CA Unpub Decisions

Defendant, Jose Manuel Vielmas, challenges his conviction on one count of participating in a criminal street gang (Pen. Code, § 186.22)[1] and negotiated sixteen-month prison sentence after he pled guilty and then sought unsuccessfully to withdraw his plea. Specifically, defendant argues: 1) the trial court abused its discretion when it denied defendant's motion to withdraw his guilty plea because it both applied the wrong standard and failed to recognize that his cognitive impairment precluded a knowing and voluntary plea; and 2) the plea lacked the factual basis required by section 1192.5. As discussed below, Court reject these claims and affirm the conviction.

Defendant Pedro Lopez Medel appeals from judgment entered following jury convictions for forcible sodomy of a child under 14 years old and more than 10 years younger than the defendant (Pen. Code, § 269, subd. (a)(3)[2]; count 1); two counts of forcible oral copulation of the vagina and anus of a child under 14 years old and more than seven years younger than the defendant (§ 269, subd. (a)(4); counts 2 and 3); and commission of a lewd act upon a child under 14 years old (§ 288, subd. (a); count 4). The jury further found true, as to each count, the multiple victims allegation (§ 667.61, subd. (e)(5)). Counts 1, 2, and 3 were committed against Jane Doe 1 and count 4 was committed against Jane Doe 2. The trial court sentenced defendant to 60 years to life in prison.
Defendant contends his Sixth Amendment right to confrontation was violated by the trial court allowing a deoxyribonucleic acid (DNA) laboratory supervisor to testify as to the results of DNA testing performed by another person. Defendant also argues that the court erred in imposing consecutive sentences for counts 2 and 3 since the offenses were not committed on separate occasions. In addition, defendant asserts that the court miscalculated his actual credits for time served and failed to award conduct credits under section 2933.1. Defendant's abstract of judgment also misstates his sentence.
Court conclude there was no prejudicial error as to the admission of DNA evidence but agree there was sentencing error, as defendant asserts, requiring reversal of defendant's sentences on counts 2 and 3, resentencing on those counts, recalculation of defendant's presentence credits, and correction of the abstract of judgment.

A jury convicted defendant Stanley Ross Salazar of first degree murder (Pen. Code, § 187, subd. (a))[1] and found true an allegation that appellant had personally used a knife (§ 12022, subd. (b)(1)). Salazar challenges this conviction and the 25-years-to-life prison sentence for first degree murder and an additional determinate term of one year for the knife allegation, contending: 1) the trial court erred when it denied Salazar's motion for a mistrial after a prosecution witness said on the witness stand that when he first met Salazar, Salazar had told him he had just gotten out of jail; and 2) insufficient evidence supports the jury's finding that the murder was willful, deliberate and premeditated. As discussed below, Court affirm the conviction but order a reduction in the court security fee to that authorized by statute.

Defendant Darryl Wayne Burnett, Jr. challenges the upper term sentence of four years imposed by the court for a probation violation. He also seeks an additional 186 days of custody credit under Penal Code section 4019. He contends the court abused its discretion in imposing the upper term. His additional argument about an ex post facto violation has already been decided under California law. The issue involving Penal Code section 4019 is currently under review by the California Supreme Court. Court reject his appeal and affirm the judgment.

Appellant, Seung Cheol Park, challenges the judgment entered in favor of respondent, Jennifer Kim, doing business as Ichiban Sushi #1and Ichiban Sushi #2, on his complaint for various Labor Code violations. According to appellant, substantial evidence does not support the trial court's findings that he was exempt from the applicable wage order as an executive employee and that he was not employed by respondent until the restaurant opened. Appellant further contends the trial court erroneously concluded that bookkeeping, tax and payroll requirements do not apply to exempt employees. Finally, appellant argues the trial court erred when it refused to permit his claim for civil penalties under Labor Code section 2699.
As discussed below, substantial evidence supports the trial court's factual findings. Moreover, the trial court acted within its discretion when it refused to entertain appellant's section 2699 claim. However, the trial court incorrectly concluded that appellant was exempt from the Labor Code's bookkeeping, tax and payroll requirements. Accordingly, the matter will be affirmed in part and reversed in part.

Richard James Siemen appeals the trial court's order upholding the administrative decision of the Department of Motor Vehicles (DMV) to suspend his driver's license for one year. Siemen claims that the DMV form DS 367 (rev. 10/2008), entitled â€

On July 17, 2009, appellant, John Wayne Turner, waived his constitutional rights and pled no contest in case No. VCF224038 to misdemeanor possession of a destructive device (Pen. Code, § 12303.2, count one)[1] and felony domestic violence (§ 273.5, subd. (a), count two). On August 20, 2009, appellant waived his constitutional rights and pled no contest in case No. VCF225504 to one count of felony domestic violence (§ 273.5, subd. (a), count one) and one count of misdemeanor battery (§ 242, count three).
On January 13, 2010, the trial court sentenced appellant in case No. VCF225504 to three years in prison on count one. In case No. VCF224038, the court sentenced appellant to a concurrent prison term of three years for count two. Appellant received custody credits of 508 days. Appellant contends he is entitled to extra custody credits under the recently amended provisions of section 4019. Court disagree and will affirm the judgment.

This tragic case arises out of the death of nine-month-old Nicole Jeong while in the care of her babysitter, Sunyhe Choi, in the late afternoon of August 1, 2005. Choi was subsequently convicted of second degree murder and assault on a child with force likely to produce great bodily injury resulting in death. Choi was sentenced to 25 years to life for the assault charge and 15 years for the second degree murder, albeit the latter sentence was stayed since it arose out of the same facts as the assault charge. (See Pen. Code, § 654.)
There is no question, as we shall soon see, that there was substantial evidence to support the conviction. Dr. Joseph Halka, a contract forensic pathologist who performed the autopsy on Nicole the day after her death, testified that he found six or seven separate points of bleeding on Nicole's head. Those points of bleeding, he opined, represented â€

This tragic case arises out of the death of nine-month-old Nicole Jeong while in the care of her babysitter, Sunyhe Choi, in the late afternoon of August 1, 2005. Choi was subsequently convicted of second degree murder and assault on a child with force likely to produce great bodily injury resulting in death. Choi was sentenced to 25 years to life for the assault charge and 15 years for the second degree murder, albeit the latter sentence was stayed since it arose out of the same facts as the assault charge. (See Pen. Code, § 654.)
There is no question, as we shall soon see, that there was substantial evidence to support the conviction. Dr. Joseph Halka, a contract forensic pathologist who performed the autopsy on Nicole the day after her death, testified that he found six or seven separate points of bleeding on Nicole's head. Those points of bleeding, he opined, represented â€

In Hong v. Searles (Feb. 5, 2009, G040282) [nonpub. opn.] we affirmed an order granting the special motion to strike plaintiff Juan Hong's complaint filed by the defendants in that case, including defendant Regents of the University of California, under Code of Civil Procedure section 425.16 (anti-SLAPP motion; all further statutory references are to this code). We also affirmed the award of attorney fees and costs to defendants. (Hong v. Searles, supra, G040282, p. 2.) After remittitur issued, defendant timely filed a memorandum of costs seeking both attorney fees and costs itemizing all amounts claimed. The court granted without prejudice Hong's motion to tax the attorney fees on the ground defendant should have filed a noticed motion and not a cost memorandum. It stated, â€

On March 24, 2010, defendant John David Ward filed a petition for habeas corpus â€

Trina M. gave birth to her daughter while in prison. The father is unknown, and Trina M. placed the infant in Angela L.'s care pending her release. But no release date became imminent and Angela L. could not secure medical insurance for the child because she was neither a relative nor guardian. She successfully petitioned to be appointed a temporary guardian. Trina M. contested Angela L.'s petition to be appointed a permanent guardian and nominated another. At the hearing on the competing petitions on August 28, 2009, Trina M. was represented by counsel who contested the accuracy of a report from the Monterey County Department of Social Services made under Probate Code section 1513.[1] She also explained that Trina M.'s release date was May 25, 2010. The trial court granted Angela L.'s petition.

In a marital dissolution proceeding, appellant Joy L. Shanklin, in propria persona, filed notices of appeal from a judgment on reserved issues determining, among other things, the date of separation, and terminating all spousal support. She also filed a supplemental notice of appeal from the judgment as to status only. Court affirm.

This appeal arises out of the contentious marital dissolution of Bruce and Andrea McDiarmid.[1] Bruce petitioned for dissolution in March 2006, after a 23-year marriage. In October 2007, the court ordered Bruce to pay Andrea spousal support of $9,000 per month (initial support order). Bruce later moved to modify the initial support order after learning his income would be drastically reduced. In November 2008, the court granted Bruce's motion to modify the initial support order. The final support order, effective January 1, 2009, required Bruce to pay Andrea spousal support of $5,000 per month, plus 20 percent of any income Bruce might receive in excess of $24,583.33 per month. The court entered judgment on March 5, 2009.
Andrea appeals from the initial support order and the judgment. In this consolidated appeal, she contends: (1) the court erred by considering Bruce's obligations to support the parties' children when it calculated the amount of spousal support in the initial support order; (2) the initial support order contravenes Family Code section 4320;[2] and (3) the final support order â€