CA Unpub Decisions

Pursuant to a plea bargain, defendant Donald Keith Garner pleaded no contest to a charge of receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted three prior prison terms and four prior “strike” convictions (under the three strikes law), in exchange for dismissal of the remaining charges (commercial burglary, petty theft with priors, and marijuana possession).[1]
Sentenced under the three strikes law to 25 years to life, defendant appeals. He contends (1) Proposition 36, which the electorate passed in November 2012 to reform the three strikes law, applies to his case and he should be resentenced under the “two strikes law”; (2) alternatively, because the record shows that the conduct underlying three of his four strike convictions was not “serious felony” conduct, the imposition of a three strikes sentence was an abuse of discretion, even under pre-Proposition 36 law; and (3) a restitution fine was erroneously imposed (defendant has withdrawn this argument, having already obtained the relief sought).
We shall affirm the judgment. Given defendant’s contentions on appeal, providing background facts is unnecessary.

In this action with cross-prayers for declaratory relief regarding the obligation of plaintiff Mid-Century Insurance Company (Mid-Century) to defend eight defendant car dealerships and their principal (to whom we will refer only collectively as defendants) in an underlying action for wage/hour violations of state and federal law, the trial court concluded potential coverage did not exist under Mid-Century’s commercial general liability policy—in particular, its “Employee Benefit Liability” (EBL) endorsement—and therefore Mid-Century did not have any duty to defend defendants in the class action. The trial court concluded the wage/hour class action arises from the employment practices of defendants and not the administration of employee benefit plans that the endorsement covers. It accordingly entered judgment in October 2011 in favor of Mid-Century (and against defendants on their cross-complaint), issuing a declaration to this effect. Defendants filed a timely notice of appeal.[1]
The gist of defendants’ arguments on appeal rests on their characterization of their alleged conduct in the underlying action as being deliberate but nonetheless negligent and lacking any intent to injure the class. They claim this presents the possibility of coverage under the EBL endorsement for acts of negligence, under well-settled law. This entirely misses the point of the trial court’s ruling that the employment practice of wage-setting, even if it has a proportionate effect on the preset calculation of benefits based on the rate of wages, is not negligent conduct having any nexus to the administration of employee benefit plans.[2] We therefore will affirm the judgment.

A jury convicted defendant Seng Her of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a); count three.) The jury deadlocked and a mistrial was declared on counts of inflicting corporal injury on the parent of his child (Pen. Code,[1] § 273.5, subd. (a); count one) and battery resulting in serious bodily injury (§ 243, subd. (d); count two). The trial court found that the conviction constituted a probation violation in case No. 08F04890, and that defendant had suffered a prior serious felony conviction. The prosecution dismissed the mistried counts in the interest of justice. Defendant was sentenced to state prison for seven years, consisting of the upper term of three years, doubled for the prior strike, plus one year in case No. 08F04890. He was awarded 172 days’ custody credit and 172 days’ conduct credit in this case and an aggregate 124 days’ presentence credit in case No. 08F04890.[2]
Defendant was ordered to pay a $200 restitution fine (§ 1202.4), a $200 restitution fine suspended unless parole is revoked (§ 1202.45), a $50 laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) plus $130 in penalty assessments, a $150 drug program fee (Health & Saf. Code, § 11372.7) plus $130 in penalty assessments, a $40 court security fee (§ 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), a $287.78 main jail booking fee (Gov. Code, § 29550.2), and a $59.23 classification fee (ibid).
On appeal, defendant contends imposition of the booking and classification fees was reversible error because he was “financially unable to pay . . . .” We affirm.

Based on plaintiff Sophia Cardona’s failure to obey a discovery order to produce documents at her deposition, the trial court imposed a terminating sanction and dismissed her action. Finding no abuse of discretion on the trial court’s part, we shall affirm the judgment of dismissal. We will proceed straight to our discussion, setting forth the factual background there.

A jury found defendant Marty Dupree Hilliard guilty of transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a))[1] and resisting arrest (Pen. Code § 148, subd. (a)(1)). In bifurcated proceedings, the trial court found defendant had two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), and a prior controlled substance conviction within the meaning of section 11370.2. Defendant was sentenced to an aggregate term of 10 years, which included a consecutive three-year term for the prior controlled substance conviction.
With regard to the prior controlled substance conviction, which occurred in Oregon, defendant argues the trial court erroneously concluded that “delivery” under Oregon law equates with “transportation” under California law. Because California law does not expressly include “delivery,” defendant argues that the consecutive three-year term should be stricken. We conclude that the record of the Oregon prior conviction presented by the prosecution at the bifurcated proceedings contains insufficient facts to support the trial court’s finding that the prior controlled substance conviction qualified as an enhancement. Accordingly, we reverse the finding and remand for retrial on the enhancement allegation and resentencing.[2]

On June 21, 2008, defendant Marquis Boner--an 18 year old with no record of violence--shot Rigoberto Galaviz dead, as Galaviz was trying to stop defendant from fleeing from a robbery. Defendant was quickly captured, and confessed to the robbery and to shooting Galaviz. In securing defendant’s confession, the interviewing detectives did not tell defendant that Galaviz was dead.
The jury found defendant guilty of murder, robbery, and discharging a firearm from a motor vehicle, and found true a robbery-murder special circumstance and firearm allegations. (Pen. Code, §§ 187, 211, 12034, subd. (d), 190.2, subds. (a)(17) & (a)(22), 12022.53, subds. (b) & (e)(1).) The jury acquitted defendant of a second robbery, as well as allegations that he was a member of a criminal street gang and committed the crimes for the benefit of a gang, and rejected other firearms allegations. With the concurrence of the People, in light of the not-true findings on the gang charges, the trial court struck the firearm enhancements found true by the jury, and sentenced defendant to prison for life without possibility of parole for murder with special circumstances, and stayed determinate terms for the robbery and vehicle discharge counts (see Pen. Code, § 654). Defendant timely appealed.[1]
On appeal, defendant contends his confession should not have been introduced as evidence because it was involuntary from its inception or, alternatively, became involuntary after the detectives lied to him about Galaviz’s physical condition. As we will explain, our independent review of the record, including a DVD of the interrogation, shows defendant’s confession was voluntary.
Defendant also contends the trial court improperly overruled foundational objections to gang-related material that had been downloaded from social networking websites. We conclude the trial court did not abuse its discretion in overruling the defense objections; further, in light of the acquittal on all gang-related charges, any error was harmless.

Accordingly, we shall affirm the judgment.

Following a jury trial, defendant Jennifer Patterson was convicted of embezzlement. (Pen. Code, § 487, subd. (b)(3).)[1] The jury also found true the enhancement allegation that she took property valued at over $65,000. (§ 12022.6, subd. (a)(1).) In addition to her prison sentence, defendant was ordered to pay $150,000 in direct victim restitution. On appeal, defendant contends there was insufficient evidence to support the true finding that she stole more than $65,000 and the trial court abused its discretion in ordering her to pay $150,000 in direct victim restitution. We conclude the reasonable inferences drawn from the evidence provide substantial evidence supporting the enhancement allegation. Furthermore, we conclude there is a rational and factual basis for the restitution award. Accordingly, we affirm the judgment.

The minor, Caleb P., appeals from a wardship order based upon a finding he committed felony vandalism. (Pen. Code, § 594, subds. (a) & (b)(1); Welf. & Inst. Code, § 602.) The juvenile court found the offense was a felony because the damage exceeded $400. (Pen. Code, § 594, subd. (b)(1).) The victim testified he received estimates of $3,000 to repair scratches to his vehicle. That testimony was inadmissible hearsay. (Evid. Code, § 1200; Le Brun v. Richards (1930) 210 Cal. 308, 319-320; McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 111, fn. 26; Kitchel v. Acree (1963) 216 Cal.App.2d 119, 125; Garfinkle v. Montgomery (1952) 113 Cal.App.2d 149, 158-159.) On appeal, the minor argues it was prejudicial error to admit the hearsay testimony. The minor forfeited this claim, however, by failing to object to the testimony in the juvenile court. (People v. Homick (2012) 55 Cal.4th 816, 870; People v. Waidla (2000) 22 Cal.4th 690, 717.) In any event, any error was harmless. (People v. Sakarias (2000) 22 Cal.4th 596, 630; People v. Watson (1956) 46 Cal.2d 818, 836.) The victim testified his car was scratched on the passenger side and hood. Two of its tires were flat. He paid $60 to replace the damaged tires with used tires. Even absent the victim’s testimony regarding the $3,000 estimates, the juvenile court could reasonably conclude, based on the victim’s description, that the damage to the vehicle exceeded $400. It would not be speculative for the trial judge to consider as common knowledge the high cost of auto body repair.
There is no merit to the minor’s ineffective assistance claim. The record contains no explanation for the failure to object or otherwise litigate the issue. (People v. Mai (2013) 57 Cal.4th 986, ___ [161 Cal.Rptr. 3d 1, 24]; People v. Vines (2011) 51 Cal.4th 830, 875-876.)
Further, because the minor cannot demonstrate prejudice on direct appeal, his ineffective assistance of counsel contention also fails. (People v. Jennings (2010) 50 Cal.4th 616, 654, fn. 15; People v. Waidla, supra, 22 Cal.4th at pp. 718-719.)



The wardship order is affirmed.

Appellant is the father of the infant “D.R.” D.R. was born in December 2012. The juvenile court removed D.R. from the custody of mother and father after making findings pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b) and (j). [1]
Father appeals the juvenile court’s jurisdictional findings made pursuant to section 300, subdivisions (a) and (b). He also contends insufficient evidence supports the trial court’s dispositional orders requiring (a) D.R. be suitably placed with the maternal grandmother (“grandmother”), and (b) he be randomly drug tested and participate in counseling programs. We hold the jurisdictional finding was properly made and father’s history of domestic violence and marijuana use constituted sufficient evidence to support the juvenile court’s dispositional orders.

Appellant LA Open Door Presbyterian Church (LAOD) contends that the trial court improperly awarded attorney fees to respondent Evangelical Christian Credit Union (ECCU) after LAOD voluntarily dismissed its complaint against ECCU. We find that ECCU was entitled to an award of its fees pursuant to contract, and that the trial court did not abuse its discretion in the amount of fees awarded. Accordingly, we affirm.

We affirm the trial court’s jurisdictional and dispositional order taking jurisdiction over seven-year-old A.G. and removing her from father’s custody. We reject father’s challenge to the sufficiency of the evidence to support the findings that he sexually and physically abused A.G. because the juvenile court found A.G.’s testimony describing such abuse credible.

The trial court dismissed the lawsuit of Nizam Wattar after finding that she failed to make a timely claim against the Palmdale School District under the Government Claims Act (Gov. Code, § 810 et seq.).[1] We affirm.

In the underlying proceeding, the juvenile court sustained a petition charging appellant A.H. with three counts of assault by means likely to produce great bodily injury. Appellant’s court-appointed counsel has filed an opening brief raising no issues. Following our independent examination of the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we conclude that no arguable issues exist, and affirm.

The California Occupational Safety and Health Act of 1973 (Cal-OSHA; Lab. Code, § 6300 et seq.) imposes a myriad of safety standards on employers. There are, however, exceptions to its applicability. The issue in this case is whether an employer of a worker hired to paint the eves of the employer’s triplex rental property has contracted for work that falls within the “household domestic service” exception to Cal-OSHA regulations. We hold such labor does not constitute “household domestic service” and is therefore subject to regulation under Cal-OSHA. The trial court’s order granting the employer’s motion for summary judgment is reversed because the ruling was based on the erroneous application of the exception.