CA Unpub Decisions
California Unpublished Decisions
|
Defendant Karl Phillips appeals his conviction for second degree robbery, based upon a guilty plea entered after the trial court had denied his motion to suppress evidence. His appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 raising no issues. Defendant was informed of his right to file a supplemental brief, which he has not done. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment. |
|
German Quinonez filed a putative class action against Empire Today, LLC (Empire), a national flooring and window treatment business, alleging various Labor Code violations. Empire moved to dismiss for improper venue or, in the alternative, to compel arbitration pursuant to a form subcontractor agreement Quinonez signed. The trial court denied the motion. Among other things, the court concluded the arbitration provision in the agreement was procedurally and substantively unconscionable.
Empire appeals. It contends: (1) the Illinois choice of law provision is enforceable; (2) it has standing to enforce the arbitration provision; (3) the arbitration provision is enforceable under Illinois and California law, particularly in light of AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___ [131 S.Ct. 1740] (Concepcion); (4) the court erred by refusing to sever the allegedly unconscionable provisions from the remainder of the agreement; and (5) the court erroneously concluded Empire failed to prove the agreement was “the actual agreement.†We issued a notice pursuant to California Rules of Court, rule 8.276 informing counsel for Empire that we were considering imposing sanctions on our own motion on the grounds that the appeal is frivolous and that counsel failed to comply with its ethical duty to call our attention to law unfavorable to Empire’s position, specifically, Samaniego v. Empire Today, LLC (2012) 205 Cal.App.4th 1138 (Samaniego). Counsel for Empire responded to the notice. We decline to impose sanctions on our own motion. Court Affirm. |
|
T.C., a ward of the court, appeals from a juvenile court dispositional order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (now the Division of Juvenile Facilities (DJF)). The commitment order was entered after appellant was found to have violated the terms of his probation imposed on two sustained petitions for committing acts that constituted violations of Penal Code sections 243.4, subdivision (a) (sexual battery) and section 288, subdivision (b)(1) (lewd act on a child). On direct appeal, appellant challenges both the finding that he violated probation and the DJF commitment. He also contends he was entitled to a jury trial on the underlying sexual offenses supporting his adjudication for violating Penal Code section 288 before the court imposed the mandatory “lifetime sanctions†of sex offender registration (Pen. Code, §§ 290, 290.008, 290.016) and the attendant mandatory consequence of sex offender residency restriction (Pen. Code, § 3003.5, subd. (b)) after his release from DJF.[1] Appellant has also filed a petition for writ of habeas corpus challenging his DJF commitment.[2] We affirm the dispositional order and summarily deny the petition for writ of habeas corpus. |
|
Dung My Pham appeals from a judgment after a jury convicted her of theft with prior convictions. Pham argues there were two evidentiary errors. We disagree and affirm the judgment. FACTS Pham bought a Yorkshire Terrier from The Puppy Store (the Store) in the Mainplace Mall (the Mall). The owners Boris Jang and Jisun Lee obtained her contact information. About one week later, Pham, her sister, Yen Chu, Pham’s daughters, and a couple friends went to the Mall. Pham and Chu went to Nordstrom and the girls went to the Store. One of the girls called Chu because the Store does not permit unaccompanied minors to play with the dogs. Chu arrived at the Store first and then Pham, who was carrying her purse and a Nordstrom bag. |
|
A jury convicted defendant Victor George Gillespie of sexual battery by restraint (count 2; Pen. Code § 243.4, subd. (a)),[1] first degree burglary (count 3; §§ 459, 460, subd. (a)), and misdemeanor resisting arrest (count 4; § 148, subd. (a)(1)). Upon the People’s motion, the court dismissed allegations defendant had two serious felony prior convictions under section 667, subdivision (a)(1). Defendant then admitted he had suffered two prior strikes under the “Three Strikes†law. (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) The court sentenced defendant to 25 years to life in prison on count 2.[2]
On appeal defendant asserts the court erred by declining to strike his prior strikes and by miscalculating his presentence conduct credits. We agree the trial court miscalculated his conduct credits. In all other respects, we affirm the judgment. |
|
Appellant Herbert Brown contends the parole revocation fine imposed pursuant to Penal Code[1] section 1202.45 at the time of his original sentence should be stricken. Respondent maintains that because the original sentence was recalled, the fine is no longer an issue. Respondent does acknowledge, however, that if the court were to find imposition of the fine remained in effect, the fine should be stricken. The court finds that when the trial court recalled its original sentence, imposition of the fine was effectively vacated. Therefore, the court will affirm the sentence imposed April 17, 2012.
|
|
Jeffrey Scott Kirschenmann appeals from an order denying the writ of mandate he filed in the trial court, which sought to preclude enforcement of an order issued by the Department of Motor Vehicles (DMV) suspending his driving privilege after he was arrested for driving with a blood-alcohol content in excess of 0.08 percent, in violation of Vehicle Code section 23152, subdivision (b).[1]
Kirschenmann’s primary argument is that there was insufficient evidence to identify him as the driver of the vehicle. The basis for this argument is an assumption that identity can be established only by eyewitness testimony. As we shall explain, the circumstantial evidence in the record adequately identified Kirschenmann as the driver of the vehicle. Kirschenmann also argues that omissions in the forms prepared by the arresting officer violated section 13380, thus precluding suspension of his driving privilege. There is no merit to this argument either, and we shall affirm the order denying his petition. |
|
In this matter we have reviewed the petition and offered real party the opportunity to file opposition; real party agrees that petitioner is entitled to relief. Accordingly, issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
DISCUSSION Petitioner is serving a life term and is therefore qualified to receive post-conviction discovery pursuant to Penal Code section 1054.9. It is immaterial that he has not yet filed a petition for habeas corpus; he may seek discovery in order to pursue the possibility of such a petition. (In re Steele (2004) 32 Cal.4th 682.) We express no opinion on whether petitioner’s delay in seeking relief will bear upon the proper disposition of any habeas corpus petition. (See Catlin v. Superior Court (2011) 51 Cal.4th 300.) Accordingly, the trial court’s stated basis for denying the request for discovery was in error, and the request should have been considered on the merits. |
|
In this matter we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
|
|
Minors H.T. (born January 2010), G.T. (born August 2007), C.T. (born November 2005), and M.G.[1] (born October 2000) (collectively minors) came to the attention of plaintiff and respondent San Bernardino County Children and Family Services (the department) when the younger three siblings’ paternal aunt called law enforcement on January 17, 2010, to report defendant and appellant D.T. (father) had left the elder three siblings in her care with no provision for support and failed to return when promised. Defendant and appellant T.T. (mother) had just given birth prematurely to H.T. and tested positively for drugs several times while in the hospital.[2]
The juvenile court removed minors from parents’ custody and offered parents 18 months of reunification services. After a contested 18-month review hearing on August 16, 2011, the court terminated parents’ reunification services and set the Welfare and Institutions Code section 366.26 hearing.[3] On April 12, 2012, the juvenile court suspended parents’ visitation with the three younger siblings, upon the department’s request, in order that they might “adjust and stabilize in their†new prospective adoptive placement. |
|
In this matter, we have requested a response from real party in interest, but none has been received. Given the lapse of time since the petition was filed, we consider it appropriate simply to authorize petitioner to submit a new application for a fee waiver to the trial court containing her updated information, and to direct the trial court to consider any such application under the statutory standards.
|
|
The defendant, Todd Michael Smith, also known as “Casper,†along with two others, committed a home invasion robbery of the residence of Amber F. and Harley B., stealing property from the bedrooms of each victim. Defendant had gone to the residence looking for Josh V., whom he blamed for the recent home invasion robbery of defendant’s girlfriend. Christina R., also looking for Josh, accompanied defendant and a third male to the residence of Amber and Harley, where they heard Josh could be found. Defendant was convicted of two counts of residential robbery (Pen. Code,[1] §§ 211, 213, subd. (a)(1)(A)) following a jury trial. Defendant eventually admitted one prison prior (§ 667.5, subd. (b)), and one prior conviction for a serious felony (nickel prior). (§ 667, subd. (a).) He was sentenced to an aggregate term of nine years in prison and appealed.
On appeal, defendant argues that (a) there is insufficient evidence to support the conviction of robbery of Harley; (b) the imposition of the increased court security fee, pursuant to the amended provisions of section 1468.5, was improper; and (c) his right to effective assistance of counsel was violated by his trial attorney’s failure to adequately challenge his identification. We modify the judgment to reduce the court facility fee, but otherwise affirm. |
|
This action arises from Mount San Jacinto Community College District (the District) terminating Dr. Temma K. Dadah’s employment because Dr. Dadah used her District-issued credit card to gamble at local casinos during work hours and lied about it. Dr. Dadah appeals judgment entered following the trial court granting the District’s motion for summary judgment and denying Dr. Dadah’s cross-motion for summary adjudication. Dr. Dadah contends triable issues of fact exist as to whether there was good cause for terminating her employment under Labor Code section 2924.[1] Dr. Dadah also argues there is a triable issue as to whether the District terminated her based on her psychological disability, without reasonably accommodating her disability. In addition, Dr. Dadah argues a triable issue exists as to whether the District intentionally inflicted emotional distress on Dr. Dadah.
We conclude it is undisputed that the District had good cause to terminate Dr. Dadah and her termination was not based on any psychological disability. We also conclude Dr. Dadah failed to present any evidence the District failed to provide a reasonable accommodation for her psychological disability. In addition, Dr. Dadah failed to present any evidence supporting her fourth cause of action for intentional infliction of emotional distress.[2] Accordingly, the judgment is affirmed. |
Actions
Category Stats
Listings: 77266
Regular: 77266
Last listing added: 06:28:2023
Regular: 77266
Last listing added: 06:28:2023
