CA Unpub Decisions

As octogenarians Lawrence and Rosina Arebalo were unloading their car and putting away groceries, defendant Willie Simpson entered their garage and then their house, assaulted both of them, and stole Rosina's purse.[1] A jury convicted defendant of first degree robbery (Pen. Code,[2] § 211) and first degree burglary (§ 459), both with an enhancement for crimes against the elderly (§ 667.9, subd. (a)), and two counts of misdemeanor elder abuse (§ 368, subd. (b)(1)). The trial court found true allegations that defendant had a strike prior (§§ 667, subd. (b)-(i); 1170.12), a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (a)) for attempted robbery in case No. SF097665A.
Sentenced to 19 years in prison, defendant appeals. He contends the trial court erred in admitting his confession, which he claims was coerced, and that his counsel was ineffective in litigating the suppression motion.
We find defendant's confession was voluntary and there was no ineffective assistance of counsel. However, because the trial court improperly imposed enhancements under both section 667, subdivision (a) and section 667.5, subdivision (a) for the same offense, we stay execution of sentence on the lesser enhancement. With that modification, we otherwise affirm.

Plaintiff Emmanuel Rozakis entered into a contract with defendant City of Sacramento (the City) to paint the Old Sacramento parking garage. Rozakis performed extra work not covered by his bid and sought payment from the City. When the City refused to pay him, Rozakis brought suit for breach of contract. After a court trial, judgment was entered in favor of the City. The trial court found Rozakis had not obtained the necessary approval authorizing the extra work.
On appeal, Rozakis contends the trial court erred in interpreting various provisions of the City Code. He contends that both Lori Fox, the project manager for the City, and John Crosswhite (Crosswhite), the consultant hired as construction manager, had authority to approve the extra work. Rozakis further contends the judgment must be reversed because the trial court did not rule on his objections to the statement of decision.
We find the trial court properly interpreted the relevant documents governing authority to approve extra work and its statement of decision was sufficient to resolve the outstanding issues. Accordingly, we shall affirm.

Cynthia V. appeals from an order under Welfare and Institutions Code section 366.26,[1] terminating her parental rights to her son Kenneth and identifying adoption by his foster parents, rather than placement with his grandmother, appellant Isabel V., as his permanent plan.
Mother and Grandmother contend that the court failed to give preferential consideration to placement with Grandmother (§ 361.3). In addition, Mother contends that the juvenile court violated her rights when it denied her request for a contested section 366.26 hearing, and Grandmother contends that the juvenile court deprived her of due process and violated her rights to privacy and association, and erred when it denied her a hearing on her section 388 petition. We affirm.

Celena G. (mother) appeals from the juvenile court's order terminating parental rights to her sons, Samuel S. and Jon T. (Welf. & Inst. Code, § 366.26.)[1] Her sole contention is that the court erred because it failed to ensure compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) before terminating her parental rights. We conclude that any error in the court's findings concerning compliance with the ICWA has been cured, and therefore, affirm.

Josue M., Sr. (father) appeals from the order adjudging his son, Josue M., Jr. (Josue) a person described by Welfare and Institutions Code section 300, subdivisions (b), (d) and (j).[1] Father contends the jurisdictional findings were not supported by substantial evidence. We affirm.

Southern California Gold Products, Inc. (SCGP) purchased liability insurance from Northern Insurance Company of New York (Northern) and Maryland Casualty Company (Maryland), both affiliates of Zurich-American Insurance Group (Zurich).[1] The policies covered, among other things, the defense of suits based on "advertising injury." American Defense Systems, Inc. (ADSI) sued SCGP for misappropriation of trade secrets and confidential information. The complaint alleged SCGP falsely represented on its internet website that it had an affiliation with the United States military and that its armor solution products had been tested and approved by the military. The complaint also alleged that the website contained pictures of ADSI's products which SCGP claimed were its own and that SCGP falsely asserted it had an ongoing affiliation with ADSI.

Derrick S. (father) is the father of Drake S. Father appeals a juvenile court order denying his petition under section 388 of the Welfare and Institution Code.[1] Finding no abuse of discretion, we affirm the court's order.

Appellant Daniel Newman was convicted, following a jury trial, of one count of possession of methamphetamine for sale in violation of Health and Safety Code section 11378. Appellant admitted that he suffered four prior convictions for which he had served prison terms within the meaning of Penal Code section 667.5, subdivision (b), and that one of those convictions was a conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c). The trial court sentenced appellant to a total of eight years in state prison, consisting of the upper term of three years for the conviction, plus two one-year enhancements pursuant to section 667.5 and a three-year enhancement pursuant to Health and Safety Code section 11370.2.
Appellant appeals from the judgment of conviction, contending that the trial court erred prejudicially in failing to instruct the jury on the lesser included offense of simple possession of methamphetamine. He also contends that there is insufficient evidence to support his conviction. We affirm the judgment of conviction.

The trial court issued a three-year restraining order against appellant Daniel Rauch, requiring that he stay away from his brother, respondent Michael Rauch, and respondent's family, and prohibiting other conduct. Appellant challenges the trial court order. We affirm.

Appellant James Marquez was convicted, following a jury trial, of one count of grand theft auto in violation of Penal Code section 487, subdivision (d)(1) and one count of unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a). The trial court found true the allegations that appellant had suffered two prior serious or violent felony convictions within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). Appellant also pled no contest to four misdemeanor counts related to driving under the influence and to the attached enhancements. The trial court sentenced appellant to the upper term of three years for the grand theft conviction, doubled pursuant to the Three Strikes law.[1] The court also imposed a concurrent one-year term for the misdemeanor Vehicle Code section 23152 driving under the influence conviction. Sentence on the unlawful driving conviction and the three other misdemeanor convictions was stayed pursuant to section 654.
Appellant appeals from the judgment of conviction, contending that the conviction for driving or taking a vehicle must be stricken because it is a lesser included offense of grand theft auto. We affirm the judgment of conviction.

Appellant Marcus Parker was convicted, following a jury trial, of one count of assault with a deadly weapon in violation of Penal Code[1] section 245, subdivision (a)(1) and one count of first degree burglary in violation of section 459. The jury found true the allegations that appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court found that appellant had suffered one prior serious felony conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b) through (i) and 1170.12), which was also a serious felony within the meaning of section 667, subdivision (a). The court also found that appellant had served four prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a total of 21 years in state prison, consisting of the high term of six years for the burglary conviction, doubled to 12 years pursuant to the Three Strikes law, plus a five-year enhancement term for the prior conviction pursuant to section 667, subdivision (a), plus a three-year term for great bodily injury pursuant to section 12022.7, plus a one-year enhancement term for one of the prior prison terms.[2] The court stayed sentence on the assault conviction pursuant to section 654.
Appellant appeals from the judgment of conviction, contending that the trial court erred in permitting Detective Bezart to offer opinion testimony and further erred in failing to instruct the jury on the definition of assault and on simple assault as a lesser included offense of aggravated assault. We affirm the judgment of conviction.

Appellant Santos Mejia was convicted, following a jury trial, of one count of possession for sale of a controlled substance, cocaine, in violation of Health and Safety Code section 11351. The jury found true the allegation that the amount of cocaine exceeded 40 kilograms within the meaning of section 11370.4, subdivision (a)(5). The trial court sentenced appellant to three years in state prison for the possession for sale conviction plus a 20 year enhancement term for the weight allegation.
Appellant appeals from the judgment of conviction, contending that the trial court erred in responding to jury questions during deliberations, denying appellant's Pitchess motion, excluding testimony from appellant's daughter and denying his motion to strike the weight enhancement. Appellant also contends that he received ineffective assistance of counsel. We affirm the judgment of conviction.

Plaintiffs and appellants Phairoj Kaewsawang and Eddie Alsheikh appeal from an order denying their motion for class certification in an action against defendants and respondents Sara Lee Fresh, Inc., and Sara Lee Corporation (collectively Sara Lee), arising out of the classification of certain individuals as independent contractors. Plaintiffs contend that common questions of law and fact predominate as to whether the individuals who entered into certain distribution agreements with Sara Lee to transport and supply retail stores with Sara Lee products were independent contractors or employees. We conclude that the trial court did not abuse its discretion by finding that individual questions predominate. Therefore, we affirm.

Defendant and appellant Charlee Espina (defendant) appeals his conviction of insurance fraud and grand theft. Defendant contends that the verdicts were not supported by substantial evidence and there was instructed error. We disagree and affirm the judgment.