CA Unpub Decisions

Plaintiff Corrine Peck appeals from the judgment entered after the trial court granted the summary judgment motion of defendant Verdi Trails West, Inc. (Verdi Trails). Peck fell off her horse during a trail ride after her foot came out of the stirrup and the saddle slipped to the side. Peck appeals the judgment as to her causes of action for gross negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. She does not appeal her claim for ordinary negligence, which claim the trial court found she expressly waived when she signed a release and waiver of liability agreement.
Peck claims the trial court erred in making the factual determination that the trail guide was not grossly negligent for talking on her cell phone during the guided ride and for failing to help Peck when she started to fall off the horse. Peck claims the trial court improperly considered the cell phone records for the phone the guide was using, because they were hearsay evidence. Peck also claims the trial court erred in granting summary judgment on her negligent and intentional infliction of emotional distress causes of action.
We shall conclude that the undisputed facts were sufficient for the trial court to determine that any negligence on the part of defendant’s employee did not amount to gross negligence, and that because Peck did not object to the admission of the phone records below, she may not challenge the trial court’s ruling on that ground.
We shall affirm the judgment.

Sandra Queen Noble appeals from the judgment entered in favor of defendants and respondents Tika Smith, Phillip I. Browning, Michelle Callahan, and Los Angeles County Supervisor Zev Yaroslavsky, after the trial court sustained a demurrer without leave to amend. We affirm.

M.P. (father) appeals from the juvenile court’s jurisdiction and disposition orders finding his minor son, M.P., a dependent child of the juvenile court. Father contends that there was not substantial evidence to support the juvenile court’s jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b), (d), and (j)[1] that M.P. was at risk because of father’s sexual abuse of S.P., M.P.’s older sister. We hold that father’s appeal is nonjusticiable, and in any event, we reject father’s contention. Accordingly, we affirm.

Chris Paul Bishop appeals from a judgment entered after sentencing on a violation of probation.
Bishop was convicted of petty theft upon his guilty plea in August 2010. (Pen. Code, § 666.) The trial court sentenced him to three years in state prison, but suspended execution of the sentence and granted probation. Bishop violated the terms and conditions of his probation. He admitted that he committed a new theft in August 2010, he did not maintain regular employment, he did not pay fines and fees as ordered, and he used a controlled substance. In exchange for his admission, the court granted a motion to dismiss the new felony theft charge. The court revoked probation and ordered Bishop to return to court for sentencing in October 2011. Bishop did not appear. He appeared for sentencing in August 2012 after his arrest on a new theft charge. The court ordered execution of the sentence.
We appointed counsel to represent Bishop in this appeal. After counsel's examination of the record, he filed an opening brief raising no issues.

The jury convicted defendant and appellant Tracy Hightower of second degree commercial burglary (Pen. Code, § 459).[1] In a bifurcated proceeding, defendant admitted he had suffered a prior serious or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had served two prior prison terms (§ 667.5, subd. (b)).
The trial court denied probation and sentenced defendant to two years, doubled under the three strikes law, plus one year under section 667.5, subdivision (b), for a total of five years in state prison. The court struck defendant’s other prior prison term. Defendant was also assessed various fines and fees.
Defendant claims the trial court abused its discretion in refusing to strike his prior strike conviction for burglary. Defendant also challenges the $10 crime prevention fee and $28 penalty assessed against him.
We affirm the judgment.

Savin Seng (appellant) appeals from the judgment entered following his negotiated no contest plea to possession of a firearm by a felon. His sole contention is the trial court’s order that he pay $126 in attorney’s fees for his court appointed counsel was improper. We affirm the judgment as modified.

D. F. and his son Devin P. appeal from a dispositional order of the juvenile court. They challenge the sufficiency of the evidence supporting the court’s jurisdictional findings pursuant to Welfare and Institutions Code section 300, subdivisions (b), (d) and (j),[1] as to Devin and his sisters, Destiny P. and Deja H. Devin also claims the juvenile court failed to comply with the Indian Child Welfare Act (ICWA). We affirm the dispositional order but remand to the juvenile court with directions to order compliance with ICWA and section 224.2.

Minor Tyrone M. appeals from an order sustaining a juvenile wardship petition. (Welf. & Inst. Code, § 602 (section 602).) He contends the evidence was insufficient to support the juvenile court’s true finding on a misdemeanor charge of simple assault. (Pen. Code, § 240.)[1] We reject his contention and affirm.

Appellant Randy Fleming was convicted, following a jury trial, of one count of possession for sale of marijuana in violation of Health and Safety Code section 11359. Appellant admitted that he had suffered various prior convictions, including two or more prior serious or violent felony convictions within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). The trial court sentenced appellant to a term of 25 years to life in state prison pursuant to the Three Strikes law.
Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to suppress and there is insufficient evidence to support his conviction. Appellant also contends that the trial court abused its discretion in denying appellant's motion to strike his prior convictions and the resulting sentence constituted cruel and unusual punishment. We affirm the judgment of conviction.

The issue presented in this appeal is whether defendant and appellant Edibaldo Roman had a right to a jury trial under the Sixth and Fourteenth Amendments on the issue of victim restitution under the holding in Southern Union Co. v. United States (2012) 567 U.S.__ [132 S.Ct. 2344, 183 L.Ed.2d 318] (Southern Union).) We hold defendant waived the constitutional claim by his express request that restitution be entered in specified amounts by the trial court, and in any event, victim restitution is not punishment and is beyond the reach of the constitutional right to a jury trial.
Defendant entered a plea of no contest on March 5, 2012, to a charge of carjacking in violation of Penal Code section 215, subdivision (a). Defendant agreed to an upper term sentence of nine years in state prison. As part of the agreement, the prosecution dismissed two additional felony charges and firearm and recidivist allegations. Defendant was advised that a restitution hearing would take place on a future date. He expressly waived his right to be present at that hearing.
The restitution hearing was held on April 12, 2012. Pursuant to defendant’s request, he appeared through counsel. Defendant’s counsel advised the trial court he had met with defendant the previous day and “provided him with the documentation to support our request that the court enter” restitution in the amount of $23,238.80 as to one victim and $699.89 as to a second victim. The court ordered restitution as requested by the defense. [1]

The juvenile court sustained a January 25, 2012 petition charging minor Andrew V. with the offense of sexual battery, a violation of Penal Code section 243.4, subdivision (e)(1). The court declared minor to be a ward of the court under Welfare and Institutions Code section 602 and found the offense to be a misdemeanor. The court placed minor at home under the supervision of the probation department under various terms and conditions of probation.
Minor appeals on the grounds that the juvenile court abused its discretion in imposing a probation condition requiring minor to remain a certain distance from school grounds.

A jury convicted defendant and appellant Marcos Ahumada of criminal threats (Pen. Code, § 422) (count 1); assault with a firearm (Pen. Code, § 245, subd. (b)) (count 2); carjacking (Pen. Code, § 215, subd. (a)) (count 3); evading a peace officer (Veh. Code, § 2800.2, subd. (a)) (count 4); and vandalism (Pen. Code, § 594, subd. (a)) (count 5). In counts 1 and 2, the jury found that appellant personally used a firearm within the meaning of Penal Code section 12022.5. In count 3, the jury found that appellant personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). In count 4, the jury found that appellant drove with a willful and wanton disregard for the safety of persons and property. Appellant admitted various prior conviction allegations. The trial court sentenced appellant to state prison for a total of 44 years eight months.
Appellant appeals on the grounds that: (1) the jury was improperly given a general intent instruction relating to the evading a peace officer charge; (2) the jury was improperly given a general intent instruction relating to the criminal threats and carjacking charges; (3) the trial court should have given a unanimity instruction with respect to the assault with a firearm charge; (4) the trial court improperly allowed evidence of appellant’s gang membership, including testimony by a gang expert; and (5) there was insufficient evidence to support the guilty verdicts on counts 1, 2, and 3.
We affirm.

In a prior appeal this court reversed a judgment confirming the arbitration award for legal fees and costs in favor of Weissmann Wolff Bergman Coleman Grodin & Evall LLP (Weissmann firm) against Jasbir Singh, its former client, and remanded the matter with directions to deny the petition to confirm the award, grant Singh’s petition to vacate the award and “conduct further proceedings not inconsistent with this opinion, including, if appropriate, an order requiring binding arbitration before either a new or the original arbitrator.” (Weissmann Wolff Bergman Coleman Grodin & Evall LLP v. Singh (Aug. 23, 2011, B225813) [nonpub. opn.] (Singh I.) On remand Singh moved for an award of attorney fees incurred in the original arbitration and the post-arbitration petition proceedings. The court granted the motion in part, awarding Singh $27,000 in fees in connection with the petition proceedings in the superior court, and denied it in part, including Singh’s request for $70,181.25 in fees incurred in the prior appeal.
In this appeal Singh contends, as the prevailing party in the post-arbitration judicial proceedings, he was entitled to attorney fees incurred in his successful appeal notwithstanding our order that “[e]ach party is to bear his or its own costs on appeal.” The Weissmann firm, on the other hand, argues no award of attorney fees is appropriate at this point in the proceedings because, as we had invited, the superior court on remand ordered a new arbitration of the underlying fee dispute. In addition, the Weissmann firm has moved to dismiss the appeal, arguing the March 1, 2012 order granting in part and denying in part Singh’s motion for attorney fees is not an appealable order.[1] We agree and dismiss the appeal.

Jose T. Deras was convicted of beating his nine-month-old child to death and of forcibly sodomizing his wife, the mother of their child. He confesses the killing to her, to the arresting authorities and confesses to it at his trial. He contends, however, that the trial court's failure to properly admonish the jury concerning the use of the translation of his statements from Spanish into English constituted reversible error. We conclude that given the crushing weight of the evidence against him the error, if any, is harmless under any standard.
Jose T. Deras appeals from the judgment following his conviction by jury of second degree murder (Pen. Code, § 187, subd. (a)),[1] assault on a child causing death (§ 237ab, subd. (b)), and sodomy by use of force (§ 286, subd. (c)(2)). The jury also found true knife use and tying and binding allegations. (§ 667.61, subds. (a), (e)(3) & (5).) The trial court sentenced appellant to prison for 50 years.[2]
Appellant contends that the trial court committed reversible error by allowing the jurors to hear a Spanish language audio recording of his confession, along with an English transcript, although many jurors did not comprehend Spanish; by failing to instruct jurors with CALCRIM No. 121 or its equivalent, that they must accept the English translation of the interrogation as the evidence even if they would translate it differently; and by failing to instruct the jury on the allegation that appellant used a knife in the commission of the sodomy. We affirm.