CA Unpub Decisions

Appellant was convicted of, inter alia, assaulting, battering and stealing from his former girlfriend Margarita Velasco. It is undisputed one of his convictions must be reversed under the lesser included offense doctrine and the amount of his restitution fine must be reduced $40. The only remaining issue is whether the trial court erred in failing to stay appellant’s sentence for theft pursuant to Penal Code section 654. Finding no error in this regard, we affirm the judgment in all other respects.

A jury found Arnulfo Gonzalez guilty of second degree murder for the unlawful killing of Samuel Valdivia (Pen. Code, § 187; all further references are to the Penal Code unless otherwise specified), and also found true he personally used a knife in the commission of the murder within the meaning of section 12022, subdivision (b), subsection (1). Gonzalez contends the trial court erred by providing an unmodified version of CALCRIM No. 625, which addresses the effect of voluntary intoxication in homicide crimes. Gonzalez argues the instruction could have caused a reasonable juror to disregard evidence of the victim’s and witnesses’ intoxicated state. For the reasons expressed below, we affirm.

Allstate Insurance Company appeals from an order denying its motion for judgment notwithstanding the verdict in an action based on the Fair Employment and Housing Act (FEHA). Allstate’s former employee, Eric Dickinson, sued Allstate and his immediate supervisor, Eric Jentgen, for disability discrimination. Allstate on its side asserted it terminated Dickinson’s employment because he falsified company documents, not because of a disability. The jury returned special verdicts in Dickinson’s favor on two of eight FEHA causes of action alleged in the complaint. The court denied Allstate’s subsequent motion for judgment notwithstanding the verdict (JNOV) on these two claims.
Dickinson cross-appeals from the trial court’s subsequent attorney fee and cost awards as too small. He also cross-appeals from the posttrial entry of a judgment omitting Jentgen from a defamation claim.
On the appeal, we reverse in part and affirm in part. The jury found in Dickinson’s favor on two exclusively FEHA causes of action: failure to accommodate and failure to engage in the interactive process. An essential element of a lawsuit under the FEHA is exhaustion of administrative remedies. There is no evidence in this record that Dickinson received the necessary right-to-sue letter from the Department of Fair Employment and Housing (DFEH). The trial court should have granted Allstate’s motion for JNOV on this issue.

Appellant, Scott H., is the father of 17-month-old Michael, the subject of this dependency appeal, who was detained and placed in foster care. After the dispositional hearing in April 2012, Michael’s maternal grandmother filed a Welfare and Institutions Code section 388[1] petition asking the juvenile court to place Michael with her. The juvenile court denied the petition and subsequently terminated reunification services and set a section 366.26 hearing.
Scott appeals from the juvenile court’s denial of the maternal grandmother’s section 388 petition. We affirm. The juvenile court properly exercised its discretion in determining that Michael’s best interest would not be served by a change of placement.

After a jury found appellant Rick Lee Hicks to be a sexually violent predator (SVP), the trial court committed him to the custody of the Department of Mental Health (DMH) for an indeterminate term under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).[1] Hicks appeals, contending (1) that the trial court prejudicially erred when it accepted defense counsel’s waiver of a probable cause hearing without obtaining Hicks’s personal waiver of that hearing; (2) that the trial court committed reversible error when it declined to instruct on circumstantial evidence; and (3) that there was insufficient evidence that Hicks would likely commit a future predatory offense without appropriate treatment in a custodial setting. We disagree and affirm.

Appellant Dominique Bustamante was charged with two counts of sale of methamphetamine (counts 1 & 3), two counts of active participation in a criminal street gang (counts 2 & 5), and one count of transporting methamphetamine for sale (count 4).
The jury found Bustamante guilty as charged on all counts. He admitted a prior prison term allegation. On August 22, 2011, Bustamante was sentenced to a total term of six years eight months, with the terms for some counts stayed and others to run concurrently.
Bustamante appealed, contending there is insufficient evidence to support the Penal Code[1] section 186.22, subdivision (a) (section 186.22(a)) convictions in counts 2 and 5, the substantive offense of active participation in a criminal street gang. Specifically, he contends there is insufficient evidence establishing that the underlying drug offenses were committed with another gang member. As to count 2, the February 18, 2010, drug sale, the People concede the issue and we accept the concession. As to count 5, we will conclude there is sufficient evidence to support the verdict that the February 4, 2010, drug sale involved another gang member. The count 2 conviction is therefore reversed. In all other respects, the judgment is affirmed.

Appellant Albung Saesee was convicted by a jury of murder in the first degree (Pen. Code,[1] § 187), assault with a deadly weapon (§ 245, subd. (a)(1)), and criminal threats (§ 422). In addition the jury found true the special allegations that appellant personally and intentionally discharged a firearm causing great bodily injury during the commission of the murder (§ 12022.53, subd. (d)), and used a firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a)(1). The trial court subsequently sentenced appellant to a term of 50 years to life on the murder and firearm counts consecutive to a term of 3 years 8 months on the remaining counts.
On appeal, appellant contends the trial court erred in failing to provide him with a separate interpreter throughout the proceedings, in admitting certain photographs, and in allowing the prosecution to use appellant’s statement made to a nurse shortly after the killing. We find appellant’s contentions without merit and affirm the judgment.

Appellant Stein Heath Cole maintains the following: (1) the trial court erred when it allowed prior bad acts evidence as the evidence was irrelevant and prohibited by Evidence Code sections 352 and 1101, subdivision (b); (2) he was deprived of his state and federal due process rights, as well as his right to a reliable verdict, because the great bodily injury enhancement pursuant to Penal Code[1] section 12022.7 was imposed in the absence of substantial evidence; (3) the evidence was insufficient to prove attempted dissuasion of a witness; and (4) the trial court erred when it imposed consecutive terms on counts 9 through 12 as those terms are prohibited by section 654. We affirm the judgment.

Michelle B. and Tracy J. seek review of a juvenile court order setting a hearing under section 366.26. They challenge the juvenile court's findings that it would be detrimental to return their children to their care, that there was no substantial probability that their children would be returned home within the next six months, and that reasonable services were provided to them. We deny the petitions.

Gary A. (Gary) and Jose N. (Jose) appeal from orders denying their respective petitions to modify a previous order and terminating their respective parental rights under Welfare and Institutions Code section 366.26. (All undesignated statutory references are to this code.) Gary contends the juvenile court erred when it declined to find that the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) applied to the relationship with his son, G.A. Jose contends the juvenile court abused its discretion when it denied his section 388 petition requesting that the section 366.26 order be vacated and he be given six months of additional services. Alternatively, Jose asserts the juvenile court erred when it declined to find that the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) applied to the relationship with his son, J.N. As we explain below, we reject Gary's contentions, but reverse as to Jose.
GENERAL FACTUAL AND PROCEDURAL BACKGROUND
Mother has four children, J.N. (born 2009), G.A. (born 2007), F.U. (born 2006) and M.H. (born 2004), each with a different father. In January 2011, the San Diego County Health and Human Services Agency (the Agency) received a referral that Mother had left the children with the maternal grandparents for days at a time and was not attending to their needs. There were also concerns regarding Mother's lack of involvement and unwillingness to receive in-home services for F.U., who has autism.
In February 2011, Mother was arrested and incarcerated for possession of drug paraphernalia. She did not attend a Team Decision Meeting and refused the Agency's offer of services. The Agency filed separate petitions on behalf of the children. The Agency detained the children and ultimately placed then in the home of the maternal grandmother.

Defendant Theodore A. Pinnock, a now-disbarred attorney residing in the Philippines, filed over 200 cases on behalf of plaintiff Noni Gotti against businesses for alleged violations of the Americans with Disabilities Act (ADA), allegedly without her knowledge and consent and for disabilities from which she did not suffer.
Gotti thereafter filed this action against Pinnock, his law firm, and his partner, David C. Wakefield.[1] In her second amended complaint—the applicable complaint in this action—(hereafter the complaint), she asserted claims for (1) return of case files, (2) accounting, (3) unprivileged use of identity, (4) breach of fiduciary duty, (5) negligence, (6) professional negligence, (7) breach of contract, (8) money had and received, (9) imposition of constructive trust, (10) forgery, and (11) constructive fraud. In her complaint she also described several other individuals who Pinnock had used to file similar unmeritorious claims to show a pattern of activity that would support an award of punitive damages.
Pinnock, acting in propria persona, responded to the complaint by filing an anti-SLAPP special motion to strike under Code of Civil Procedure (all further undesignated statutory references are to the Code of Civil Procedure) section 425.16. In that motion Pinnock asserted that (1) the complaint was based upon his protected activity of filing litigation in state and federal courts to enforce the rights of disabled persons under the ADA, and (2) the references in the complaint to other litigation filed by Pinnock on behalf of other plaintiffs were improper.

A jury convicted defendant Mario German Banales of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 1) and of receiving a stolen motor vehicle (Pen.[1] Code, § 496d, subd. (a); count 2). In a bifurcated proceeding, the trial court found Banales had two prison priors within the meaning of section 667.5, subdivision (b), struck one of those priors and sentenced Banales to state prison for four years.
Banales raises three issues in this proceeding. First, he contends the sentencing court's order requiring him to pay $240 in restitution pursuant to section 1202.4, subdivision (b)(1) violated the constitutional prohibition against the ex post facto application of a law because the statutory minimum at the time he committed the instant offenses was $200 and because the court allegedly intended to impose the statutory minimum. Second, he contends the court erred in imposing an order preventing him from entering the premises of the Brawley Elementary School District (district) because he was denied probation. Finally, he contends the court erred in ordering him to pay $100 in court-appointed attorney fees pursuant to section 987.8.
As we explain, we agree with Banales's contention that the order to stay away from the premises of the district be stricken, inasmuch as Banales was denied probation. In all other respects, we affirm Banales's judgment of conviction.

A jury convicted Anthony Moats of burglary (Pen. Code, § 459)[1] and possession of a forged check (§ 475, subd. (c)). The court sentenced him to eight years in prison. On appeal, Moats contends the court erred by imposing a two-year sentence for an enhancement based on committing the current offense while out on bail on a case that was subsequently dismissed. He also contends the statutory construction of section 4019 and principles of equal protection entitle him to additional presentence custody credits. We conclude the court improperly imposed an additional two-year sentence for an out-on-bail enhancement on a case that was subsequently dismissed, and remand for resentencing. We also conclude that under the rules of statutory construction, the enhanced conduct credit provision of section 4019 applies only to defendants who committed their crimes on or after October 1, 2011, and section 4019 does not violate principals of equal protection. (U.S. Const. 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) The judgment is affirmed in part, reversed in part and remanded for resentencing.

In April 2010, we reversed the judgment in favor of escrow holder and settlement agent North American Title Company, Inc. (North American) and remanded with instructions for the trier of fact to determine whether North American breached the closing instructions contract between it and wholesale residential mortgage lender Plaza Home Mortgage, Inc. (Plaza), after North American distributed $53,853 to the attorney in fact of the buyer of real property that was neither authorized by the closing instructions nor disclosed to Plaza before North American made the distribution. (See Plaza Home Mortgage, Inc. v. North American Title Co., Inc. (2010) 184 Cal.App.4th 130.) On remand, the court sitting as trier of fact found North American breached the closing instructions contract with Plaza and awarded Plaza $313,205.56 plus interest.
In this proceeding, North American challenges Plaza's entitlement to, and award of, damages. North American contends the award of all the funds North American was holding when it received the last-minute escrow instruction from the seller was premised on a finding that is unsupported by the record, namely that had North American advised Plaza of the amended instruction, Plaza could have unwound the loan transaction and recouped the funds in North American's possession/account. North American alternatively contends that, as a matter of law, Plaza's damages should be limited to $53,853—the amount unlawfully distributed by North American to the buyer's attorney in fact. We disagree with both contentions and affirm the judgment entered in favor of Plaza.