CA Unpub Decisions

Appellant Rafael Meza was convicted of sex and sodomy with a child under age 10 in violation of Penal Code[1] section 288.7, subdivision (a), continuous sexual abuse of a child in violation of section 288.5, subdivision (a) and aggravated sexual assault of a child (sodomy) in violation of section 269, subdivision (a)(3). The trial court sentenced appellant to 65 years to life in prison, plus a determinate term of 16 years in prison.
Appellant appeals, contending the trial court erred prejudicially in admitting his interviews with police. Respondent contends the abstract of judgment must be corrected to reflect appellant’s actual conviction on count 4 and the correct number of days of presentence custody credits. We correct the abstract of judgment and affirm the conviction on all other grounds.

Appellant Michael Vincent Estrada was convicted of shooting at an inhabited building in violation of Penal Code[1] section 246, shooting from a motor vehicle in violation of section 12034, subdivision (c), assault with a semiautomatic firearm in violation of section 245, subdivision (b), evading an officer in violation of Vehicle Code section 2800.2, subdivision (a), possession of a firearm by a felon, and carrying a loaded firearm as a gang member in violation of section 12031, subdivision (a)(1). The jury found true the allegations that the shootings and assault were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(B), and that the section 246 violation was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(4). The jury also found true firearm allegations pursuant to sections 12022, subdivision (a)(1) and section 12022.5, and a great bodily injury allegation pursuant to section 12022.55. The trial court found true the allegations that appellant had suffered a prior serious felony conviction within the meaning of sections 667, subdivision (b) through (i) and 1170.12 (the “Three Strikes” law) and section 667, subdivision (a), and also the allegation that appellant served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a term of 35 year to life plus four years and eight months in state prison.
Appellant appeals from the judgment of conviction, contending the trial court erred in denying his motion for reappointment of counsel, and also contending there is insufficient evidence to support the true finding on the gang enhancement. Appellant further contends the trial court erred in instructing the jury on the elements of the gang enhancement allegation. We affirm the judgment of conviction.

The California Department of Corrections and Rehabilitation (the Department) dismissed real party in interest Regina Tucker from her position as an academic teacher at Wasco State Prison (Wasco) because she violated the Department’s policy regarding contact with an inmate whom she initially disclosed as a “personal friend,” but with whom she corresponded, and with whom she was romantically involved, before, during, and after his incarceration. Tucker contested her dismissal, and an administrative law judge (ALJ) issued a proposed decision sustaining Tucker’s dismissal. The State Personnel Board (Board) adopted the ALJ’s proposed decision.
The Department appeals from the trial court judgment granting Tucker’s petition for writ of administrative mandamus seeking to overturn the Board’s decision to sustain her dismissal.[1] Inexplicably, the trial court’s order, upon which the judgment is based, refers to a different case involving a “thirty percent penalty given to petitioner,” and ordering repayment of overpaid benefits.[2]
Upon our review of the administrative record and superior court proceedings, we conclude the judgment entered was in error, the Board’s decision is supported by substantial evidence, and Tucker’s dismissal was not an abuse of discretion. We therefore reverse the judgment with directions to deny the petition and to reinstate the Board’s decision to dismiss Tucker.

Appellant was charged with seven offenses arising from incidents occurring at two separate locations on the same day, one on West 19th Street in San Pedro and the other on Magnolia Street. One charge (count 3) was dismissed on the prosecution’s motion in the interests of justice. Of the remaining counts, appellant was found not guilty by the jury of all charges except count 6, felony vandalism at the residence at West 19th Street. That charge arose out of an altercation with his former girlfriend, Kameron C. We therefore confine our review and discussion to the single count on which appellant was convicted and sentenced.
Kameron C. testified that she began dating appellant in 2004 and continued to see him off and on until sometime in 2010. He is the father of her five-year-old twin daughters. She and appellant did not stay in contact after ending the relationship and Kameron did not consider him to be a friend.

Appellant Gabriel Cervantes Valencia appeals from the judgment entered following his convictions by jury on count 1 – second degree robbery (Pen. Code, § 211) with a principal personally using a firearm (Pen. Code, § 12022.53, subds. (b) & (e)(1)), count 2 – possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and count 3 – dissuading a witness by force or threats (Pen. Code, § 136.1, subds. (b)(1) & (c)(1)) with findings as to each offense the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), appellant was released on bail or on his own recognizance when he committed the offense (Pen. Code, § 12022.1), he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and he suffered a prior serious felony conviction (Pen. Code, § 667, subd. (a)). The court sentenced appellant to prison for a total of 28 years four months. We modify the judgment and, as modified, affirm it with directions.

Defendant Daniel Trujillo contends his convictions of attempted voluntary manslaughter and discharge of a firearm with gross negligence must be reversed because two jurors prejudged the case, violating his constitutional right to trial by an impartial jury. His claim is based on an affidavit from another juror stating, among other things, that shortly after deliberations began, two jurors (one of them the foreperson) “both stated that they knew [defendant] was guilty from the minute they walked into the courtroom, and decided he was guilty before the trial even started.” The trial court refused to grant a new trial based on jury misconduct, finding the allegations in the juror affidavits did not present evidence of misconduct and reflected bias in favor of defendant.
We order a modification of the judgment and corrections to the abstract of judgment that are undisputed by the parties, and otherwise affirm the judgment.

After eight years of "incessant, unending" child custody litigation, the trial court awarded Shelley Chilton (Mother) primary physical custody of the parties' oldest child and allowed Michael Chilton (Father) to move to Florida with the younger child. Mother contends the court abused its discretion by refusing to hold an evidentiary hearing under Family Code section 217.[1] We conclude that the court established good cause to deny the hearing, and that even if it did not, Mother has failed to demonstrate a reasonable probability that an evidentiary hearing would have changed the result. We affirm.

Jose Luis Rios appeals his conviction, by jury, of sexual penetration by a foreign object of a person under 16 years of age (Pen. Code, § 289, subd. (i))[1], and one misdemeanor count of sexual battery. (§ 243.4, subd. (e)(1).) The trial court sentenced appellant to prison for the middle term of two years for the section 289 violation and a concurrent term of 180 days for the misdemeanor conviction. Appellant contends the trial court erred when it failed to hold a hearing on his motion, pursuant to Evidence Code section 782, to introduce evidence that the 15-year old complaining witness had not yet disclosed her pregnancy to her parents when she accused appellant of these offenses. He further contends the trial court erred when it instructed the jury in terms of CALCRIM No. 361. Finally, appellant contends statements he made to police before he was advised of his Miranda[2] rights should have been excluded from evidence. We affirm.

Mother Donna S. (mother) appeals from the dependency court’s order that she be given monitored visitation with her three children, contending that she should have been allowed unmonitored visits instead. Based on her recent brushes with the law involving prostitution and drunken driving, we conclude that the trial court did not abuse its discretion. Father Devin S. (father) has also appealed from that order, but his appointed counsel filed a brief under In re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.) that raised no issues. We affirm as to him as well.

In this appeal, a mother and father challenge the dependency court’s jurisdictional orders as to one of their children. The dependency court found the father had sexually abused his elder daughter (now 19) on numerous occasions from the age of nine forward. In addition, when she was 12 years old, a 47-year-old family friend had sexually molested her for a period of about 18 months. Thereafter, the court found, she demonstrated severe emotional damage through conduct including highly sexualized behavior, lying, defiance and further claims of sexual abuse, but her parents failed to provide her with appropriate medical care and psychological treatment which placed her at substantial risk of further harm. The mother claims the evidence does not support the dependency court’s order as to her and she was deprived of due process. The father’s challenge is limited to meritless attacks on his daughter’s credibility. We affirm as to the sexual abuse count involving the father. However, we agree with the mother that the dependency court’s creation of a new count as to both parents for failure to provide appropriate medical care and treatment following the discovery of another perpetrator’s sexual abuse of their daughter violated due process. Therefore, we reverse as to this count (as to both parents) and remand for further proceedings.

J.R. & A.R. Services, Inc. (J.R.) appeals from a judgment entered against it following the trial court’s sustaining of the demurrer of KOP Holdings, Inc. (KOP) to the first amended complaint (FAC) and granting of the motion for judgment on the pleadings of the City of Los Angeles (the City) regarding the FAC. J.R. contends that the trial court erred because J.R. stated facts sufficient to constitute the causes of action pleaded in the FAC: the taking of property without due process of law, negligence and declaratory relief asserted against the City; “Restitution, Quasi-Contract Recovery,” conversion and declaratory relief asserted against KOP.
We hold that the trial court did not err in granting the City’s motion for judgment on the pleadings as to all of the causes of action asserted against it, and in sustaining KOP’s demurrer as to the cause of action for declaratory relief; and the trial court erred in sustaining KOP’s demurrer as to the causes of action “Restitution, Quasi-Contract Recovery” and conversion. We reverse the judgment, and remand the matter to the trial court to provide J.R. with an opportunity to amend the FAC.

Defendant and respondent Victoria Zamora was employed as vice president of plaintiff and appellant Monarch Consulting, Inc. Defendant resigned from her position in May 2011. After leaving plaintiff’s employ, defendant went to work for one of plaintiff’s competitors. Plaintiff learned of defendant’s new position and sent a cease and desist letter to her and her new employer, asserting defendant had breached the nondisclosure agreement she signed with plaintiff. Several months later, plaintiff sued defendant for breach of contract and common counts based on defendant’s alleged failure to repay loans plaintiff had extended to her during her tenure. Defendant filed a cross-complaint against plaintiff and its CEO, Stuart Grant, for libel, failure to pay wages, and related claims.
Plaintiff and Grant filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 (section 425.16) seeking to dismiss the libel cause of action. Before the hearing on the motion, defendant filed a nonopposition to the motion, as well as a first amended cross-complaint dismissing the libel cause of action and Grant as an individual cross-defendant.

A jury found defendants and appellants Jose Cruz Garcia, Jr. and Jesus Daniel Navarro guilty of attempted murders and found true gun and gang allegations. On appeal, defendants contend that their trials should have been severed and that the evidence is insufficient to support findings that the attempted murders were premeditated, willful, and deliberate. Garcia makes the additional contention that the evidence is insufficient to support his conviction for the attempted murder of Marvin Zelaya.[1] We reject these contentions and affirm the judgment.

In an information filed by the Los Angeles District Attorney, defendant and appellant Antwone Markeys Lovest was charged with kidnapping to commit robbery (count one; Pen. Code, § 209, subd. (b)(1)),[1] robbery (count two; § 211), criminal threats (count three; § 422), burglary (count four; § 459), and grand theft (count seven; § 484e, subd. (d)). As to counts one through three, it was further alleged that appellant personally used a deadly and dangerous weapon in the commission of the offenses within the meaning of section 12022, subdivision (b)(2). Appellant pleaded not guilty and denied the special allegation.
Trial was by jury. The jury found appellant guilty of counts two, three, four, and seven, but was unable to reach a verdict on count one. It found the deadly weapon allegation true as to counts two and three. Retrial on count one was by jury. On retrial, the jury found appellant guilty on count one and found the section 12022, subdivision (b)(1), allegation to be true.
The trial court denied probation and sentenced appellant to life in state prison plus five years eight months. The sentence was composed of a life term on count one plus one year for the weapon enhancement, a consecutive three-year term on count two plus one year for the weapon enhancement, and a consecutive eight-month term on count seven. Appellant was ordered to pay restitution and assessments. He was granted 1,250 days of presentence custody credit.
Appellant timely filed a notice of appeal. On appeal, he argues: (1) Section 654 requires a stay of sentence on counts two, three, and seven because all of the offenses were within a single, continuing course of conduct for the single purpose of taking money from the victim; (2) The sentencing in violation of section 654 violates his right to due process and the prohibition against double jeopardy; (3) The trial court erred in denying an award of presentence conduct credits; (4) The trial court’s imposition of a $240 restitution fine and a $240 parole revocation fine reflects an intent to impose the minimum fines; because the statutory minimum at the time of the offense was $200, the fines must be corrected.
We agree with the parties that appellant’s sentence on count two must be stayed. We also agree that appellant should have been awarded 1,438 days of presentence custody credit. Therefore, we correct the sentence. Upon remand, we direct the trial court to modify the abstract of judgment to stay appellant’s sentence on count two and award him 1,438 days of presentence custody credit. In all other respects, the judgment is affirmed.