CA Unpub Decisions

Esmeralda C. appeals the findings and orders entered at the jurisdiction and disposition hearing held under Welfare and Institutions Code[1] sections 300, subdivisions (b) and (g); and section 361, subdivision (c). Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error. In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny her requests to review the record for error and to address her Anders issues. (Anders v. California (1967) 386 U.S. 738.) Esmeralda's counsel also requests leave for her to file a supplemental brief in propria persona. The request is denied.

A jury convicted defendant Edward James Luna of 13 sexual offenses: three counts of committing a lewd act ( 288) against his niece in July and August 2003 and 10 counts of rape ( 261) against his stepdaughter between January 2001 and August 2003. The court sentenced defendant to a total term of 166 years to life: the upper term of eight years on count 1; a consecutive midterm of six years on count 2; a consecutive term of two years on count 3; and 10 consecutive indeterminate sentences of 15 years to life on counts 4 through 13. On appeal, defendant argues the court should have given a unanimity instruction on counts 5 through 13 involving rape. He also challenges the upper-term sentence on count 1. The parties agree defendant is entitled to 699 days of custody credit rather than 697 days. Subject to modification of the custody credits, Court reject defendants contentions on appeal and affirm the judgment.

On October 12, 2004, defendant was charged in a felony complaint with two counts of robbery (Pen. Code, 211, counts 1 & 2)[1]and felon in possession of a handgun ( 12021, subd. (a)(1), count 3). As to counts 1 and 2, it was alleged defendant personally used a firearm to commit the offenses. ( 12022.53, subd. (b), 1192.7, subd. (c)(8).) It was further alleged defendant served three prior prison terms ( 667.5, subd. (b)), and had a prior serious felony ( 667, subd. (a)), which also qualified as a strike offense ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
The two victims in this case, Robert Messer (Messer) and Jonathan Wright (Wright), both testified at trial, and their accounts of the robbery were similar. They said they were selling stereo equipment on a consignment basis from a van owned by their employer. They would use the van to pick up stereo equipment from a warehouse in the morning, drive to a busy parking lot of a retail shopping center, and ask people if they would be interested in buying the equipment. On the afternoon of March 5, 2004, around 1:00 p.m., Messer and Wright were attempting to sell equipment in the parking lot of a Best Buy store. They both identified defendant as one of a group of three Black men who arrived in the parking lot in a Cadillac truck. According to Messer, two of the men in this group went inside the store, and defendant stayed outside to talk about the stereo equipment. Messer sat in the van while Wright was showing the equipment and trying to do the deal.

Defendant and appellant Miguel Delacruz Valdivia was convicted by a jury of three counts of robbery (Pen. Code, 211) and one count of receiving a stolen vehicle (Pen. Code, 496d). He was sentenced to a total term of five years. He contends that
(1) a Marsden hearing was inadequate and thus he was denied his right to counsel, and (2) the amount of restitution is not supported by substantial evidence. We affirm, modify to correct court security fees, and direct the trial court to conduct a restitution hearing.

Between June 12 and 14, 2001, defendant Prolink, Inc. (Prolink) installed new global positioning system (GPS) units in golf carts belonging to plaintiff Marriott International, Inc. (Marriott). The units were powered by the golf carts batteries. On June 15, 2001, the carts, along with the cart barn in which they were parked and recharged overnight, were totally destroyed in a fire. According to Prolinks expert witness, the cause of the fire could not be determined. According to Marriotts expert witnesses, on the other hand, the fire was electrical in origin; it was caused by wiring with nicked or otherwise compromised insulation; it started roughly where a golf cart known to have a malfunctioning GPS unit had been parked; it most likely started in the battery compartment of a golf cart; and it did not start in any of the other wiring or equipment in the cart barn. None of Marriotts experts, however, took the further step of opining that it was more likely than not that Prolink caused the fire. In this action, a jury found that Prolink negligently caused the fire and awarded over $900,000 in damages. Prolink appeals, arguing that there was insufficient evidence that it actually caused the fire. Court disagree. Court will hold that, from the evidence, and particularly from the testimony of the expert witnesses, lay jurors could reasonably infer that a Prolink installer did, in fact, cause the fire. Hence, Court affirm.

Plaintiff Kathleen B., presently 62 years of age, appeals from a grant of summary judgment in favor of defendant William Shubeck on plaintiffs complaint, seeking to hold defendant liable for damages she suffered as a result of childhood sexual abuse. The complaint was filed under the provisions of Code of Civil Procedure section 340.1, subdivision (a)(1), which allows the filing of an action for childhood sexual abuse within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury . . . was caused by the sexual abuse.

Plaintiff Stephanie Blythe was terminated from her civil service employment with the County of Riverside (the County) in May 2001, but an arbitrator determined she had been unlawfully terminated and later ordered her reinstated. Following a series of writ proceedings, the County reinstated Blythe in February 2007. Blythe was unemployed from and after her May 2001 termination and never returned to work for the County. She retired from the County in March 2007, after using accrued vacation time and sick leave. In its statement of decision, the trial court indicated that Blythes lack of even minimal documentation of her job efforts [was] disconcerting, and that, if adequately motivated, Blythe could have found any job in her field. The court did not, however, expressly determine whether Blythe, given the comparable employment opportunities that were available to her, undertook or failed to undertake reasonable efforts to obtain such employment. Accordingly, the judgment must be reversed and the matter remanded to the trial court with directions to determine whether the County met its burden of showing that Blythe failed to undertake reasonable efforts to obtain comparable employment.

Minor A.E. (A.E. or minor) challenges the juvenile courts admission of his extrajudicial confession and its finding that he violated Penal Code sections 288a, subdivision (c)(1), and 288, subdivision (a). Court affirm.

Defendant Samuel Kwame Amankrah was convicted by a jury of kidnap for rape, kidnapping, forcible rape, and forcible oral copulation. Eighteen special allegations, dealing with the use of a deadly weapon and/or movement of the victim so as to increase the risk of harm, were found true. Defendant was sentenced to an aggregate prison term of 90 years to life.
On appeal, defendant contends (1) statements made by the prosecutor during closing argument, that the victims testimony was the only evidence of what happened in the house, constituted reversible Griffin[1]error, and (2) the trial courts failure to instruct on the presumption of innocence and to define reasonable doubt at the end of the trial violated defendants due process rights and trial by jury and, as such, is reversible per se.
Court find the prosecutors statements did constitute Griffin error in that they directed attention to defendants failure to testify; however, under the present facts, it is harmless. Further, we find no reversible error in the trial courts failure to reinstruct the jury on the presumption of innocence and in failing to define reasonable doubt at the end of the trial. After the jury was impaneled, it was instructed on the presumption of innocence and reasonable doubt was defined. In addition, a written copy of the instruction was provided to the jurors for purposes of their deliberation. Court therefore affirm.

Defendant Jack Brown III was charged with seven felonies stemming from two separate incidents of domestic violence, the first occurring on March 18, 2005, and the second on July 28, 2005. A jury found defendant guilty of two of the seven charges, namely, inflicting corporal injury on Trina Brown (Brown) on March 18 in count 6 (Pen. Code, 273.5, subd. (a)), and assault with a deadly weapon, a box cutter, on Browns friend or lover, Mike Alvarez (Alvarez), on July 28 in count 2 (Pen. Code, 245, subd. (a)(1)). The trial court denied defendants motion to reduce his two felony convictions to misdemeanors (Pen. Code, 17, subd. (b)), and sentenced defendant to the middle term of three years for the July 28 assault on Alvarez and a concurrent three-year term for the March 18 spousal battery of Brown. The sentences were suspended, however, pending defendants successful completion of three years formal probation and 180 days in local custody, to be served through the work release program. The trial court further imposed a $200 restitution fine and a $400 suspended probation revocation restitution fine.

A jury convicted defendant, Jamie Randall, of two counts of aggravated sexual assault of a minor by rape (Pen. Code, 269, subd. (a)(1)),[1]aggravated sexual assault of a minor by forcible penetration ( 269, subd. (a)(5)), aggravated sexual assault of a minor by forcible sodomy ( 269, subd. (a)(3)) and aggravated sexual assault of a minor by forcible oral copulation ( 269, subd. (a)(4)). He was sentenced to prison for five consecutive terms of 15 years to life and appeals, claiming evidence was erroneously admitted and he was incorrectly sentenced. Court reject his contentions and affirm.

The trial court issued a postjudgment assignment order (Code of Civ. Proc., 708.510)[1], [2]against the Cahuilla Band of Indians (Cahuilla), in favor of Mary DiCara dba Scott Leasing (Scott). Cahuilla contends the assignment order should be reversed because (1) the superior court did not have jurisdiction to issue the order; (2) the lease agreement, upon which the underlying damage award was based, was void since inception; and (3) federal law and Cahuillas revenue allocation plan preempt the superior courts order. Scott contends that it should be awarded attorneys fees on appeal. Court affirm the judgment and award attorneys fees to Scott.

The People seek extraordinary relief from an order of the superior court dismissing proceedings under the Sexually Violent Predators Act (the Act or the SVPA) (Welf. & Inst. Code, 6600 et seq.) against real party in interest Dewayne Jones. Court stayed the order of dismissal pending our consideration of the matter. Court now conclude that, although we accept the trial courts findings concerning the essential causes for delay in the specific circumstances of this case, the People should be given one more sharply limited chance to bring the matter to trial. Accordingly, the petition for writ of mandate is granted in part with directions.

In yet another in a collection of cases dismissed by the trial court due to unavailability of a courtroom for trial and appealed to this court, the People here appeal the dismissal of the criminal case against defendant, Jose Minjarez. As with those other cases, Court reject the Peoples arguments and affirm the dismissal.