CA Unpub Decisions

Following the theft of a computer from his workplace, defendant Joe Gualberto Silva was charged by information with second degree commercial burglary and grand theft. (Pen. Code, §§ 459, 487, subd. (a).)[1] A jury found defendant guilty of both charged offenses. Sentenced to two years in state prison and ordered to pay restitution, defendant appeals, arguing the court erred in allowing the trial to proceed in his absence, ineffective assistance of counsel, evidentiary error, and sentencing error. We shall remand for modification of defendant’s sentence; in all other respects, we shall affirm the judgment.

Police officers conducted a protective sweep after they arrested defendant pursuant to a warrant and secured him in a police vehicle. During that sweep, they found a rifle. Defendant was charged with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1))[1] plus allegations of a prior strike conviction (§§ 667, subds. (b)-(i); 1170.12) and service of three separate prior prison terms (§ 667.5, subd. (b)).
Following the denial of defendant’s suppression motion (§ 1538.5), he pleaded no contest to the firearm possession charge and admitted the prior strike conviction in exchange for the dismissal of the prior prison term allegation and an effective term of 16 months (eight-month midterm doubled because of the strike) to run consecutive to a 14-year sentence defendant was then serving.

Plaintiff, Raymond L. Hellen, the administrator of his deceased wife’s estate, appeals from an order dismissing his declaratory relief petition. Plaintiff, in his capacity as administrator, sought to invalidate a trust deed held by the objector, JPMorgan Chase Bank, securing a loan to the decedent. The probate court dismissed the petition after sustaining a demurrer without leave to amend on statute of limitations ground. We affirm.

Plaintiff, cross-defendant, and appellant The Bank of East Asia (U.S.A.), N.A., appeals from a judgment following an order granting summary judgment in favor of defendants, cross-complainants, and respondents Fariba Javaherian and Ierra Venture, LLC, in this action arising out of two deeds of trust on the same properties. The Bank contends that its deed of trust is entitled to priority, because it was recorded before Javaherian’s deed of trust was indexed. We agree and reverse with directions.

J.M. (father) appeals from the dispositional orders of April 11, 2012, after the dependency court declared his son a dependent of the court under Welfare and Institutions Code[1] section 300, subdivision (b). Father contends the orders removing his son from his custody, requiring him to participate in drug testing, and requiring his visits to be monitored were an abuse of discretion. We affirm.

Carolyn L. (mother) appeals from a June 6, 2012 dependency court order terminating parental rights to her son, Michael, under Welfare and Institutions Code[1] section 366.26. She contends the order must be reversed because the dependency court omitted to make required findings under the Indian Child Welfare Act of 1978 (the ICWA) (92 Stat. 3069, 25 U.S.C. §§ 1901-1963). As mother failed to object in the trial court, she forfeited her contention, and we decline to review it. Accordingly, we affirm the order.

A jury convicted defendant, Latrice Starvel Murray, of petty theft with a prior conviction. (Pen. Code,[1] § 666.)[2] Defendant’s three-year sentence was doubled under sections 667, subdivisions (b) through (i) and 1170.12, and enhanced one year pursuant to section 667.5, subdivision (b). Defendant's total sentence is seven years. Although she admitted the truth of four prior convictions allegations, defendant argues: she never admitted that she served time in state prison for any of those convictions; she did not admit she remained free of prison custody for a period of five years; and the prosecution offered no evidence to that effect. We disagree.

Defendants, Thomas K. Peterson, M.D. and his professional corporation, Thomas K. Peterson, M.D., Inc., have moved to dismiss the purported appeal of plaintiffs, Marguerita Ray and Frederick Hagen. On January 6, 2012, judgment was entered in favor of a codefendant, St. Francis Medical Center, and against plaintiffs. The judgment was signed by the Honorable Rose Hom. On March 5, 2012, plaintiffs filed a notice of appeal from the January 6, 2012 judgment in favor of the codefendant, St. Francis Medical Center.

A modification decision.

Defendant Adrian Devon Corbray was convicted and sentenced to four years in prison on five counts of pimping and pandering. On appeal he contends that he should receive additional conduct credit for presentence confinement pursuant to the October 2011 amendments to Penal Code section 4019 (§ 4019), which took effect after his offenses were committed but before judgment was entered against him. He acknowledges that the amendments included a declaration that they would operate only prospectively, but he seeks to invalidate that declaration on the ground that it violates his right to equal protection of the laws. The Supreme Court has recently held that a defendant seeking the benefit of a previous similar amendment could not satisfy the first requirement of an equal protection challenge with respect to credit earned before the effective date of the amending statute, because he was not situated similarly to those who earned credit after the effective date of the liberalizing amendment. (People v. Brown (2012) 54 Cal.4th 314, 328-329 (Brown).) This decision clearly disposed of defendant’s argument insofar as it concerns credit earned prior to the effective date of the 2011 amendments. Having asked the parties to brief the narrower question whether the decision also disposed of his claim as it concerned time in confinement between the effective date and sentencing, we have concluded that we are constrained by existing authority, including our own decision in People v. Kennedy (2012) 209 Cal.App.4th 385 (Kennedy), to reject defendant’s claim in its entirety. We will therefore affirm the judgment.

Defendant Gregory Hughes brings this appeal from a judgment convicting him of criminal offenses. He asserts that the trial court erred in its determination of custody credits for presentence confinement and in its calculation of a restitution fine. We reject the first contention in conformity with a California Supreme Court decision issued while this appeal was pending. Respondent concedes error on the second point. We will therefore modify the judgment and affirm as modified.

Defendant Raul Catalan appeals from an order reinstating probation. His sole complaint is that the trial court deviated impermissibly from the directive of this court, in a previous appeal, modifying a condition of probation limiting defendant’s freedom to attend court proceedings. We find no error, and affirm.

After Shu Hung was forced to retire from her position as a Kaiser outpatient pharmacist, a position she had held for more than several decades, she brought an action for damages. The trial court granting respondents' motion for summary judgment (Code Civ. Proc., § 437c)[1] and a judgment was entered in favor of respondents Kaiser Foundation Health Plan, Inc., ("KFHP") and Kaiser Foundation Hospitals ("KFH"),[2] and Chris Oliva, the pharmacy director who made the decision to terminate Hung.
On appeal, Hung maintains that the judgment must be reversed because triable issues of material fact remain as to whether the articulated reasons for the decision to terminate her were pretext for discrimination on the basis of disability, age, and gender under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and for retaliation on the basis of her exercise of rights under the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C., § 2601 et seq.). According to Hung, her evidence showed that the four medication-related incidents on which the termination decision was supposedly based were either fabricated or "occurred in a dramatically different fashion" than described by Oliva and, therefore, a jury should be permitted to "decide whose story is more credible."
Respondents presented sufficient evidence of legitimate, nondiscriminatory and nonretaliatory reasons for the decision to terminate appellant Hung. The evidence as a whole was insufficient to support a reasonable inference that the proffered reasons were untrue or those reasons were merely a pretext for discrimination or retaliation. Accordingly, we affirm.

Defendant Gregory N. Faulk appeals a judgment of conviction following a jury trial during which he was found guilty of carjacking (Pen. Code, § 215), unlawful taking of a car (Veh. Code, §10851, subd. (a)), and second degree burglary (Pen. Code, § 459-460, subd. (b)).
On appeal, defendant asserts the judgment must be reversed because he was denied effective assistance of counsel during trial, because his counsel did not request a modification of CALCRIM No. 350. In addition, defendant asserts that the court improperly imposed a five-year enhancement for each of his three prior serious felony convictions.