CA Unpub Decisions

A felony complaint filed in October 2000 charged defendant and appellant Gary Bernard Parker with one count of second degree robbery. (Pen. Code, § 211.) The complaint also alleged that defendant had suffered six prior serious or violent felony convictions. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)
The record does not include the information, verdicts, or minute orders from the jury trial. However, the abstract of judgment filed April 26, 2001, shows defendant was convicted by jury trial of second degree robbery (Pen. Code, § 211, count 1) and grand theft of property (Pen. Code, § 487, subd. (a), count 2).
The April 16, 2001 minute order shows defendant’s motion for new trial was denied. He was sentenced pursuant to Penal Code section 1170.12, subdivision (c)(2), and section 667, subdivision (e)(2), for a total indeterminate term of 25 years to life in state prison.
Defendant appealed, and we reversed the grand theft count as being a lesser included offense of the robbery. (See People v. Parker (Jan. 15, 2002, E029353) [nonpub. opn.].) On July 11, 2002, on the court’s own motion, count 2 (grand theft) was dismissed by the trial court. A new abstract of judgment was filed July 24, 2002.
On March 8, 2013, defendant filed a petition for recall of sentence under the Three Strikes Reform Act of 2012. (Pen. Code, § 1170.126.) Finding that defendant was ineligible because the current commitment includes robbery (a serious felony), the trial court denied defendant’s petition on March 21, 2013.
On April 2, 2013, defendant filed a timely notice of appeal from the trial court’s denial of his petition for recall.

No appearance for Plaintiff and Respondent.
Defendant and appellant Gilbert Eugene Davidson appeals after the trial court denied his petition for resentencing under Penal Code section 1170.126, known as the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7, 2012)).[1] Defendant filed a notice of appeal on March 13, 2013. We affirm.

On October 23, 2012, a felony complaint charged defendant and appellant Gerardo Romero Zacatenco with nine counts of lewd acts upon a minor under the age of 14 years (Pen. Code,[1] § 288, subd. (a), counts 1-2, 4-10), and one count of a lewd act upon a minor under the age of 14 years by use of force and fear of immediate bodily injury. (§ 288, subd. (b)(1), count 3).
On December 5, 2012, defendant pled guilty to counts 3 through 6. In exchange, the remaining charges were dismissed and defendant agreed to a stipulated sentence.
On December 12, 2012, pursuant to the plea agreement, the trial court sentenced defendant to 12 years in state prison. The court awarded defendant 56 days of credit for time served, consisting of 49 actual days and seven conduct days pursuant to section 2933.1.
On February 4, 2013, defendant filed a timely notice of appeal. The notice of appeal indicated that the appeal was based on the sentence or other matters that occurred after the plea.

Defendants and appellants K.P. (Mother) and R.D. (Father) in this juvenile dependency case are the parents of J. and R. The juvenile court took jurisdiction over the children pursuant to Welfare and Institutions Code section 300[1] and, at a disposition hearing, denied the parents reunification services. The court also set a hearing to be held pursuant to section 366.26. The parents did not appeal or petition for an extraordinary writ. The case proceeded to the section 366.26 hearing where the court terminated their parental rights to the children. The parents appealed.
The parents challenge the court’s jurisdictional findings and the dispositional order denying reunification services. Plaintiff and respondent San Bernardino County Children and Family Services (CFS) asserts that the parents waived these arguments by failing to file a petition for extraordinary writ. We agree with CFS. Mother also asserts that the court erred in denying a request she made at the section 366.26 hearing for a continuance so that she could file a request for change order, commonly referred to as a “section 388 petition.” She further argues that the court erred by failing to apply the beneficial parental relationship exception to terminating parental rights. We reject these arguments and affirm the court’s orders.

In case No. FVI1201131, a jury found defendant and appellant James Betron Barnes[1] guilty of misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)), the lesser included offense of felony resisting an executive officer (Pen. Code, § 69). The trial court thereafter found defendant violated his probation in case No. FVI1000094. In case No. FVI1201131, defendant was sentenced to one year in county jail and given credit of 376 days for time served. In case No. FVI1000094, defendant’s probation was revoked and he was sentenced to a total term of eight years in state prison with credit for time served. Defendant appeals from both cases. For the reasons explained post, we modify the sentence in case No. FVI1000094. In all other respects, we affirm the judgment.

Pedrina Barquero,[1] Jennifer Barquero, and Zoila Rose Vega,[2] alleging causes of action for injunctive relief (stay-away orders), intentional and negligent infliction of emotional distress, and conspiracy, arising out of alleged harassment of plaintiffs by the defendants. The parties had a settlement conference in 2009, and the trial court put the terms on the record. However, when plaintiffs moved in 2012 to enforce the agreement, a dispute arose: defendants objected to enforcement on the ground that they never agreed to the specific term being enforced. That is, the agreement as announced by the court was for a different (greater) stay-away distance from the distance the parties had agreed to during settlement negotiations. The trial court determined that defendants had, in fact, agreed to the stay-away distance as announced by the court in 2009, and enforced the agreement as announced. Defendants now appeal. With a minor modification, we affirm.

Apparently many new car dealers in California use a form purchase and sale contract, which includes a form arbitration clause. The question of whether this form arbitration clause is unconscionable or not has produced no fewer than five published appellate opinions so far: Vargas v. SAI Monrovia B, Inc. (2013) 216 Cal.App.4th 1269 (unconscionable), review granted, August 21, 2013, S212033; Vasquez v. Greene Motors, Inc. (2013) 214 Cal.App.4th 1172 (not unconscionable), review granted June 26, 2013, S210439; Natalini v. Import Motors, Inc. (2013) 213 Cal.App.4th 587 (unconscionable), review granted, May 1, 2013, S209324; Flores v. West Covina Auto Group (2013) 212 Cal.App.4th 895 (not unconscionable), review granted, April 10, 2013, S208716; Goodridge v. KDF Automotive Group, Inc. (2012) 209 Cal.App.4th 325 (unconscionable), review granted, December 19, 2012, S206153; Sanchez v. Valencia Holding Co., LLC (2011) 201 Cal.App.4th 74 (unconscionable), review granted, March 21, 2012, S199119. As noted, the California Supreme Court has granted review in all these cases; however, it has not yet decided any.

Defendant and appellant M.S. (Minor) appeals from the juvenile court’s true finding that Minor was in violation of her probation when she left her home without the permission of her father or her probation officer. We find no error and affirm the judgment.

Defendant and appellant Maximo Monarez Ramos appeals after the trial court denied his motion to grant him additional presentence conduct credits pursuant to Penal Code former section 4019, which became effective on January 25, 2010, now superseded. We affirm the trial court’s order.

Defendants and appellants J.R. (Mother) and D.I. (Father) appeal from orders denying Mother’s petition under Welfare and Institutions Code[1] section 388 and terminating their parental rights to their 20-month-old daughter R.I.[2] Mother’s sole contention on appeal is that the juvenile court erred in denying her section 388 petition. Father joins in Mother’s argument. We reject Mother’s contention and affirm the judgment.

Scott Bail met defendant Richard Anthony Lockhart at a bus stop and invited defendant to the apartment shared by Bail and his roommate John Jakway. During the night, Jakway was stabbed and Scott Bail was struck in the face as he entered the bedroom in response to Jakway’s cries for help. Defendant was convicted by a jury of second degree murder of John Jakway and misdemeanor battery of Scott Bail. He admitted a prior conviction alleged under the Strikes law, and was sentenced to a term of 30 years to life for the second degree murder, and a current term of six months for the battery. Defendant appealed.
On appeal, defendant claims the court erred in (1) admitting his pretrial statement to investigating detectives on the grounds he had invoked his right to counsel prior to being admonished of his Miranda rights,[1] and (2) denying his motion for mistrial on the ground of prosecutorial misconduct for distributing a transcript of defendant’s taped interview which included information about defendant’s probation and parole status. We affirm with directions to amend the abstract of judgment.

Defendant Tito Perez, Jr., appeals his conviction for the gang-related first degree murder of Alex Alaniz. The sole issue he raises is ineffective assistance of trial counsel, who, defendant contends, prejudicially failed to investigate possible exculpatory evidence and failed to call a gang expert to testify on defendant’s behalf.
We conclude that even if trial counsel’s performance fell below the applicable standard of professional conduct, no prejudice resulted.

Father appeals from juvenile court jurisdiction and disposition orders, sustaining jurisdiction over his daughter, S.R. (born in 2004), and placing her with maternal grandparents. (Welf. & Inst. Code, § 300, subd. (b).)[1] Father contends there was insufficient evidence supporting the juvenile court’s jurisdictional findings, and the court erred in not placing S.R. with him, since he was a nonoffending, noncustodial parent. In addition, father asserts the visitation orders were deficient and S.R.’s attorney had a conflict of interest in representing S.R. and her older siblings.[2]
We conclude there was substantial evidence supporting the juvenile court’s jurisdiction and disposition orders. We agree the visitation orders are improper because they do not specify the frequency or duration of S.R.’s visitation with father. Therefore, on remand, the juvenile court is directed to modify the visitation order on September 29, 2011, by specifying the frequency and duration of father’s visitation with S.R. We reject father’s other contentions and affirm the jurisdiction and disposition orders.

Plaintiff Heriberto Hernandez suffered a gruesome on-the-job injury when his hands were crushed in a power press. Under the worker’s compensation exclusivity rule (Lab. Code, § 3600, subd. (a)), and under the power press exception to that rule (Lab. Code, § 4558), Hernandez cannot recover against his employer, Thermal Structures, Inc. (Thermal) unless he can show that the accident occurred because Thermal either removed or failed to install a point of operation guard on the press.
When the accident occurred, the press did have a point of operation guard — two buttons, mounted on a pedestal; the press was not supposed to operate unless both buttons were pushed simultaneously. Hernandez’s current theory is that Thermal “removed” the guard by adding wheels to the pedestal, which allowed the pedestal to move so close to the main body of the press that he could push the buttons with his elbows while his hands were still dangerously close to the press. The problem with this theory is that, in discovery, Hernandez admitted that (1) Thermal did not remove a point of operation guard, (2) no changes were ever made to the press, and (3) the buttons were not being pushed when the accident occurred. Accordingly, the trial court properly granted summary judgment for Thermal.