CA Unpub Decisions

A jury convicted appellant Jose Casillas Malanche of rape (Pen. Code,[1] § 261, subd. (a)(2); count 1), sodomy (§ 286, subd. (c)(2); count 2), and sexual penetration (§ 289, subd. (a)(1); count 3). The jury also found that appellant personally inflicted great bodily injury on the victim in the commission of each offense. (§ 12022.8, former § 667.61,[2] subd. (b).)
Appellant contends that the trial court erred when it allowed a nurse to testify as to what the victim told her during an examination, because the victim’s statements were translated from Hmong by an unidentified interpreter. Appellant also contends that the trial court failed to instruct the jury on battery as a lesser included offense of sexual penetration and gave the jury a one-sided instruction regarding the use of appellant’s out-of-court statements. Finally, appellant claims that the trial court imposed an unauthorized sentence. Respondent also finds fault with the sentence, but for a different reason.
We agree with respondent that the sentence was unauthorized and remand for resentencing. In all other respects, we affirm the judgment.

Reed Smith, Margaret M. Grignon, Robert D. Phillips, Jr., and Brandon W. Corbridge for Defendant and Respondent.
Ingrid Olson, successor in interest under Code of Civil Procedure section 377.31 to Ernst Hammermueller, plaintiff and appellant (hereafter Olson), appeals from the trial court’s postjudgment cost award to defendant and respondent, North American Company for Life and Health Insurance (hereafter NAC). Olson contends first that she only became successor in interest for the limited purpose of NAC’s appeal from a judgment entered in favor of Ernst Hammermueller who died while the appeal was pending, and therefore she is not liable for NAC’s litigation costs. Second, Olson contends that even if she became a party to the trial court proceedings, as Hammermueller’s successor in interest she is not liable for costs under Code of Civil Procedure section 998.[1] Finally, she contends if she is liable for costs under section 998, the trial court failed to rule on the objections she raised in her motion to tax NAC’s claimed expert witness fees and therefore those costs must be stricken.
We agree with Olson’s second claim. Therefore, we will reverse the trial court’s order awarding costs to NAC under section 998.

Sean Charles Thornton entered a negotiated guilty plea to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a))[1] and admitted the appended enhancement of inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). He also pleaded guilty to felony false imprisonment (§§ 236, 237) and admitted a prior strike conviction allegation. The court sentenced him to the agreed prison term of eight years four months. Thornton appeals. We affirm the judgment.

Appellant Moises R., age 17, admitted, and the juvenile court found true, seven counts of violating Penal Code section 594, subdivisions (a), (b)(2)(A). The court dismissed the remaining charges with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The court (Judge Carolyn Caietti) declared appellant a ward of the court; ordered appellant's care, custody and control to be under the supervision of probation; placed appellant with his mother; imposed various terms and condition of probation; and ordered appellant to pay restitution to the City of San Marcos. At a subsequent restitution hearing, the court (Retired Judge Lawrence Kapiloff) ordered restitution in the amount of $9,678.56.

Mario Gonzalez entered into a plea agreement, under the terms of which he pled guilty to three offenses with firearm enhancements and stipulated to a 15-year prison sentence. Nine remaining counts were dismissed. Gonzalez filed a timely notice of appeal and requested a certificate of probable cause, which was denied by the court.
Pursuant to his plea agreement, Gonzalez pled guilty to count 1, kidnapping (Pen. Code,[1] § 207, subd. (a)) and admitted the firearm enhancement under section 12022.53, subdivision (b); count 8, assault with a firearm (§ 245, subd. (a)(2)) and count 10, kidnapping (§ 207, subd. (a)). Gonzalez was sentenced to the stipulated 15-year term.
After entering his guilty pleas Gonzalez requested and was granted the right to represent himself. Six weeks later, Gonzalez requested that counsel be re-appointed and the court granted his request. Gonzalez later brought a motion to withdraw his guilty plea, which motion was denied.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable issues. We offered Gonzalez the opportunity to file his own brief on appeal but he has not responded.

A jury convicted Cliff McLaughlar of robbery (count 1; Pen. Code, § 211)[1] and assault by means of force likely to cause great bodily injury (count 2; then § 245, subd. (a)[(4)].). The jury found true the allegation appended to count 2 that he personally inflicted great bodily injury on the victim (§§ 1192.7, subd. (c)(8) & 12022.7, subd. (a)). Following the verdict, McLaughlar admitted he had served a prior prison term within the meaning of section 667.5, subdivision (b). The court sentenced him to prison for four years for count 2, three years for the great bodily injury enhancement, one year for count 1, and one year for his prison prior, for a full term of nine years.
On appeal, McLaughlar contends the court should have stayed execution of his one-year sentence for the robbery conviction under section 654. We affirm the judgment.

Ruben Elizalde, a math teacher with the Sweetwater Union High School District (the District), appealed his notice of termination to the Commission on Professional Competence (the Commission). The Commission determined that there was insufficient evidence to establish Elizalde was unfit to teach under Education Code section 44932, subdivision (a)(5). (Undesignated statutory references are to the Education Code.) The District then filed a petition for writ of mandate with the Superior Court of San Diego County seeking to set aside the Commission's decision. The court denied the petition. The District appeals, arguing there is insufficient evidence to support the trial court's findings. We affirm.

Charles Braggs pleaded guilty to robbery, five prison prior convictions, two serious felony prior convictions and three strike prior convictions. The trial court denied Braggs's motion to dismiss at least one of the strike prior convictions, but struck three of the prison priors. Braggs received a prison term of 25 years to life on the robbery, with an additional ten years for the two serious felony prior convictions. Braggs's sole contention on appeal is that the court abused its discretion in failing to strike a prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.

A jury convicted Jose Carlos Villanueva of assault with a deadly weapon and by means of force likely to cause great bodily injury, and two counts of felony child endangerment. The jury also found true that Villanueva personally used a deadly weapon (a voltage meter) in the commission of the assault. He appeals, contending: (1) the evidence was insufficient to establish felony child endangerment; (2) the trial court abused its discretion by denying his request to reduce the child endangerment convictions to misdemeanors; and (3) the prosecutor committed prejudicial misconduct. We reject Villanueva's contentions and affirm the judgment.

On appeal, the de facto parents contend there was insufficient evidence that (1) mother had made reasonable efforts to overcome her drug abuse and mental health problems, (2) she had not resisted drug treatment, and (3) reunification services were in minor’s best interest.
We conclude that the de facto parents’ contentions lack merit. We will affirm the judgment.

Defendant Ervin Grant Branson, Jr., entered a negotiated no contest plea to furnishing marijuana to a 14-year-old girl (Health & Saf. Code, § 11361, subd. (b)) and misdemeanor molesting or annoying the same girl (Pen. Code, § 647.6, subd. (a)(1)). He also admitted a prior strike, arising from a 1989 robbery conviction.
Defendant now appeals, claiming the trial court abused its discretion by denying his Romero motion to dismiss his prior serious felony conviction allegation.[1] We disagree and shall affirm the judgment.

Although not characterized as such, this is an in rem reverse validation action by plaintiffs Fair Oaks and Sylvan Cemetery Districts (Fair Oaks and Sylvan, respectively) challenging the validity of the 1981 annexations of additional territory to the districts. The plaintiffs seek a share of the property tax revenue received by the defendant County of Sacramento (County) from the annexed territories, which they claim should have been apportioned to them for services rendered to residents in the territories from 1981 to date.
The action comes 30 years too late. The applicable statute of limitations for the filing of the validation actions was 60 days from the date of execution of the certificates of completion of the annexations. (Gov. Code, § 56103, Code Civ. Proc., § 863.) That occurred on March 18, 1981, when the Local Agency Formation Commission (LAFCO) recorded certificates of completion of the annexations for the two cemetery districts.
The trial court sustained the defendants’ demurrers without leave to amend. The trial court agreed with defendants that the complaint was barred by the statute of limitations and the plaintiffs appeal. Plaintiffs’ primary argument on appeal is that the time for bringing a validation or reverse validation action never commenced because the annexation of territory was invalid. They claim that the validation actions were invalid because of the failure of the parties to enter into tax-sharing agreements.[1] We disagree.

Following a bench trial of Marlo L. McKelvy’s application to obtain physical custody of her six-year-old daughter from the girl’s father, Somari Thunder, the court found the child “is doing well in the primary care of her Father” and declined to modify a 2008 order to grant physical custody to McKelvy.
In this pro se judgment roll appeal, McKelvy contends, among other things, that the trial court failed to consider “pertinent information,” based its decision on “erroneous information” provided by mediators, and committed reversible error in refusing to “return” her daughter. We find no error and shall affirm the order.

Defendant Gregory Bontemps appeals from his convictions for spousal abuse (Pen. Code, § 273.5, subd. (a); statutory citations that follow are to the Penal Code unless otherwise specified), making criminal threats (§ 422), and intimidating a witness (§ 136.1, subd. (b)(1)). He contends the trial court erred in admitting evidence of his criminal history, counsel was ineffective for failing to object to that evidence, and the trial court abused its discretion in denying his request that the court disregard for purposes of sentencing one or both of his prior serious or violent felony convictions. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) We affirm the judgment.