CA Unpub Decisions

Gary Finn for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Cesar Rafael Quiroz-Gomez moved to withdraw his no contest plea to possessing marijuana for sale on the ground he wasn’t advised he could be excluded from admission to the United States. The trial court denied the motion. Defendant appeals. We reverse the order and remand for further proceedings.

Defendant T.H. filed a petition requesting that the juvenile court reduce his adjudication for felony grand theft (Pen. Code, § 487, subd. (c)) to a misdemeanor pursuant to section 1170.18, the resentencing provision of Proposition 47. In his petition, T.H. also asked the court to order that a DNA sample he provided at the time of his adjudication be expunged from the state’s DNA databank. The court reduced T.H.’s grand theft adjudication to a misdemeanor but declined to order expungement of his DNA from the state databank. On appeal, T.H. challenges the latter ruling, contending section 1170.18 requires expungement. We affirm.

On March 16, 2012, in superior court case number SS142236A, defendant Adrian Murrietta pleaded no contest to possession of cocaine in jail (Pen. Code, § 4573.6). On April 16, 2012, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years. On February 9, 2015, the probation department filed a notice of violation of probation, which specified that defendant had been arrested for violations of Penal Code sections 289, subdivision (a), 220, and 261, subdivision (a)(2). On May 14, 2015, the trial court found that defendant violated the terms of his probation.

Sean O. (father) appeals from dispositional orders and challenges the juvenile court’s order denying him reunification services with his three-year-old daughter, Kaitlyn, pursuant to Welfare and Institutions Code section 361.5, subdivision (e)(1). Father contends the order must be reversed because: (1) he was denied his statutory and due process right to notice of the recommendation by the Fresno County Department of Social Services (Department) that he be denied reunification services; (2) the juvenile court failed to make an oral or written finding of detriment; and (3) the order is not supported by substantial evidence. Father further contends the Department failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). While we reject father’s contention that the juvenile court erred in denying him reunification services, we agree the Department failed to comply with ICWA’s notice requirements. Accordingly, we will affir

While serving a sentence at Avenal State Prison for possession of child pornography, defendant Curtis Dee Holford used a contraband cell phone to contact D.G., the mother of his four-year-old son, and persuaded her to engage in a number of sexual acts with the child, some of which she photographed and sent to defendant’s cell phone. Based on two such acts, defendant was convicted by jury of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and committing a lewd or lascivious act on a child under the age of 14 years (id., § 288, subd. (a)). In a bifurcated proceeding, the trial court found defendant was previously convicted of a strike offense within the meaning of the three strikes law (id., §§ 667, subds. (b)-(i), 1170.12) and served two prior prison terms (id., § 667.5, subd. (b)). The trial court sentenced him to serve an indeterminate prison term of 30 years to life plus a consecutive determinate prison term of 23 years.

Appellant Jeffrey Elias Hernandez was charged with rape (Pen. Code, § 261, subd. (a)(2)) and kidnapping (§ 207, subd. (a)). It was further alleged that appellant had suffered a prior strike pursuant to sections 667, subdivisions (b)–(j) and 1170.12, as well as a prior conviction pursuant to section 667, subdivision (a)(1).
The information was eventually amended to add a third count alleging abuse of a dating partner (§ 273.5, subd. (a)).
Appellant pled no contest to the third count and admitted the prior strike. The first two counts were dismissed. The trial court sentenced appellant to eight years in state prison by imposing the upper term of four years and doubling it pursuant to sections 667, subdivisions (b)–(j) and 1170.12. Appellant filed a notice of appeal on the basis of his sentence or other matters occurring after the plea that do not affect the validity of the plea.

A jury convicted defendant and appellant Brian Mendez (defendant) of first degree felony murder, carjacking, and attempted robbery. The evidence at trial established defendant and his girlfriend Misty Ruiz planned to steal victim Efrain Perez-Ortiz’s money; when he resisted, defendant knocked Perez-Ortiz to the ground, pummeled him, took Perez-Ortiz’s truck, and drove over his body, killing him. Defendant does not challenge the sufficiency of the evidence used to convict him, but he does ask us to decide a host of instructional error claims, many of which were not raised during the proceedings below.

R.G. appeals from the imposition of a pre-adjudication restraining order entered at the detention hearing in a juvenile court proceeding pursuant to Welfare and Institutions Code section 602. The two-count petition filed against appellant, a 17 year-old minor, alleged a criminal threat in violation of Penal Code section 422, subdivision (a), and a battery on school, park, or hospital property in violation of Penal Code section 243.2, subdivision (a). Appellant contends he did not receive adequate notice prior to the detention hearing of the People’s intent to pursue a formal restraining order. He further asserts that the restraining order, which prohibits him from having any contact with his victim, is unsupported by substantial evidence. We disagree and affirm.

Plaintiff and appellant Julian Casas (Casas) sought a writ of mandate to compel defendants and respondents City of Baldwin Park (the City) and City Manager Vijay Singh (collectively, defendants) to produce records pursuant to the California Public Records Act (CPRA or “the Act”). The trial court issued the writ, requiring production of certain specified records. Disputes then arose between Casas and defendants about whether defendants had produced all responsive records, and the trial court entertained two motions to compel compliance with the writ it issued. We consider whether the trial court was correct when it eventually determined defendants established they had produced records as ordered. We also consider Casas’s contention that the trial court erred in taxing the entirety of the costs he claimed in connection with prevailing on his petition for a writ of mandate.

Defendant Edward Dajuan Gilmore was charged with robbing a hotel and stealing a charitable donation box from a gas station convenience store. Defendant pled no contest to petty theft of the donation box but proceeded to jury trial on the robbery count. The trial court denied defendant’s motion to exclude reference to the donation box. The gas station manager, called as a witness to establish defendant’s identity as the hotel robber, mentioned the donation box three times during his testimony. Defendant contends his conviction for the hotel robbery must be reversed because the admission of evidence pertaining to his theft of the donation box violated Evidence Code sections 352 and 1101, subdivision (a). We affirm.

Defendant John Martin Perez appeals from his convictions on one count of continuous sexual abuse of a child in violation of Penal Code section 288.5, subdivision (a) and one count of lewd and lascivious acts upon the same child in violation of Penal Code section 288, subdivision (a). Defendant argues the convictions were obtained in violation of section 288.5, subdivision (c), which prohibits dual convictions for continuous sexual abuse and an additional felony sex act against the same victim during the same time period. We agree with Defendant that both convictions cannot stand.

Plaintiff and appellant Diane Vincent appeals from a judgment following the trial court’s ruling granting the summary judgment motion of defendants Ralphs Grocery Company, The Kroger Co., and Food 4 Less of California, Inc. Vincent brought a variety of employment claims against Ralphs, where she worked before her employment was terminated in March 2012. The claims included allegations that Ralphs discharged her because of her sexual orientation (i.e., heterosexual) and in retaliation for her assertion of her right to medical leave. She also alleged that Ralphs had improperly treated her as a management employee who was exempt from statutory and administrative rules governing overtime pay and breaks.

Plaintiff and appellant Brett Voris (Voris) appeals a judgment entered following the grant of a motion for judgment on the pleadings brought by defendant and respondent Greg Lampert (Lampert). Voris also appeals a postjudgment order awarding attorney fees to Lampert.
The essential issue presented is whether Voris’s causes of action for conversion of wages and conversion of stock were well pled.
We conclude unpaid wages do not give rise to a cause of action for conversion. However, Voris’s claims for conversion of stock are well pled. Therefore, we reverse the judgment on the pleadings with respect to Voris’s stock conversion claims. We also reverse the attorney fee award because Lampert is not the prevailing party at this juncture.

Betty Louza brought a cross-complaint for assault against Danny Emerson alleging that after she rear-ended him, Emerson got out of his car and approached her with what appeared to be a gun, putting her in fear for her safety. Emerson tendered Louza’s cross-complaint to his automobile and homeowner’s insurers, Farmers Group, Inc., Farmers Insurance Exchange, and Mid Century Insurance Company (together defendants). Defendants declined to provide Emerson a defense and so he brought the instant action alleging breach of the insuring agreements and bad faith.
The trial court granted defendants’ summary judgment motion and Emerson appeals. We conclude there is no dispute of material fact with the result that, as a matter of law, there was no potential for coverage for Emerson’s assault on Louza. Accordingly, we affirm the judgment.