CA Unpub Decisions

A jury found defendant Michael Eugene Jastraub guilty of second degree murder and additional counts related to driving under the influence and unlawful possession of illegal substances. The trial court found a prior strike allegation true.
On appeal, defendant contends the court abused its discretion by admitting evidence of his uncharged misconduct. He also contends, and the People concede, that the trial court miscalculated the number of presentence custody credits due him. We will accept the People's concession regarding the custody credits and, in all other respects, affirm the judgment.

Plaintiffs challenge the trial court's denial of their petition to set aside a testamentary trust amendment as procured by defendant's undue influence. We conclude substantial evidence supports the trial court's finding of no undue influence, and we affirm the judgment.

Rogelio Manzo Maldonado appeals from an order denying his nonstatutory motion to vacate his guilty plea to possession of cocaine. (Health & Saf. Code, § 11350, subd. (a).) Appellant, who is not a citizen, contends that trial counsel was ineffective for failing to (1) advise him of the adverse immigration consequences of his plea, and (2) "attempt to secure a disposition that would avoid or minimize the possibility of deportation." We affirm.

Norman G. Richmond appeals his conviction by jury for misdemeanor possession of more than 28.5 grams of marijuana (count 1; Health & Saf. Code, § 11357, subd. (c))[1] and felony possession for sale (count 2; § 11359). Appellant was sentenced to two years state prison for possession for sale plus two years on prior prison enhancements which were admitted (Pen. Code, § 667.5, subd. (b)). The trial court stayed the sentence on count 1 for simple possession. (Pen. Code, § 654).
We reverse the conviction on count 1 for simple possession because it is necessarily included in the greater offense of possessing marijuana for sale. (People v. Muran (1970) 1 Cal.3d 755, 763; People v. Oldham (2000) 81 Cal.App.4th 1, 16; People v. Magana (1990) 218 Cal.App.3d 951, 954.

Marcos Mata appeals from the judgment entered on remand for resentencing. His appointed counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) On October 20, 2011, we directed appointed counsel to send the record and a copy of her brief to appellant and notified him of his right to respond within 30 days. We received no response.
In People v. Mata (Jan. 31, 2011, No. B220804 [nonpub. opn.], Mata I), we summarized the facts and procedural history that led to the original appeal: â€

This consolidated appeal, from judgments arising from two separate petitions, involves an irrevocable life insurance trust that utilized a lawful tax-avoidance device known as Crummey powers, named after Crummey v. C. I. R. (9th Cir. 1968) 397 F.2d 82. In the first petition, Russel S. Leventhal (Leventhal), the original trustee of the Frank Montelione, Jr. Irrevocable Trust dated May 17, 1996 (the Trust), challenged the authority of the then-current trustee -- Gaetano Montelione (Gaetano)[1] -- to act as trustee and asked the trial court to declare that Leventhal is the lawful trustee of the Trust. The court found that Leventhal, who had resigned as trustee almost eight years before he filed the petition, lacked standing to bring the petition. The second petition was brought by Gianfranco Montelione (Gianfranco), through his guardian ad litem Marisol R. Colon, seeking (among other things) an order finding him a beneficiary of the Trust. The court found that Gianfranco was a lifetime (or Crummey) beneficiary of the Trust, but his status as a lifetime beneficiary did not entitle him to any share of the trust assets upon the death of the settlor. We affirm both judgments.

In this appeal, we conclude that the trial court erred by imposing a consecutive one-year enhancement for a prior prison term commitment pursuant to Penal Code section 667.5, subdivision (b), in addition to a five-year enhancement for a serious prior felony conviction pursuant to Penal Code section 667, subdivision (a)(1), both based on the same prior conviction.[1] We therefore strike the one-year prior prison term enhancement, and otherwise affirm the judgment.

The juvenile court held a hearing pursuant to section 366.26 of the Welfare and Institutions Code,[1] and terminated parental rights as to Arianna F. and D.F. after finding there was clear and convincing evidence that the two girls would be adopted. The parents of D.F. and Arianna, Fernando F. (father) and Michelle F. (mother), appeal and claim that each of them presented sufficient evidence of the parent-child exception to adoption under section 366.26, subdivision (c)(1)(B)(i). They also argue that there was insufficient evidence to establish that the caregiver, an older sister, had made the necessary full emotional commitment to adopt her younger sisters. We affirm the order terminating parental rights.

Unprofessional conduct that is used as a basis for revoking or suspending a professional license must demonstrate an unfitness to practice that profession if the disciplinary action is to comport with due process. Business and Professions Code section 2762, in subdivisions (b) and (c),[1] provides that a licensed nurse engages in unprofessional conduct when he or she uses alcoholic beverages â€

In October 2010, the Solano County Department of Health and Social Services (Department) filed a Welfare and Institutions Code section 300[1] petition alleging M. C-S. (mother) and Kevin S. failed to protect M.S. (the minor) and that mother had failed to reunify with some of the minor's half siblings. (§ 300, subds. (b), (j).) The juvenile court detained the minor. Shortly thereafter, Kevin S. submitted a voluntary declaration of paternity (VDP) (form JV-505). The court declared Kevin S. (Kevin) the minor's presumed father and ordered him to undergo paternity testing. Later, the court declared the minor a dependent of the court. (§ 300, subds. (b), (j).)
Paternity test results excluded Kevin as the biological father, prompting the minor and the Department to file an application to set aside the VDP. The Department joined the application. The court denied the application. At the dispositional hearing, the court bypassed reunification services for mother pursuant to section 361.5, subdivision (b)(10), ordered the minor detained out of mother and Kevin's custody, and provided Kevin with reunification services.
The minor, mother, and Kevin appeal. The minor contends the court erred by denying the application to set aside the VDP.[2] Mother argues substantial evidence does not support the court's jurisdictional findings and claims the court erred by denying her reunification services. Kevin contends substantial evidence does not support the court's order placing the minor in foster care.
We affirm.

In this subrogation action between an insurer and a home builder over alleged construction defects, the parties dispute the scope of their agreement to arbitrate the claims and the scope of the arbitrator's authority. The homebuilder, Bhupinder Dhaliwal, unsuccessfully challenged the arbitrator's authority to consider certain claims during the arbitration proceeding, and subsequently filed a petition in the superior court seeking to vacate or correct the arbitration award of both damages and costs against him. The insurer, Homesite Insurance, Inc. (Homesite), petitioned for confirmation. The trial court confirmed the award. We affirm that decision.

William Francis Dougherty sued Sears Roebuck and Co. (Sears) for age discrimination after Sears terminated his employment. The matter proceeded to a jury trial and the trial court granted Sears's motion for a nonsuit on the issue of punitive damages. After hearing all of the evidence and arguments, the jury found Sears liable for age discrimination against Dougherty but, subsequently, the trial court granted Sears's motion for judgment notwithstanding the verdict (JNOV). Dougherty appeals and argues that the lower court erred when it granted Sears's motions for nonsuit and JNOV. He also challenges various evidentiary rulings made by the superior court.
We conclude that Dougherty presented sufficient evidence to support the jury's verdict and to have the jury consider the question of punitive damages. We therefore reverse the trial court's granting of Sears's motions for a nonsuit and a JNOV. We, however, reject Dougherty's claims of prejudicial evidentiary errors.

A.C., Sr. (Father), and A.B. (Mother) are the parents of A.C., Jr. (the Minor), who was born in September 2010. Father appeals from the juvenile court's jurisdictional order finding the Minor came within the provisions of Welfare and Institutions Code section 300, subdivisions (a) and (b),[1] and from the dispositional order declaring the Minor to be a dependent child of the juvenile court and vesting custody with the Orange County Social Services Agency (SSA). Mother has not appealed.
Substantial evidence supported the juvenile court's jurisdictional and dispositional findings, and the juvenile court did not abuse its discretion by requiring Father to attend a child abuser's treatment program. We therefore affirm the jurisdictional and dispositional orders.

Appellants Sally I. Chaaban, Dana Miller, Lorena Ochoa, and Summer Myers appeal from an order denying their motion to certify a class in an action against their former employer, Wet Seal, for Labor Code violations.[1] They alleged Wet Seal had failed to pay them and members of their class according to the mandates of the Labor Code and the wage orders applicable to their industry. In addition, appellants appeal from a simultaneous order denying their motion to file a second amended complaint.
We affirm the order denying the motion for class certification. The trial court concluded, and we agree, that appellants did not meet their burden to show a class action to be superior to individual lawsuits as a means of resolving the controversy. We also affirm the order denying the motion to file an amended complaint.