CA Unpub Decisions

A jury convicted Glen Casaburi of unlawfully taking or driving a car and receiving stolen property. He contends that (1) the trial court should have granted his motion to strike a 1987 burglary conviction and (2) the abstract of judgment is incorrect. The denial of defendant’s motion to strike was not an abuse of discretion. However, the abstract of judgment must be corrected to reflect the court’s pronouncement staying the sentence on defendant’s second conviction. As corrected, the judgment is affirmed.

A former employee appeals from a grant of summary judgment, contending that triable issues of material fact exist as to whether his termination was motivated by the filing of a complaint alleging racial discrimination. We conclude that, because the defendant employer showed that its reason for terminating appellant was legitimate and nonretaliatory, and because appellant failed to counter this showing, summary judgment was proper.

A jury found defendant and appellant Jahziel Valenzo (defendant) guilty of first degree murder and further found true, inter alia, a gang enhancement allegation. On appeal, defendant raises four challenges to the jury’s true finding on the gang allegation. Defendant also contends that the trial court abused its discretion when it refused to allow defense counsel to argue that defendant acted out of fear when he shot the victim. And defendant contends that the trial court erred in imposing a 10-year sentence enhancement pursuant to Penal Code section 186.22, subdivision (b)(1)(C).[1]
We hold that substantial evidence supported the true finding on the gang allegation and that the trial court did not err in allowing the gang expert to testify concerning the gang allegation. We further hold that the trial court did not abuse its discretion when it did not permit defense counsel to argue that defendant acted out of fear. And we agree with the parties that the trial court erred when it imposed a 10-year sentence enhancement under section 186.22, subdivision (b)(1)(C).

A jury convicted defendants Kenny Delarios and Lacey Rodriguez of possession for sale of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11378[1] (count 1) and possession of a controlled substance with a firearm in violation of section 11370.1, subdivision (a) (count 3). The jury convicted Delarios of possession of a firearm by a felon with four priors in violation of Penal Code section 12021, subdivision (a)(1) (count 2). The jury found true the allegations that defendants were personally armed with a firearm in the commission or attempted commission of count 1 (Pen. Code, § 12022, subd. (c)). In a bifurcated proceeding, defendant Delarios admitted six prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
The trial court sentenced Delarios to nine years in state prison. The court exercised its discretion pursuant to Penal Code section 1385 and struck three prior prison term enhancements. (Pen. Code, § 667.5, subd. (b).) In count 1, the trial court imposed the midterm of two years as the base term, enhanced by the midterm of four years pursuant to Penal Code section 12022, subdivision (c) and three years pursuant to Penal Code section 667.5, subdivision (b). The trial court imposed two concurrent two-year terms for the convictions for possession of a firearm by a felon with four priors (count 2) and felony possession of a controlled substance with firearm (count 3).

Petitioners Amanda E. and Michael P. are the former prospective adoptive parents of three juvenile dependents, who range in age from nine to three years of age and have been freed for adoption. Petitioners in propria persona seek an extraordinary writ (Cal. Rules of Court, rule 8.456) from superior court orders upholding the removal of the children from petitioners’ care under Welfare and Institutions Code section 366.26, subdivision (n).[1] The superior court found removal of the children from petitioners’ care was in the children’s best interests based on evidence that all of them lost significant amounts of weight while placed with petitioners.
Petitioners contend they should have been given an opportunity to help the children gain weight. Petitioners also argue the court did not give them an opportunity to explain their thoughts. On review, we conclude their petitions are meritless.

It was alleged in a supplemental juvenile wardship petition (Welf. & Inst. Code, § 777)[1] that appellant, F.S., violated probation by failing to complete juvenile sex offender counseling. On March 26, 2012, appellant admitted the allegation, and at the disposition hearing on April 10, 2012, the court ordered appellant, who at that time was a little less than seven weeks shy of his 20th birthday, committed to juvenile hall for four years, with credit of 281 days for time served, and ordered, pursuant to section 208.5, that appellant be delivered to the custody of the county sheriff to serve the term imposed in county jail.
On appeal, appellant’s sole contention is that the juvenile court abused its discretion in ordering appellant to serve his commitment in county jail. We affirm.

On November 17, 2011, a Fresno County jury returned verdicts finding appellant Bob Dean Merryman guilty in count 2 of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); in count 3 of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and in count 4 of driving with a suspended license (Veh. Code, § 14601.1). Appellant admitted that he had sustained a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms (Health & Saf. Code, §§11370.2, subd. (c), Pen. Code, § 667.5, subd. (b)).
On December 21, 2011, the court denied appellant’s request to strike the prior strike conviction (Pen. Code, § 1385), further denied probation, and imposed a state prison sentence of 21 years. The court imposed the doubled middle term of six years on count 2, a consecutive term of 15 years on the prior prison terms, a stayed sentence on count 3 (Pen. Code, § 654), and a term of 365 days in county jail on count 4. The court imposed a $5,400 restitution fine (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (Pen. Code, § 1202.45), and awarded 427 days of custody credits.
Appellant filed a timely notice of appeal.

On October 20, 2011, a Fresno County jury found appellant Geladin Fronda Ignacio guilty of two counts of performing a lewd act upon a child under age 14 (Pen. Code,[1] § 288, subd. (a)). On November 22, 2011, the court denied appellant probation and sentenced him to a total term of eight years in state prison. The court imposed the middle term of six years on the first count and a consecutive term of two years (one-third of the middle term) on the second count. The court imposed various fines, fees, and penalties, including a $40 court security fee (§ 1465.8), and awarded 294 days of custody credits. On the same date, appellant filed a timely notice of appeal. We will modify the monetary amount of the court security fee and affirm in all other respects.

Defendant and appellant J.R. (minor), a ward of the juvenile court (Welf. & Inst. Code, § 602)[1], appeals following a disposition order removing him from parental custody and placing him in the custody of the probation department, detained in juvenile hall, awaiting placement in an appropriate facility. Following a contested section 777 hearing, the juvenile court found that minor had violated two conditions of his probation—that he not associate with other gang members, and that he not associate with his cohort in a previous burglary, Eli I. Minor now contends that the court erred in admitting certain photographs into evidence. We find no error and affirm.

Appointed counsel for defendant Danny De Derryberry asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
I

On March 8, 2012, the Sacramento County Superior Court issued a status-only judgment dissolving the marriage of Tate Guice III and Antonia Guice. Tate appeals from that judgment. However, Tate raises no claim regarding the status-only judgment. His only claims on appeal relate to orders issued by the Stanislaus County Superior Court in November 2010. Specifically, Tate argues the court erred in: (1) allowing Antonia to relocate to Texas with the parties’ son; (2) precluding Tate from cross-examining the mediator in this matter; (3) placing the parties’ children in separate homes; and (4) refusing to transfer venue to Sacramento County. We affirm the judgment because Tate’s claims are not properly before this court.

Convicted of first degree murder, defendant Bryan Cordell Johnson argues on appeal that the trial court erred in admitting evidence of prior sexual assaults he committed and in instructing the jury that the People did not have to prove motive. We disagree and affirm.

Defendant Kimi Kollette Matsuno pleaded guilty to charges of embezzlement and burglary. She was awarded probation, ordered to pay various fines and fees, and ordered to pay $28,600 in restitution to her victim. Defendant appeals, claiming the restitution order was an abuse of the trial court’s discretion, and the court erred in calculating the amount of restitution.
We do not agree the restitution order was an abuse of the trial court’s discretion; we do, however, agree the court’s calculations are not supported by the record on appeal. Accordingly, we will remand the matter for the limited purpose of directing the trial court to explain the basis for its calculations on the record and make all necessary corrections to the restitution order, if any.

A jury found defendant Alejandro Madrid guilty of second degree robbery (Pen. Code, § 211)[1] and receiving a stolen motor vehicle, to wit the getaway car used in the robbery (§ 496d, subd. (a)). In a bifurcated proceeding, the trial court found true allegations defendant had two prior serious or violent felony convictions. (§§ 1170.12, subd. (b), 667, subds. (a) and (d).) The trial court sentenced defendant to 25 years to life for the robbery and a concurrent 25 years to life for receiving a stolen motor vehicle, stayed pursuant to section 654.
Defendant’s sole contention on appeal is that his conviction for receiving a stolen motor vehicle must be reversed because there is insufficient evidence he knew the car, in which he was merely a passenger, was stolen, or that he had possession of it. We agree and shall reverse the judgment as to that offense.