CA Unpub Decisions

The California School Employees Association, the association’s Santa Ana chapter, and a member of the association (collectively referred to as CSEA) sought a peremptory writ of mandate compelling the Santa Ana Unified School District, its governing board, and two of its superintendents (collectively referred to as the District) to rescind the District’s partnership agreement with THINK Together, Inc. (THINK) for the provision of after-school program management services because the partnership agreement allegedly violated Education Code section 45103.1.[1] CSEA also sought the reinstatement of classified employees to the after-school tutoring positions they held prior to the District’s agreement with THINK, and an order directing the District to compensate the purportedly displaced classified employees for their losses due to the THINK partnership agreement. The trial court determined the after-school tutoring positions held by the classified employees prior to the District’s agreement with THINK were extra duty assignments “at-will,” rather than permanent classified school employment positions, and the employees who held those positions never obtained permanent status for the extra duty hours they worked. Consequently, the trial court held the District’s agreement with THINK did not violate the provisions of section 45103.1, and denied the peremptory writ of mandate requested by CSEA. We need not consider CSEA’s appeal with regard to the trial court’s ruling on the substantive issues. Instead, we dispose of the appeal on procedural grounds by concluding CSEA failed to exhaust administrative remedies. We reverse the trial court’s order and remand the matter with directions to stay the proceedings until CSEA exhausts administrative remedies.

A modification decision.

On May 29, 2012, an amended felony complaint charged defendant and appellant Christopher Eric Malveaux with two counts of felony robbery (Pen. Code, § 211, counts 1 & 2), and one misdemeanor count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 3). The complaint also alleged that defendant personally used a firearm in the commission of counts 1 and 2. (Pen. Code, § 12022.53, subd. (b).)
On September 18, 2012, defendant pleaded guilty to count 1 and admitted the personal gun use enhancement. In exchange, the parties agreed to a prison term of 12 years in state prison and the dismissal of the other charges and allegations.
On September 28, 2012, the trial court sentenced defendant to 12 years in state prison, comprised of the low term of two years for the robbery conviction and a consecutive 10-year term for the gun enhancement. The court dismissed the other allegations and charges, and awarded defendant 151 days of actual credits and 22 days of conduct credits.
On November 16, 2012, defendant filed a timely notice of appeal from his sentence or other matters after the plea.

Mother appeals from a judgment terminating her parental rights to three children, R.M., A.G., and G.D. (Welf. & Inst. Code,[1] § 366.26.) The children became dependents due to physical abuse of two of the children, and domestic violence in the home. After an incident between mother’s oldest child, S.R.,[2] and G.D., Sr., the father of G.D., Jr., G.D., Sr. was required to move out of the family home. Mother eventually was allowed unsupervised visits with the children providing G.D., Sr. was not present in the residence, but the Department of Public Social Services (DPSS) learned that mother had allowed G.D., Sr. back into the home when the children were present. At the 12-month review hearing, mother’s services were terminated and a section 366.26 hearing was set. Prior to the section 366.26 hearing, mother filed a petition for modification (§ 388) which was denied. The court terminated parental rights and mother appealed.
On appeal, mother argues that the court erred (1) in denying her section 388 petition, and (2) in terminating her parental rights. We affirm.

T.V., father, appeals from a judgment of the juvenile court terminating his parental rights to two children. Father argues the beneficial parental bond exception applies and the court should have ordered legal guardianship instead of adoption. After thoroughly reviewing the record, we reject father’s appeal and affirm the judgment.

This is an appeal by J.K. (mother) from the trial court’s order under Welfare and Institutions Code section 366.26[1] terminating her parental rights to her then 12-month-old son, L.P. Mother contends the trial court erred in denying her section 388 petition in which she requested the trial court order reunification services because, although her whereabouts were unknown at the start of the dependency process, mother appeared in court on the date set for the selection and implementation hearing. Therefore, mother contends the trial court was required to provide reunification services to her and that it erred in failing to do so.
We agree with mother that the trial court erred, but do not share her view that ordering reunification services is the only appropriate remedy, as we discuss below. Therefore, we will reverse the order terminating mother’s parental rights and remand the matter to the trial court but with options on how to proceed on remand.

On August 4, 2011, a felony complaint charged defendant and appellant Omar Salazar with four felony counts of child abuse (Pen. Code, § 273a, subd. (a), counts 1-4); one felony count of evading an officer (Veh. Code, § 2800.2, subd. (a), count 5); and one misdemeanor count of being a habitual traffic offender (Veh. Code, § 14601.3, subd. (a), count 6).
On February 16, 2012, defendant pleaded no contest to evading an officer (Veh. Code, § 2800.2, subd. (a), count 5); resisting an officer (Pen. Code, § 69, added count 7); and a nonstrike assault by means likely to inflict great bodily injury (Pen. Code, § 245, subd. (a)(1), added count 8). In exchange, the parties agreed to a term of three years in state prison for each count to run concurrent. The other charges were dismissed, as well as defendant’s other cases.
On June 18, 2012, the trial court sentenced defendant to concurrent terms of three years in state prison for each count, and ordered defendant to pay a $240 restitution fine (Pen. Code, § 1202.4), and a $240 parole revocation restitution fine (Pen. Code, § 1202.45), stayed unless parole is revoked.
On July 6, 2012, defendant filed a timely notice of appeal from his sentence or other matters after the plea.

A jury found defendant and appellant, Joseph Ray Rice (defendant), guilty as charged of first degree murder (Pen. Code § 187, subd. (a); count 1),[1] possession of a firearm by a felon (§ 12021, subd. (a)(1); count 2), and street terrorism (§ 186.22, subd. (a); count 3). The jury also found true the gang (§ 186.22, subd. (b)(1)) and firearm use (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)) enhancements alleged in connection with the murder charge alleged in count 1, and the gang enhancement alleged in connection with the felon in possession of a firearm charge alleged in count 2. Defendant admitted the allegations that he had previously been convicted of a serious or violent felony within the meaning of the three strikes law (§ 667, subds. (b)-(i)), (2)), and a serious felony (§ 667, subd. (a)(1)), and that he had served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to serve a determinate term of 15 years to life in state prison, followed by an indeterminate term of 75 years to life.[2]

In two dependency appeals, consolidated for purposes of oral argument and decision, M.H., the father of A.C., challenges the orders made by the juvenile court denying father’s three requests to represent himself and father’s additional request for gas vouchers so that he could conduct visitation in Landers in San Bernardino County rather than Cabazon in Riverside County.
A.C. was returned to the custody of father and mother in October 2012 and the dependency case was dismissed by the juvenile court in January 2013. (E057405; Evid. Code, § 459.) After reviewing the record, we have determined that the issues raised by father no longer present a justiciable controversy. Therefore, the appeals are DISMISSED as moot.

A jury convicted defendant Jamil Urail Everett of possession of methamphetamine (Health and Saf. Code, § 11377;[1] count 1); being a felon in possession of a firearm (§ 12021, subd. (a)(1)); and possession of a false driver’s license (§ 529.5, subd. (c); count 3). The jury also found true, as to counts 1 and 2, allegations that defendant committed the crimes while released on bail (§ 12022.1). Defendant admitted he had one prison prior (§ 667.5, subd. (b)). The trial court sentenced defendant to eight years four months in prison.
Defendant contends on appeal that the trial court abused its discretion in denying his motion to continue the trial. Defendant also asserts that the trial court committed reversible error in admitting into evidence a jailhouse audio recording and his statement given to the police while he was in the hospital. We reject defendant’s contentions and affirm the judgment.

Defendant Juan Manuel Jiminez is serving 30 years in prison after pleading guilty to charges stemming from sexually abusing his stepdaughter and niece over several years. Defendant contends the trial court erred when it accepted his guilty plea after he commented during the plea colloquy “It is a lot of years. But there’s nothing I can do about it anyway” without further questioning him to determine whether he was voluntarily waiving his constitutional rights. As discussed below, we find this to be merely an understandable comment about the situation in which defendant had placed himself, and therefore find no error.

A jury convicted defendant, Kevin Brazier, of attempted murder, which was premeditated and deliberate (Pen. Code, §§ 664/187, subd. (a)),[1] and making criminal threats (§ 422), during both of which he used a knife (§ 12022, subd. (b)(1)), and assault with a deadly weapon (§ 245, subd. (a)(1)). In bifurcated proceedings, the court found true allegations that he had suffered a serious prior conviction (§ 667, subd. (a)) and a strike prior (§ 667, subds. (c) & (e)(1)). He was sentenced to prison for 14 years to life plus 6 years.

Dartagnan Andre Gary, the defendant, was charged with murder in the shooting death of Jared D., on a street near a house where a party was held. The shooting followed a gang challenge to the Gutta[1] Squad Mafia street gang, of which defendant was an associate. A jury convicted defendant of first degree murder (Pen. Code,[2] § 187, subd. (a)), found that a firearm was discharged, causing death, in the commission of the crime (§ 12022.53, subd. (d)), and the crime was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Defendant was also convicted of a active participation in a criminal street gang. (§ 186.22, subd. (a).) He was sentenced to an aggregate term of 50 years to life and appealed.
On appeal, defendant argues (1) independent review of the record of in camera proceedings pertaining to discovery of information regarding an ongoing investigation is required; (2) his conviction, based upon prior inconsistent statements of witnesses, violated his right of confrontation; (3) his conviction is not supported by substantial evidence; (4) his due process rights were violated by the admission into evidence of a witness’s photographic lineup identification; (5) his trial attorney was ineffective for failing to object to allegedly coerced statements made by a witness who identified defendant as the shooter; (6) reading CALCRIM No. 223 constituted reversible error because it shifted the burden of proof; (7) reading CALCRIM No. 224 misstated the prosecutor’s burden of proof and constituted structural error for instructing the jury it must determine whether defendant was innocent as opposed to not guilty; and (8) defendant’s sentence on count 2 should be modified to conform with the oral pronouncement. We remand for resentencing on count 2, but otherwise affirm.

Defendant and appellant, Edward George Keller, Jr. (defendant), appeals from the judgment entered after a jury found him guilty of second degree murder, as a lesser included offense of the charged crime of first degree murder, found true the allegation that he personally used a deadly weapon in the commission of the crime, and the trial court sentenced him to serve a determinate term of one year in state prison, followed by an indeterminate term of 15 years to life.
Defendant raises two claims of error in this appeal. First, he contends his confession to the police was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) because the prosecution did not show that defendant voluntarily waived his right to remain silent and his right to have his attorney present. Therefore, defendant contends the trial court should have granted his motion to exclude that confession from evidence. Defendant’s second claim of error is that several jurors engaged in prejudicial misconduct by commenting during the jury’s deliberations on the fact that defendant had not testified at trial and, therefore, the trial court erred in denying defendant’s motion for a new trial based on that misconduct.
We will affirm the judgment because we conclude no error occurred.