CA Unpub Decisions

This case involves two individuals, defendants and appellants Donnie Ray Cole and Tony Eugene Williams (collectively “defendants”). A jury found Cole guilty of two counts of robbery. (Pen. Code, § 211.)[1] Cole admitted suffering three prior convictions for which he served prison terms. (§ 667.5, subd. (b).) The trial court sentenced Cole to prison for a term of nine years. The jury found Williams guilty of two counts of robbery (§ 211) and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). In regard to both of Williams’s robbery convictions, the jury found true the enhancement that Williams personally used a firearm during the commission of the felonies. (§ 12022.53, subd. (b).) Williams admitted suffering three prior serious felony convictions and three prior strike convictions (§ 667, subds. (a), (c) & (e)(2)(A).) The trial court sentenced Williams to prison for a determinate term of 50 years and an indeterminate term of 50 years to life.
Cole raises four issues on appeal. First, Cole asserts the trial court erred by permitting a law enforcement officer to testify that, in his opinion, Cole was guilty. Second, Cole contends the prosecutor committed misconduct by misstating the reasonable doubt standard during closing argument. Third, Cole claims his trial counsel was ineffective for failing to object to the prosecutor’s alleged misconduct during closing argument. Fourth, Cole asserts the cumulative effect of the foregoing errors resulted in a denial of his right to a fair trial.
Williams raises two issues on appeal. First, Williams asserts the prosecutor committed misconduct by misstating the reasonable doubt standard during closing argument. Second, Williams contends his trial counsel was ineffective for failing to object to the prosecutor’s alleged misconduct during closing argument. We affirm the judgments.

In June 2010, Miguel H., who was a ward of the juvenile court, admitted he had violated Penal Code section 211 (robbery). Seven other theft-related counts were dismissed. The court continued Miguel as a ward, placed him on probation with standard enumerated terms and conditions, and committed him to a one-year Breaking Cycles program.
In September 2010, Miguel admitted he had violated two conditions of his probation: wearing gang clothing and violating his curfew. The court continued the previous commitment to Breaking Cycles and required him to complete 45 days of house arrest under an electronic surveillance program. In December 2010, Miguel admitted violating three other conditions of probation. The court continued the disposition for three months so it could evaluate how Miguel performed under the probation department's highest level of supervision. In March 2011, Miguel admitted six violations of probation conditions. On the same day, the court committed him to the Youthful Offender Unit for a maximum period of 480 days.

Francis Collins appeals from a judgment convicting him of transportation of methamphetamine and related offenses. He argues the judgment must be reversed because the trial court erred in denying his suppression motion. We find no error in this ruling.
Collins also argues weight enhancements attached to his offenses must be reversed because he was charged and convicted under the wrong subdivision of the Health and Safety Code weight enhancement provision. We conclude this was a clerical or technical error that did not violate his due process right to notice of the charges against him, and we modify the judgment to correct the mistaken subdivision citation.
As to his sentence, Collins asserts, and the Attorney General concedes, that the court erred in failing to stay the sentences on all but the principal count (count 3) under Penal Code section 654. We agree and modify the judgment to stay the sentences on counts 1, 2, and 4.
As so modified, we affirm the judgment.

In this case, which we review under the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), we affirm the appellant's murder conviction.

Plaintiff Norma Steward appeals from a judgment entered in favor of defendant Board of Trustees of the California State University (CSU). The trial court granted CSU's motion for summary judgment on the ground that the undisputed facts establish that CSU may not be held liable for an accident caused by CSU employee (and codefendant in the underlying action) Dennis Guseman. Guseman was on his way to have breakfast with a former colleague before going to work when the accident occurred.
On appeal, Steward argues that summary judgment in CSU's favor was improper because there remain material questions of fact related to either of two possible theories of respondeat superior liability. First, she contends that the trial court erred in concluding that, as a matter of law, Guseman's breakfast meeting with his former colleague was a personal errand and did not come within the scope of his employment. According to Steward, if the trial court had properly concluded that there remains a factual dispute as to whether the breakfast meeting had a business purpose, then it is possible that Guseman could be found to have been on his way to "work" at the time of the accident, and that his commute to the breakfast meeting could therefore be considered to fall within the scope of his employment.
Steward next argues in the alternative that even if Guseman's planned breakfast was a purely personal endeavor as a matter of law, CSU could still be liable under the theory that Guseman's commute that morning was within the scope of his employment, and that the breakfast meeting was simply a minor deviation from, rather than a substantial abandonment of, his commute to work at the CSU San Marcos (CSUSM) campus.
We affirm the judgment in favor of CSU because Steward cannot prove that Guseman's conduct in driving to breakfast that morning was reasonably related to his job, or that his personal errand to meet a former colleague and friend for breakfast was reasonably foreseeable in light of CSU's business or Guseman's job responsibilities, such that CSU may be held liable for the accident that Guseman caused on his way to breakfast.

Patricia Ramirez appeals from an order denying her motion to certify a class on her unfair competition claim (UCL) against Balboa Thrift and Loan (Balboa). Ramirez's UCL claim is based on Balboa's alleged violation of the Rees-Levering Motor Vehicle Sales and Finance Act (Rees-Levering Act or Act). (Civ. Code, § 2981 et seq.)[1]
Ramirez contends the court erred in denying her class certification motion because the court based its denial on an erroneous legal analysis of the Rees-Levering Act. We conclude this contention has merit and reverse the order. We remand to permit the court to consider the propriety of the class certification motion without the improper legal analysis.

After the United States Court of Appeals for the Ninth Circuit ruled that defendant Benny Leon, Jr.’s, 11-year upper term state prison sentence for voluntary manslaughter had resulted from prejudicial Blakely error (Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]), the trial court modified the sentence from 11 years to the middle term of six years. We concluded the trial court erred in believing the federal courts had curtailed its discretion to reimpose an upper term, and remanded for resentencing. On remand, the trial court imposed the upper term of 11 years. Defendant appeals, contending the trial court abused its discretion because it relied upon reasons that are “legally improper” and/or not supported by substantial evidence. Defendant also contends the court erred on resentencing in failing to calculate the total number of days in custody. Only the latter contention has merit. We shall remand for this amendment and affirm as modified.

Defendant Roland Gonzales appeals from an order of the trial court extending his mental health commitment for two years, from October 10, 2010 to October 10, 2012, pursuant to Penal Code section 1026.5, subdivision (b). (Further undesignated section references are to the Penal Code.) Defendant contends the extension order is procedurally and substantively flawed, because (1) there was no extension petition before the court at the time of the order, (2) the court failed to conduct a hearing on the extension, and (3) there is insufficient evidence to support the order. We reject each of defendant’s contentions and affirm the order.

Rene Ayala (respondent) sued Aldersgate Investment LLC (appellant), for unpaid wages. The trial court granted summary judgment in favor of Aldersgate, denying Ayala any recovery of wages or other damages. It denied, however, appellant's request for an award of attorneys fees under Labor Code section 218.5.[1] Appellant contends this was error. We agree and therefore reverse that portion of the judgment.

Appellants Melanie V. (mother) and Raymundo C. (father) appeal from the juvenile court’s order terminating their parental rights over their children, Isabel (born January 2008) and Raymond (born May 2010). Both parents contend the order must be reversed because the juvenile court abused its discretion by denying their respective Welfare and Institutions Code section 388[1] petitions requesting that the children be returned to their care, or in mother’s case, that additional reunification services be offered to the family. Mother further contends the order must be reversed because the parental exception to terminating parental rights set forth in section 366.26, subdivision (c)(1)(B)(i) applies.
The juvenile court did not abuse its discretion by denying mother’s and father’s respective section 388 petitions. Neither parent sustained the burden of establishing a change in circumstance or that granting their requests was in the children’s best interest. Substantial evidence supports the juvenile court’s determination that the parental exception to terminating parental rights did not apply. We therefore affirm the order.

K.R. (father) appeals jurisdictional findings and dispositional orders made with respect to nine-year-old T.R. Father contends the jurisdictional findings are not supported by substantial evidence and the matter must be remanded for notice under the Indian Child Welfare Act (ICWA). We reject father’s sufficiency contention and affirm the orders of the juvenile court but agree the matter must be remanded for notice under the ICWA.

Ricardo Cervantes appeals his conviction by jury for unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). Appellant admitted two prior prison term enhancements (§ 667.5, subd. (b)) and was sentenced to three years county jail. (Pen. Code, § 1170, subd. (h).) We affirm.

Pursuant to a negotiated plea agreement, Aaron Payne pleaded no contest to assault with a deadly weapon and admitted an allegation that he personally inflicted great bodily injury. (Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a).)[1] Payne further admitted a prior strike and two prior serious felony convictions. (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667, subd. (a)(1).) The trial court sentenced Payne to state prison for an aggregate term of 17 years in accord with the plea agreement.

Jorge N. (father) appeals from orders regarding visitation after his son Jose was put into guardianship with his maternal aunt, contending the trial court improperly granted the aunt authority to prohibit visitation and improperly terminated dependency jurisdiction. We conclude father forfeited his claims, which also fail on the merits.