CA Unpub Decisions

Willis R. Brown appeals from the judgment following a nolo contendre plea to possession of cocaine base for sale (Health & Saf. Code, 11351.5) and admission that he suffered a prior strike conviction within the meaning of the Three Strikes law (Pen. Code 667, subds. (b)-(i); 1170.12, subds. (a)-(d)).[1]Pursuant to the negotiated plea, the trial court dismissed three counts for sale/transportation/offering to sell cocaine (Health & Saf. Code, 11352, subd. (a)) and struck nine prior strike convictions ( 1385). Appellant was sentenced to six years state prison and ordered to pay a $200 restitution fine ( 1202.4, subd. (b)), a $200 parole revocation fine ( 1202.45), a $20 court security fee ( 1465.8, subd. (a)(1), a $50 lab fee (Health & Saf. Code, 11372.5), and a $85 penalty assessment ( 1464; Gov. Code, 76000). Court appointed counsel to represent appellant in this appeal. After counsels examination of the record, counsel filed an opening brief in which no issues were raised.

Ana B. Haydar appeals an order of the trial court denying a motion to vacate her 1991 guilty plea to possession of cocaine. (Health & Saf. Code, 11350, subd. (a).) Her guilty plea resulted in a two-year sentence to be served concurrently with the sentence in an unrelated case. On April 4, 2008, Haydar filed a motion to vacate the 1991 plea and resulting judgment, alleging that she did not receive complete advice of the immigration consequences of her guilty plea, and her attorney did not describe or stipulate to a specific document presenting a factual basis for her plea. After written and oral argument on the matter, the trial court denied the motion. The court reasoned that Haydar received adequate warning that immigration consequences, including deportation, denial of re‑entry, or denial of citizenship, could follow from her plea. The court also decided that Haydar did not establish that she would not have entered her guilty plea had she known of the unfavorable immigration consequences. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210.) Finally, the court concluded that Haydar's attorney sufficiently stipulated to a factual basis for the plea although the attorney did not describe the circumstances of the crime or refer to a specific document discussing the crime.
Court appointed counsel to represent Haydar in this appeal. After counsel's examination of the record, she filed an opening brief raising no issues.

Father, K.T., appeals from the juvenile courts dispositional order placing his now four-year-old daughter with mother.[1] Father contends the court should have removed the child from her mothers custody and placed the child with father or with another relative. Respondent, the Los Angeles County Department of Children and Family Services (Department) contends father waived the issue by not objecting in the juvenile court to the courts placement of the minor with mother and, in any case, there was no evidence there was any risk of harm to the child in mothers care. Court affirm.

Father, Tracey C., appeals from orders of the juvenile court denying his petition for modification under Welfare and Institutions Code section 388[1] and terminating parental rights in his daughter, A.C. We hold the court did not abuse its discretion in denying fathers section 388 petition and any failure to comply with ICWA notice requirements would be harmless error because notice to the tribe was subsequently given, the tribe responded that A.C. is not eligible for tribal membership and the juvenile court has since found ICWA does not apply. Court therefore affirm the courts orders.

David Thimmes appeals from the judgment entered following his conviction by a jury of making a criminal threat (Pen. Code, 422)[1]and stalking. ( 646.9, subd. (a).) Appellant admitted allegations of two prior prison terms ( 667.5, subd. (b)) and one prior serious or violent felony conviction within the meaning of the "Three Strikes" law. ( 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) At the time of sentencing, the prosecutor informed the court that only one of the prior prison terms was valid. Appellant was sentenced to prison for eight years, four months. Appellant contends that the evidence is insufficient to support his convictions. Court affirm.

Sandra Will Carradine purchased a house from William and Mary Cowell in June 1999. Her complaint, filed in June 2007, alleges that they breached the real estate purchase contract by failing to disclose that they substantially modified the house and made other improvements on the property without obtaining building permits and that they built a fence that encroaches on property owned by a homeowners' association. After a court trial, judgment was entered in favor of the Cowells. Carradine appeals, contending the trial court erred when it found that her claim was barred by the statute of limitations, when it found that respondents did not breach the contract, when it excluded evidence of their knowledge of undisclosed facts, and when it awarded them attorney's fees of $122,100. We conclude the complaint was time barred and that the fee award is not an abuse of discretion. Accordingly, Court affirm.

James Hunley appeals from an order granting an injunction prohibiting harassment in favor of Theron Brown. (Code Civ. Proc., 527.6.)[1] Hunley contends the order amounted to an abuse of discretion because no evidence supported the finding he posed a credible threat of violence, and the manner in which the trial court conducted the hearing violated his due process rights. Court reject these contentions and affirm the order.

A jury convicted defendant Timothy Leon Foy, Jr., of several forcible sex offenses, and found he kidnapped his victim and moved her to substantially increase her risk of harm. (Pen. Code, 288a, subd. (c)(2) [forcible oral copulation, counts 1-3]; 261, subd. (a)(2) [rape, counts 4-6]; 289, subd. (a)(1) [anal penetration, count 7]; 667.61, subds. (d)(2) & (e)(1).) The trial court sentenced defendant to prison, and he timely filed this appeal. On appeal, defendant contends the trial court improperly limited impeachment evidence, only two counts of oral copulation are supported by the evidence, and the trial court violated his Sixth Amendment rights at sentencing. We agree that only two counts of oral copulation are supported by substantial evidence, but disagree with defendants other contentions of error. Court shall modify the judgment and affirm.

In this action alleging sexual harassment, retaliation, and failure to prevent sexual harassment under the Fair Employment and Housing Act (Gov. Code, 12940 et seq.[1] (FEHA)), plaintiff Carolyn Medrano appeals from the summary judgment entered in favor of her former employer, Grant Joint Union High School District (District), and the principal of Norwood Junior High School, Dr. Michael McCoy. Plaintiff contends triable issues of material fact exist as to each of her causes of action and that McCoy is not immune from liability under section 820.2. Concluding plaintiff suffered neither sexual harassment nor retaliation as a matter of law, Court shall affirm the judgment.

Found guilty by a jury of dependent adult abuse and inflicting corporal injury on a cohabitant, defendant Linda Joyce Wise appeals, arguing the trial court prejudicially erred in excluding two photographs that depicted bruises on her arms. We agree the trial court abused its discretion by excluding the photographs on the ground defendant had no conscious recollection . . . about any bruising that might or might not have occurred the day of the incident, but defendant has failed to persuade us that the error was prejudicial. Accordingly, Court affirm the judgment.

A jury found defendant Jess Ferrin Schilber guilty of receiving stolen property. (Pen. Code, 496, subd. (a); undesignated section references are to this code.) The court found true special allegations that defendant committed the offense while released on bail ( 12022.1) and served two prior prison terms ( 667.5, subd. (b)). The court denied defendants request to reduce the offense to a misdemeanor, denied probation, and sentenced defendant to an aggregate sentence of five years and eight months in state prison. On appeal, defendant contends the courts denial of his motion to reduce the conviction to a misdemeanor was an abuse of discretion. Court affirm the judgment.

On April 3, 2008, Elk Grove police officers executed a traffic stop on the car in which defendant Maria Delosangel Miguel was a passenger. When asked to identify herself, defendant gave the officers her sisters name and claimed that she had no identification. The driver of the car also did not have identification and the other passenger identified himself as defendants son. Because none of the occupants of the car had a valid drivers license, officers told them the car would be towed. The officers then noticed an open purse on the front passenger seat, which appeared to have a drivers license in it. The officers looked at the license, which was fraudulent, and saw several pieces of mail with defendants name on them. The driver claimed the purse was hers and defendants son began to cry, saying he had given the police a false name. The judgment (order of probation) is affirmed.

From October 1, 2004, through February 6, 2005, defendant Brian Harley Miller took checks from D.R. and forged and passed them at various stores without her authorization. In case No. 05F014, defendant entered a negotiated plea of no contest to embezzlement from an elder or dependent adult in an amount exceeding $400 (Pen. Code, 368, subd. (d); undesignated section references are to this code), in exchange for no state prison at the outset and dismissal of the remaining counts ( 368, subd. (e); 487, subd. (b)(3); 504; and five counts, 470, subd. (a)) with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. For purposes of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and to justify an aggravated term of four years in the event he violated probation, defendant admitted that he forged and passed multiple checks, separate victims were involved, and that the amount of money totaled over $1,200. The court suspended imposition of sentence and granted probation for a term of three years subject to certain terms and conditions including 110 days in jail.
Defendant admitted that he failed to contact the probation officer. Probation was revoked and reinstated subject to an additional 30 days in jail.

In Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557, 575 (Schatz I), the California Supreme Court reversed this court and held the mandatory fee arbitration act (MFAA; Bus. & Prof. Code, 6200 et seq.) did not impliedly supersede the California Arbitration Act (CAA; Code Civ. Proc., 1280 et seq.). Under the MFAA, a client has the right to nonbinding arbitration of a fee dispute, and ordinarily has the right to a trial de novo after nonbinding arbitration. (Schatz I, supra, at p. 565.) Under Schatz I, however, a client who elects nonbinding arbitration of a dispute under the MFAA, but who entered into a binding arbitration before the dispute arose, is not entitled to a trial de novo. Rather, if nonbinding arbitration under the MFAA does not resolve the matter, it proceeds to binding arbitration under the parties' contract. (Id. at p. 573-575.)