CA Unpub Decisions

Defendant Michael Allan Harvey appeals the trial court’s denial of his motion to suppress evidence found by police after conducting a traffic stop. On appeal, defendant argues the search of the car he was driving violated his Fourth Amendment rights because the officer lacked probable cause to conduct the search. We will affirm the trial court’s ruling.
Defendant also appeals the imposition of a $40 court security fee, a $140 county penalty assessment, and a $60 DNA penalty assessment, and the inclusion of a narcotics registration requirement on the abstract of judgment, and claims he is entitled to additional presentence custody credit. But for the $140 penalty assessment and the custody credit entitlement, the People concede all of these claims. We will modify the judgment to reduce the court security fee to $30, reduce the DNA penalty assessment to $20, and strike the narcotics registration requirement.
We will affirm the judgment as modified.

A jury found defendant and appellant, James Rogers Smith, guilty of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664 & 187, subd. (a)), committed for the benefit of, at the direction of or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)) and during which he personally used a firearm (Pen. Code, § 12022.53, subds. (b) & (c)), possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)) and evading a police officer with a willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)). The trial court sentenced Smith to a term of 37 years-to-life in prison. Smith appealed from the judgment and filed a petition for writ of habeas corpus. This court consolidated the petition with the appeal and, in an opinion filed April 11, 2011 (People v. Smith (B217167, B226570) [nonpub. opn.]), determined that the trial court’s failure to properly instruct the jury on the alleged gang allegation “require[d] reversal and remand on that ground only.” With regard to Smith’s remaining contentions, this court held there was no error or that any error which occurred had been harmless.
On remand, the trial court noted that this court had reversed the gang allegation and indicated that, under the circumstances, sentence would not be imposed “in that regard.” The trial court, however, imposed a term of 37 years in prison. Smith’s counsel filed a motion for reconsideration of the sentence and the trial court granted it. At the second resentencing, held on October 10, 2012, the trial court imposed a total term of 27 years-to-life in prison. We affirm.

A.W., the mother of C.R. and M.A., appeals an order of the juvenile court terminating her visitation rights with her children after the juvenile court terminated her family reunification services. The Santa Barbara County Child Welfare Services (CWS) filed a juvenile dependency petition (Welf. & Inst. Code, § 300) on October 11, 2011.[1] We conclude, among other things, that the court did not abuse its discretion in terminating visitation. We affirm.

Inez P. (mother) appeals the juvenile court's order terminating her parental rights to her minor children Michael H. and M.H., and selecting a permanent plan of adoption. (Welf. & Inst. Code, § 366.26.)[1] Mother contends her due process rights were violated because she was not given notice of the date of the continued section 366.26 hearing. We affirm.

Defendant and appellant, Michael D., admitted having committed “vandalism [with] over $400 [in] damage-graffiti,” a felony. (Pen. Code, § 594, subd. (a).) The juvenile court declared Michael D. a ward of the court (Welf. & Inst. Code, § 602), but did not sustain the petition filed against him. Instead, the court deferred entry of judgment (Welf. & Inst. Code, § 790) and placed Michael D. at home on probation for between 12 and 36 months. As a condition of probation, Michael D. was to pay $2,904.96 in restitution and a restitution fine in the amount of $110. At proceedings held on August 29, 2012, Michael D. made a motion requesting the juvenile court to find that he was unable to pay the restitution and the restitution fine (see Welf. & Inst. Code, § 742.16) and to dismiss the matter pending against him (Welf. & Inst. Code, § 790). The juvenile court denied Michael D.’s motions and determined that the order of deferred entry of judgment was to remain in full force and effect. Michael D. appealed. We affirm the juvenile court’s orders.

The juvenile court sustained allegations against Angelina C. (Mother) and Jaime C. (Father) and asserted dependency jurisdiction over their four children. Mother contests two of the four sustained counts against her. She does not challenge the court’s jurisdiction or the disposition, but argues that there is insufficient evidence to support some of the findings under Welfare and Institutions Code section 300.[1] We affirm.

Defendant Steven Carvajal was convicted of several crimes. The trial court selected the assault with a firearm to serve as the principal term for defendant’s sentence. In addition to imposing a term for the substantive offense, the court also imposed a term for the gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C) for a violent felony and for the personal use of a firearm under section 12022.5, subdivision (a).[1] The sole issue on appeal is whether the court erred in imposing both enhancements. The Attorney General concedes error, and we reduce the term of the gang enhancement so that it does not violate our high court’s holding in People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez). We also order the abstract of judgment be modified to reflect defendant’s actual convictions. As modified, we affirm the judgment of conviction.

Richard Animashaun pleaded guilty to making criminal threats and attempted first degree burglary, and admitted one prior strike conviction. (Pen. Code, §§ 422; 664/459; and 667, subds. (b)-(i); 1170.12, subds. (a)-(d).)[1] We direct the trial court to correct the minute order from the sentencing hearing and the abstract of judgment, to conform the terms of victim restitution to the court’s orally pronounced terms. As corrected, we affirm the judgment.

A second amended information charged appellant William Joseph Neufeld with (1) felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1));[1] (2) a special allegation that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)), rendering the offense a serious felony
(§ 1192.7, subd. (c)(8)); (3) felony battery with serious bodily injury (§ 243, subd. (d)); (4) a second special allegation that appellant personally inflicted great bodily injury
(§ 12022.7, subd. (a)); and (5) four separate special allegations that appellant suffered four separate and distinct convictions that resulted in his incarceration in state prison. Appellant pleaded not guilty to these charges and denied the special allegations.

Appellant twice moved for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123. The trial court denied both motions.

The trial court sustained a demurrer to four of five causes of action alleged in a third amended complaint, and thereafter granted a motion for judgment on the pleadings on the remaining cause of action. We affirm.

A jury convicted Roberta Benson of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) On appeal, Benson contends the evidence is insufficient to support her conviction and that the trial court erred in excluding relevant character evidence of the victim, denying her due process. We affirm the judgment.

Plaintiffs attempt to appeal from an order sustaining a demurrer without leave to amend. Although such an order is not appealable, we exercise our discretion to treat plaintiffs’ appeal as a petition for an extraordinary writ.
We find that plaintiffs’ causes of action against their former supervisor for employment-based discrimination-related claims fail, primarily because, given the facts alleged, there is no individual liability for such claims. Therefore, the demurrer was properly sustained without leave to amend.

Appellant Victor Eugene Smith appeals from an order revoking his probation, following an admission of violation, and executing a previously suspended prison term.

Defendant, Labor Ready Southwest, Inc., appeals and plaintiff, Jeffrey L. Allen, cross-appeals from an order compelling arbitration of alleged Labor Code violations. The trial court also severed from arbitration plaintiff’s request for relief under the Private Attorneys General Act of 2004 (Lab. Code,[1] § 2698 et seq.) pursuant to this division’s opinion in Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 502 (review den. Oct. 19, 2011; cert den. Ralphs Grocery Co. v. Brown (Apr. 16, 2012) [132 S. Ct. 1910]). Plaintiff’s cross-appeal asserts the arbitration agreement was unconscionable under general contract principles or that defendant waived the right to compel arbitration. We reverse the order compelling arbitration because defendant waived the right to compel arbitration as a matter of law. Defendant’s appeal is therefore moot.