekly's

Kenneth R. Hudson appeals from an order granting the application of Kern Bluff Resources, LLC (Kern) for a preliminary injunction. Among other things, the order determined that Hudson had been terminated as an officer and manager of Kern, enjoined him from accessing Kern's monies, assets or bank accounts or from acting in any position as a Kern officer or director, and compelled him to provide an accounting. Hudson contends the trial court's findings in support of its order misapplied Kern's operating agreement, and thus the court erred by ruling Kern established a likelihood of success on the merits and granting its application. We reject these contentions and affirm the order.

A jury convicted Elizabeth J. Puckett of transportation of heroine for sale (Health & Saf. Code, § 11352, subd. (a); count 1); possession of heroin for sale (§ 11351; count 2); and importing methamphetamine into the state (§ 11379, subd. (a); count 3).
The court deemed the sentence for count 1 to be the base term, with sentences for counts 2 and 3 to be served concurrently. The court suspended imposition of the sentence and granted Puckett formal probation with terms and conditions. The court imposed a lab analysis fee under section 11372.5 in the amount of $615, consisting of $50 for each conviction, $435 in penalty assessments, and $30 for a state surcharge. The court also levied a drug program fee in the amount of $205 under section 11372.7, comprised of a $50 base fine, penalty assessments of $145, and a $10 state surcharge.

In this case, defendant and appellant Kenneth D. Tenner was convicted of rape (count 1), sexual penetration by force (count 2), and attempted forcible oral copulation (count 3). The trial court sentenced Tenner to the upper term of eight years on count 1, plus a one-year enhancement because the victim was elderly. The trial court stayed sentencing on count 2 and, relying on Penal Code sections 667.6 subdivision (c) and 667.9 subdivision (a), imposed a consecutive term of four years, plus a one-year elderly victim enhancement, on count 3.

The Fallbrook Union Elementary School District (the District) appeals from a jury verdict awarding $1,194,000 to former employee Elaine Allyn. The jury found that the District retaliated against Allyn in violation of former Labor Code section 1102.5, subdivision (c), by terminating her employment as Director of Educational Technology after she objected to reducing the retention time of the District's e mail system. Former section 1102.5, subdivision (c) prohibits retaliating against an employee for refusing to participate in an activity that would result in a violation of state or federal law.

Appointed counsel for defendant Gunner Thomas Anthony McDaniel filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Thereafter, defendant filed a supplemental brief. After reviewing defendant’s supplemental brief and the entire record, we have found no arguable error that would result in a disposition more favorable to defendant. However, we have found a sentencing error and a clerical error in the abstract of judgment that must be corrected. We will modify the judgment to correct the sentencing error and direct the trial court to prepare an amended abstract of judgment. We affirm the judgment as modified.

The juvenile court sustained a Welfare and Institutions Code section 602 petition and declared the minor M.M. a ward of the court after finding he committed misdemeanor theft (Pen. Code, § 484, subd. (a)) and misdemeanor possession of ammunition by a minor (§ 29650).
On appeal, the minor contends that the juvenile court prejudicially erred in admitting statements he made without a Miranda warning. We shall affirm.

Plaintiff Marla Gwen Hogue sought a restraining order under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) against her estranged husband, defendant Jerry Dean Hogue, in February 2016 after moving back to California from Georgia. In April 2016, defendant made a special appearance through counsel to move to quash the action for lack of personal jurisdiction. (Code Civ. Proc., § 418.10, subd. (a)(1).) The trial court granted the motion on April 27, 2016. Never having been served with notice of entry of the order, plaintiff timely filed her notice of appeal on October 21, 2016. (Id., § 904.1, subd. (a)(3); Cal. Rules of Court, rule 8.104(a)(1)(C).)
On appeal, plaintiff contends California has jurisdiction over defendant because either his conduct comes within the “special regulation” basis for specific jurisdiction, or otherwise justified specific jurisdiction as a continuing course of conduct commencing in California and thereafter directed toward Californ

A jury found defendant Brett Reid guilty of assault with a deadly weapon for hitting victim Michael C. over the head with a baseball bat outside a muffler shop. (Pen. Code, § 245, subd. (a)(1).) The jury also found true the allegation that defendant personally inflicted great bodily injury on Michael. (§ 12022.7, subd. (a).) The trial court subsequently sentenced defendant to an aggregate term of seven years in state prison.
On appeal, defendant contends the People failed to present evidence sufficient “to establish beyond a reasonable doubt that [he] was responsible for the injuries suffered by [Michael].” We conclude the eyewitness identification from Michael, the victim, and two other eyewitnesses was more than sufficient and affirm the judgment.