CA Unpub Decisions

Appellant Jesus Humberto Kobayashi, Jr. was charged with one count of committing a lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)/count 1)[1] and three counts of forcible lewd or lascivious acts on a child under the age of 14 (§ 288, subd. (b)(1)/counts 2, 3 & 4). The information also alleged two convictions in 1999 for violations of section 288, subdivision (b) within the meaning of section 667.61, subdivision (d)(1), two prior strike convictions (§ 667 subds. (c)-(j)), and two prior serious felony convictions (§ 667, subd. (a)). Under the charges, appellant faced a prison term of 25 years to life. On the day set for trial, appellant pled no contest to two counts and admitted one prior strike conviction for a stipulated prison term of 20 years. The remaining allegations were dismissed. Appellant subsequently hired new counsel and moved to withdraw his plea. The court denied his motion and imposed the 20-year term. Appellant appeals, contending the trial court erred and abused its discretion by denying his motion. We affirm.

On May 23, 2009, appellant Jacqueline Renee Tamplin committed burglary. On August 17, 2011, she pled no contest to the burglary charge and admitted one prior strike conviction. At the September 14, 2011, sentencing hearing, the trial court awarded presentence conduct credit pursuant to former Penal Code section 4019.[1] (Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.) Tamplin contends she is entitled to additional presentence credit based upon the amendments to section 4019 that became operative October 1, 2011. (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011.) We disagree and will affirm the judgment.

On appeal, following his conviction for first degree murder, defendant David John Wickersham contends there is insufficient evidence of deliberate and premeditated murder. Defendant argues his statements to interrogating officers should have been excluded as involuntary for lack of a knowing and intelligent waiver of his right to remain silent. Defendant finally contends that he was denied the right to a fair trial because records of his prior mental commitments, relied upon by his expert witness in the sanity phase of his trial, were excluded by the trial court as inadmissible hearsay. We reject these arguments and affirm the judgment.

In the early morning hours of July 2, 2009, Mary Bustamonte’s body was found in the burned remains of the motel room where she had been living. She had suffered burns to 85 percent of her body, and firefighters initially believed she had been the victim of an accidental fire. However, the autopsy revealed that she was a homicide victim – she had not died from the fire or smoke inhalation, but she suffered blunt force trauma to her head and internal neck injuries consistent with strangulation. Her blood was found on the shower curtain in the motel room’s bathroom.
Appellant/defendant Johnny Aguilar, Jr. (defendant), had been staying with Bustamonte in the motel room. When another resident noticed smoke emerging from Bustamonte’s motel room, defendant was walking away from the room and asked the resident if he had a cell phone so defendant could call 911. The resident said “no” but directed defendant to the motel’s payphone, where defendant was later seen holding the receiver. As firefighters arrived at the scene, the motel’s manager briefly spoke with defendant and asked him whether Bustamonte was still in her room. Defendant replied: “ ‘She was a few minutes ago,’ ” and added: “ ‘That’s what karma gets you.’ ”
At trial, defendant’s mother testified that defendant arrived at her house. He was sad, crying, and emotional, and said: “ ‘I killed somebody.’ ” Defendant’s sister testified that defendant told her that he killed Bustamonte because she was a snitch, and that he strangled her with the shower curtain, kicked her in the head, and started the fire to make it appear as if she had fallen asleep while smoking.

Pursuant to a plea agreement, defendant and appellant Mitchell David Clay pled no contest to misdemeanor assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) In exchange, the remaining allegation was dismissed, and defendant was sentenced to 365 days with credit for time served of 365 days. Following a restitution hearing, defendant was ordered to pay victim restitution in the amount of $4,961.40, plus a 10 percent collection fee. Defendant appeals from the judgment, challenging the sentence or other matters occurring after the plea. We will affirm the judgment.

On March 2, 2012, the juvenile court declared T.P. a ward under Welfare and Institutions Code, section 602, subdivision (a), after T.P. admitted to carrying a concealed dirk or dagger (Pen. Code, § 21310). The court placed T.P. on probation at home. One of the probation conditions was that he return home each night by 10:00 pm.
On March 9, 2012, another juvenile wardship petition was filed, alleging defendant violated his probation by failing to return home by 10:00 p.m. on March 3, 2012.
At the contested jurisdictional hearing held on April 23, 2012, T.P.’s mother testified that on March 3, 2012, defendant left home to go to a basketball game and never returned. T.P. did not have permission to stay out late and did not contact his mother until he was taken into custody three days later. The juvenile court found that T.P. had violated the terms of his probation and ordered him to remain in custody until the disposition hearing set for May 7, 2012.
At the May 7, 2012, disposition hearing, the juvenile court continued T.P. as a ward of the court. The court ordered T.P. to serve 63 days in custody, with credit for 63 days already served. The court released T.P. to the custody of his family and set a review hearing for 60 days out. This appeal followed.

Defendant and appellant Daniel Edward Flores was charged by information with two counts: assault by means of force likely to produce great bodily injury (count 1; Pen. Code, § 245, subd. (a)(1));[1] and active participation in a criminal street gang (count 2; § 186.22, subd. (a)).[2] The assault charge under count 1 was based upon an alleged assault against Matthew Carranza. An element of the active gang participation crime under count 2 is that defendant willfully promoted, furthered, or assisted in felonious criminal conduct by members of a criminal street gang. In this case, the specific felony relied on by the prosecution to establish this element was the assault against Carranza alleged in count 1.

A jury acquitted defendant of the assault alleged in count 1 and found the related enhancement allegations not true. The jury found him guilty of active participation in a criminal street gang under count 2. The court sentenced him to one year four months in prison, suspended the sentence, and granted defendant three years’ probation.
In this appeal, defendant contends there is insufficient evidence to sustain the conviction on count 2 for the sole reason that the jury acquitted him of the assault charge in count 1. For the reasons expressed below, we conclude that the acquittal on count 1 is not inconsistent with, and does not preclude, the jury’s verdict on count 2. We therefore affirm the judgment.

Defendant George Wayne Seymour is serving a seven-year sentence (four years in local custody and three years on supervised release) after pleading guilty to one count of possessing methamphetamine for sale with enhancements.

Plaintiff and appellant, Roxanne Herrera, sued her former employer, defendant and respondent, CU Cooperative Systems, Inc. (CO-OP), alleging three violations of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.)[1] based on her pregnancy. She alleged that CO-OP wrongfully terminated her because she was pregnant (first cause of action), wrongfully denied her pregnancy disability leave (PDL) by terminating her while she was on PDL (second cause of action), and wrongfully failed to accommodate her pregnancy-related medical condition, gestational diabetes, by refusing to allow her to eat meals at her desk (third cause of action). The trial court entered judgment in favor of CO-OP after granting its motion for summary judgment. Herrera appeals, claiming she presented sufficient evidence to raise triable issues of fact on each of her three causes of action. We disagree and affirm the judgment in favor of CO-OP.

N.S. appeals a juvenile court order terminating her parental rights to her minor son, J.H., pursuant to Welfare and Institutions Code section 366.26.[1] N.S. challenges the sufficiency of the evidence to support the court's finding that the parent-child relationship exception to termination of parental rights did not apply. We affirm the order.

Steven Bryant pled guilty to grand theft from a person (Pen. Code, § 487, subd. (c)) and, in return, all other counts and two prison prior allegations were dismissed.[1] The court (Judge Katz) imposed a three-year prison sentence but stayed execution of the sentence and granted Bryant formal probation, including 120 days in custody. A few months after being released from jail, Bryant admitted to violating the terms and conditions of his probation and probation was revoked. The court (Judge Elias) vacated the stay on the three-year sentence. Pursuant to section 1170, subd. (h), the court ordered Bryant to serve his prison sentence in local custody.

A jury convicted Samuel Brians of attempted murder (Pen. Code, §§ 666/187, subd. (a)), battery with serious bodily injury (id., § 243, subd. (d)),[1] mayhem (id., § 203), assault with a firearm (id., § 245, subd. (a)(2)), two counts of unlawfully taking and driving a vehicle (Veh. Code, §10851, subd. (a)), and two counts of receiving a stolen vehicle (Pen. Code, § 496, subd. (d)). In connection with the attempted murder count, the jury found Brians intentionally and personally discharged a firearm and proximately caused great bodily injury to the victim (Pen. Code, § 12022.53, subd. (d)), personally inflicted great bodily injury upon the victim (id., § 12022.7, subd. (a)), and intentionally and personally discharged a firearm (id., § 12022.5, subd. (a)).[2] The jury also sustained allegations that Brians intentionally and personally discharged a firearm (id., § 12022.5, subd. (a)) in connection with the attempted murder and assault with a firearm counts.
The trial court sentenced Brians to a determinate term of 10 years four months. The court also imposed a consecutive indeterminate sentence of 25 years to life for the Penal Code section 12022.53, subdivision (d) allegation attached to the attempted murder count.

Woodrow Terrance Walker appeals a judgment following a jury verdict convicting him of one count of resisting an executive officer (Pen. Code., § 69)[1] and one count of battery on an officer (§ 243, subd. (b)). Walker contends the trial court abused its discretion by halting his cross-examination of a witness and commenting that the witness's prior statement was ambiguous, rather than inconsistent. He argues the court violated his rights to confront a witness and present a complete defense. We conclude Walker forfeited these claims on appeal because he did not raise the issues at trial. Nevertheless, we conclude the court's curtailment of the cross-examination and ambiguity comment were not an abuse of discretion, and even if the court erred, the error was harmless.

Nour Eddine Elasali filed this action against respondents Sureride Charter, Inc. (Sureride), Rich Illes, Lorenzo Ortiz, Robert Vint, and Lorraine Tokarz. Respondents filed a motion for judgment on the pleadings. We are unable to discern the precise nature of the claims asserted in the complaint or the grounds that respondents raised in their motion for judgment on the pleadings, because neither the complaint nor the motion for judgment on the pleadings is contained in the record on appeal.[1]
Respondents' request for judicial notice in support of their motion for judgment on the pleadings is in the record on appeal. Respondents contended that the documents to be judicially noticed demonstrate that the issues in the present case were adjudicated in a prior action, and that the claims in this case are barred by the statute of limitations. The trial court granted respondents' request for judicial notice and granted respondents' motion for judgment on the pleadings, without leave to amend. In its order, the court stated that the judicially noticed documents demonstrated that Elasali's causes of action are all time barred.
On appeal, Elasali contends that the trial court erred in granting the motion for judgment on the pleadings, in denying a motion to disqualify the trial judge, and in denying a motion for change of venue. We affirm.