CA Unpub Decisions

Jerome Burns (appellant) appeals from a jury conviction of unlawful sexual intercourse by a person age 21 or older with a minor under age 16 (Pen. Code, § 261.5, subd. (d))[1] (count 1); forcible rape (§ 261, subd. (a)(2)) (count 2); oral copulation of a person under age 16 (§ 288a, subd. (b)(2)) (counts 4 & 5); using a minor for sex acts (§ 311.4, subd. (a)) (count 6); procuring a child to engage in a lewd act (§ 266j) (counts 7 & 8); pandering by procuring (§ 266i, subd. (a)(1)) (count 10); and pimping (§ 266h, subd. (a)) (count 11).[2] The court found true a prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). It also found appellant was in violation of his probation in an unrelated case and revoked probation. Appellant was sentenced to 32 years four months in state prison.
On appeal, appellant contends his defense attorneys were ineffective, the court failed to advise him of his right to discharge his retained counsel, the court erred in instructing the jury with CALCRIM No. 318, the court’s prior serious felony conviction finding is unsupported by substantial evidence, the court failed to exercise informed discretion in setting the amount of his restitution fund fines, and the court erred in imposing a full, consecutive sentence for his violation of probation. We conclude the imposition of a full, consecutive sentence on the probation violation was erroneous and remand the matter for resentencing.

Plaintiff Rick Johnson, Jr., appeals from a judgment in favor of his former employer, Pacific International Bearing, Inc. (Pacific), and its president, Kevin M. Sweeney,[1] entered after a jury trial on Johnson’s disability discrimination claims against them under the Fair Employment and Housing Act (FEHA) (Gov. Code,[2] § 12900 et seq.).
Johnson contends the trial court prejudicially erred by (1) denying his motions for a directed verdict, judgment notwithstanding the verdict (JNOV), and new trial; (2) allowing Pacific to contest liability based on its asserted lack of knowledge of Johnson’s medical condition; (3) ruling improperly on Pacific’s use of after-acquired evidence; (4) dismissing three of his causes of action after the close of evidence; and (5) improperly awarding costs against him. We find no error, and affirm the judgment.

Defendant Daren Lewis Wright entered into a plea agreement under which he pleaded no contest to numerous counts in two separate cases in exchange for a specified prison term of 15 years. On appeal, his only contentions are that he was entitled to additional conduct credit and that the abstract of judgment must be corrected. The Attorney General concedes that the abstract requires correction. We reject defendant’s claim for additional conduct credit.

Appellants Vinh and Teri Nguyen seek review of a judgment entered upon the successful summary judgment motion of plaintiff First Century Plaza, LLC (First Century) in its action for breach of appellants' guaranties. On appeal, they contend that First Century failed to meet its burden to demonstrate that it had met its own obligations before foreclosing on the underlying loan of their LLC. They further contend that triable issues of fact existed as to whether the LLC was in default, whether they were in fact the true obligors on the debt, whether First Century inflated its damages, and whether the foreclosure sale was conducted properly. We agree with the superior court, however, that appellants presented no triable issues that precluded summary judgment on First Century's cause of action for breach of guaranty. We will therefore affirm the judgment.

Appellants Ross Creek Neighbors, Committee for Green Foothills, and Douglas V. Ownbey challenged the certification of an environmental impact report (EIR) and approval of a project to construct seven homes. The issues in the present appeal are whether respondents[1] Town of Los Gatos and its Town Council (Town) were required to circulate an “Addendum-Amendment” (Amendment) to the final EIR and whether the final EIR fails as an informational document.[2] We affirm the order.

Appellant Scott L., Sr. (Scott) appeals from a judgment terminating his parental rights over his 12-year-old son Scott L. (Scottie). The judgment frees Scottie to be adopted by respondents William S. and Lynn B., but Scott contends there is insufficient evidence to support the trial court’s finding that such adoption would be in Scottie’s best interest. We disagree and affirm the judgment.

A jury convicted defendant Martin Perez, Jr., of attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a); count 1),[1] assault with a deadly weapon (§ 245, subd. (a)(1); count 2), assault likely to cause great bodily injury (§ 245, subd. (a)(1); count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4). The jury found that defendant committed the first three counts for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), but did not commit attempted murder with premeditation and deliberation. The court sentenced defendant to a total prison term of 21 years on count 1, including 10 years for the associated gang enhancement.[2]
On appeal, defendant contends the court abused its discretion by declining to strike the gang enhancement to count 1. He also asserts he is entitled to three additional days of custody credit. We agree defendant is entitled to additional custody credit. In all other respects, we affirm the judgment.

Defendant was hired in 2006 to care for a 17-year-old boy with autism. The boy’s mother caught defendant in bed with her son, under the comforter. She told defendant to leave. The boy later told a classmate defendant “tickle[d]” and “touche[d] his groin area.” The classmate told the principal, and the school contacted the police. Working with the police, the boy’s mother called defendant. Defendant admitted touching the boy’s penis twice.
A jury convicted defendant of two counts of committing a lewd act upon a dependent person by a caretaker. (Pen. Code, § 288, subd. (c)(2).)[1] The court sentenced defendant to two years in state prison.

A jury convicted defendant and appellant Christopher Daniel Castaneda of second degree murder. (Pen. Code, § 187.)[1] The jury also found true certain enhancement allegations based upon defendant’s personal use and discharge of a firearm in committing the murder. (§ 12022.53, subds. (b), (c), (d).) He was sentenced to a term of 40 years to life in prison.
Defendant makes the following contentions on appeal: (1) there is no substantial evidence of malice aforethought, an element of murder; (2) there is no substantial evidence of the corpus delicti of murder independent of defendant’s out-of-court statements; (3) the court’s corpus delicti instruction erroneously permitted the jury to convict defendant of murder if the jury found there was independent evidence of involuntary manslaughter; (4) the court erred in failing to instruct the jury sua sponte on the lesser included offense of voluntary manslaughter; and (5) there is no substantial evidence that defendant intentionally discharged the gun, a requirement of two firearm enhancements. We reject these arguments and affirm the judgment.

Hope H. appeals the judgment terminating her parental rights to her daughter, T.G. Hope contends that the juvenile court abused its discretion in denying her Welfare and Institutions Code section 388[1] petition, in which she requested that T.G. be placed with her. Hope also contends that the court erred in declining to apply the beneficial relationship exception to termination of her parental rights (§ 366.26, subd. (c)(1)(B)(i)). We affirm the judgment.

On May 20, 2009, Mirmassoud Kashani entered an Apple Store with the intent to steal two software items valued at $398. On October 27, he entered a negotiated guilty plea to second degree burglary (Pen. Code, § 459) in case No. SCD215859. On October 20, 2010, the court sentenced Kashani to the 16-month lower prison term, to be served concurrently with a four-year stipulated sentence in case No. SCN236630.[1] Kashani appeals, contending that the record fails to reflect the appropriate time waivers, and thus case No. SCD215859 must be dismissed because he was denied his right to a speedy sentencing hearing. We affirm.

After the magistrate denied his motion to suppress evidence (Pen. Code,[1] § 1538.5), defendant Jason Clark Powers pled no contest to attempting to obstruct, resist, or deter an executive officer in the performance of his duty and admitted a prior serious or violent felony conviction in return for a stipulated state prison term of 16 months, the dismissal of all remaining counts and allegations -- including a charge of being a felon in possession of ammunition -- and the dismissal of an unrelated pending case.[2] The court thereafter imposed the stipulated sentence, awarding defendant 55 days of presentence custody credit (37 actual days and 18 conduct days).
In response to a motion pursuant to People v. Fares (1993) 16 Cal.App.4th 954, the trial court granted defendant two additional actual days of presentence custody credit, but denied his request for day-for-day conduct credit.
Defendant contends his motion to suppress should have been granted because the officer lacked probable cause to arrest him for any crime. He also renews his contention that he is entitled to day-for-day presentence custody credit. We shall affirm.

Appellant Craig Kaiser Garrett appeals from a judgment entered after a jury found him guilty of first degree residential burglary (Pen. Code, § 459, count 1),[1] resisting a peace officer (§ 148, count 2), and attempted first degree residential burglary (§ 664/459, count 3). In bifurcated proceedings, the jury found true the allegations that appellant had suffered three prior convictions, two of which qualified as serious felonies (§ 667, subd. (a)(1)) and as strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), the “Three Strikes” law), and two alleged prior prison terms (§ 667.5, subdivision (b)).

An information, dated June 8, 2010, charged Sonny Rocky Harris with two counts of second degree robbery (Pen. Code, § 211[1]) and one count of second degree commercial burglary (§ 459). As relevant, the information specially alleged that Harris had two prior serious or violent felony convictions for robbery that qualified as strikes under the “Three Strikes” law and that one of them subjected him to a five-year enhancement under section 667, subdivision (a)(1).
On November 9, Harris’s privately retained counsel filed a motion to withdraw as attorney of record on the ground that Harris and his family had agreed to pay attorney fees through trial but did not pay the agreed-upon fees and that the “failure to pay the entire attorney[] fees has caused a conflict between” counsel and Harris. According to counsel, “On or about 02-22-2010 I was hired by [Harris] and his family to represent [Harris] through trial for an agreed[-]upon amount. On 10-15-2010, I was told by [Harris] and [his] family that they would not be able to pay me my attorney[] fees. Hence a conflict has arisen between me and [Harris].” A week later, on November 16, the trial court denied the motion, although it appointed an investigator at the court’s expense.