CA Unpub Decisions

This is an appeal from judgment after the trial court granted a motion for summary judgment filed by defendants Board of Trustees of the California State University (San Francisco State or the University), Jason Katz, Nancy Rabolt, Marcia Allsopp, Don Taylor and Michael Martin (collectively, defendants).[1] Plaintiff Julia Powell Keller-McIntyre, a former employee of the University, sued defendants for harassment, retaliation, and discrimination on the basis of age, gender and disability. Defendants thereafter moved for summary judgment on the ground that no triable issues of material fact existed regarding whether they harassed, retaliated, or discriminated against plaintiff because they had lawful reasons for their employment actions against her. The trial court granted the motion and entered judgment in defendants favor. Court affirm.

Pursuant to a negotiated disposition, Francisco Ayala Corona pled guilty to felony false personation (Pen. Code, 529) and misdemeanor false identification to a peace officer (Pen. Code, 148.9, subd. (a)). Other charges were dismissed. Appellant was sentenced to the midterm of two years in state prison, with 30 days concurrent on the misdemeanor. According to the probation report, Officer Cabral made a traffic stop of a vehicle driven by appellant. Appellant identified himself as Carlos Sanchez using a Mexican ID card. Officer Cabral remembered appellant as Pedro from a previous arrest. Fingerprints confirmed that Sanchez was actually Francisco Ayala Corona. Corona continued to identify himself as Sanchez until his fingerprints were taken. He admitted using a false name and date of birth to avoid deportation to Mexico.

A modification decision.

Plaintiff and appellant Stephen Gaggero (plaintiff) brought an action against defendant and respondent Anna Yura (defendant), in her capacity as a successor trustee of a real estate trust, arising out of an agreement to purchase an ocean front residence owned by the trust. The primary issue was whether plaintiff and the predecessor trustee, Fredrick Harris (Harris), had reached an agreement to certain conditions, covenants, and restrictions (CC&Rs) prior to Harriss death, such that plaintiff was entitled to specific performance of the purchase agreement. Following a bench trial, the trial court entered judgment in favor of defendant and orders granting defendants motion for attorney fees and costs and denying, in part, plaintiffs motion to tax costs. Plaintiff appeals from the judgment and those postjudgment orders.

Naasir Talibdeen appeals from an order revoking his probation and imposing an 11-year state prison sentence as a result of his earlier no contest plea to 4 counts of second degree commercial burglary (Pen. Code, 459) and his admission that he had served 6 prior prison terms ( 659, subd. (b)).[1] Appellant contends that although he was charged with both a new offense and a violation of his probation arising from the commission of that offense, his Faretta[2]waiver of counsel applied only to the trial on the new offense and not the probation revocation proceedings. He also claims the court abused its discretion in imposing the previously suspended 11 year sentence. Court affirm.

Jarek Molski appeals from a post-judgment order awarding his attorney's fees in the amount of $6,659.15 after he prevailed on claims for violation of the California Disability Act and the Unruh Civil Rights Act. He contends that the trial court erroneously allocated hours to a settling co-defendant and abused its discretion by applying a negative multiplier to reduce the fee award. Court affirm.

Russell Lee Gooch appeals from the judgment entered following his conviction by a jury on one count of stalking with a protective order in effect (Count 1 - Pen. Code, 646.9, subd. (b)),[1] two counts of attempting to dissuade a witness from reporting a crime (counts 2 and 3 - 136.1, subd. (b)), and one count of violating a protective order by an act involving a threat of violence. (Count 6 - 166, subd. (c)(4).) The convictions occurred at appellant's second trial; at the first trial the jury deadlocked on all counts and a mistrial was declared. The trial court sentenced appellant to prison for six years, suspended execution of the sentence, and granted probation on various terms and conditions. Appellant contends: (1) the trial court erroneously determined that, on counts 3 and 6, venue was proper in Santa Barbara County; and (2) the prosecutor committed prejudicial misconduct. We reject the first contention. As to the second contention, Court conclude that one alleged instance of misconduct is without merit and the other has been forfeited because of a failure to object on misconduct grounds at trial. Accordingly, Court affirm.

Appellants Roberta Jean Killingbock,[1] and Lois Fadale are the widows of Jack Killingbock and Louis Fadale. Appellants appeal from a judgment of dismissal after an order sustaining a demurrer without leave to amend. They claim they are beneficiaries of an assignment, executed in 1966, granting their husbands an interest in an oil field in Santa Barbara County. They assert that respondents Loma Linda University (LLU) and a former well operator, now deceased (Devine), engaged in wrongful conduct which caused them to lose their investments. Appellants seek to recover the market value of 500,000 barrels of crude oil from LLU and the widow and family trust of the well operator. Court reverse in part and remand.

Defendant and appellant Michael Roberson (defendant) appeals from the trial courts ruling on his Pitchess[1]motion, arguing that we have a duty to review the trial courts in camera proceeding on his motion to determine whether any discoverable police personnel records were incorrectly withheld. Based on our review of the transcript of the in camera proceeding, Court conclude that the trial court did not abuse its discretion in determining that there were no discoverable police personnel records. Court therefore affirm the judgment.

Defendant and appellant Rufino Valencia Deltoro was charged with possession of a controlled substance for sale (Health & Saf. Code, 11351, count 1), being under the influence of a controlled substance ( 11550, subd. (a), count 2), and possession of drug paraphernalia ( 11364, count 3). He moved to suppress the prosecutions evidence against him, contending it was the product of an unlawful detention and search. (Pen. Code, 1538.5.) The trial court denied the motion. A jury then found defendant guilty as charged in counts 2 and 3, and found him guilty of possession of heroin as a lesser included offense of possession of heroin for sale, in count 1. ( 11350.) Defendant admitted that he had sustained one prior strike conviction (Pen. Code, 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and one prior prison term (Pen. Code, 667.5, subd. (b)). The trial court granted defendants Romero motion as to his prior strike conviction and then sentenced him to three years in state prison. On appeal, defendant contends the trial court abused its discretion in denying his motion to suppress evidence since his detention was unduly prolonged, and the warrantless search of his room was unlawful. Court affirm.

Trevon Cole appeals from the judgment entered following a court trial in which he was determined to be a mentally disordered offender (MDO). (Pen. Code, 2962 et seq.)[1] Appellant claims that the evidence does not support the finding that his severe mental disorder was a cause of or an aggravating factor in the commission of the MDO offenses. ( 2962, subd. (c).) Court affirm.

A jury found defendant Gary Lemont McIntosh guilty of first degree residential burglary and attempted first degree residential burglary. Additionally, the jury found he had four prior felony convictions. The trial court sentenced him to state prison for an aggregate term of 50 years to life plus 31 years. On appeal defendant contends: (1) the trial court abused its discretion when it failed to grant a mistrial or strike the jury panel when a prospective juror saw him in shackles[1] outside of the courtroom; (2) the trial court failed to exercise informed discretion when it imposed the three strikes sentence on the burglary charge; and (3) the aggregate sentence constitutes cruel and unusual punishment. Disagreeing with these contentions, Court affirm the judgment.

On May 1, 2004, defendant Michael Dean Minix blocked the path of an 11-year-old girl and her grandmother as they walked to their apartment. He grabbed the girl and pushed the grandmother to the ground. He pulled the girl off the walkway and pinned her against a wall. The grandmother got up and hit him in the head with a purse full of quarters. When defendant formed a fist to hit the grandmother, the girl screamed and defendant fled on his bicycle. Later that day, defendant approached a woman and her eight-year-old daughter and offered to help carry an item to their apartment in the same complex. The mother accepted his help. Defendant entered their apartment and sat on the couch uninvited. He grabbed the girl, had her sit on his lap, and rubbed her leg. The mother pulled her daughter away and ordered defendant to leave. He wanted a hug but the mother refused. As she pushed him away, he grabbed the mothers breast and then left. Defendant next approached a girl and boy playing in a patio of an apartment in the same complex. He grabbed the girl and tried unsuccessfully to lift her over the fence. She struggled free. The girl and boy ran into the apartment. Defendant got in a Jeep and drove towards the assistant manager of the apartment complex who had been alerted about defendants behavior and was attempting to write down defendants license plate number. The assistant manager got out of the way. Officers arrived and chased defendant into an apartment whose occupants were able to flee. When defendant came out, he held a metal cable and lock. He was then apprehended.

Jane T. has a lengthy mental health history, dating back to at least 1992. She was adjudged gravely disabled and a permanent conservator was appointed on May 20, 1998, under the Lanterman-Petris-Short Act. (Welf. & Inst. Code, 5000, 5350 et seq.) Over the ensuing years, the conservator was reappointed. The most recent reappointment, and the subject of this appeal, was ordered on September 23, 2008, and expires by operation of law on September 22, 2009. Court appointed counsel to represent Jane on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to exercise its discretion to independently review the record and determine whether there are any arguable issues on appeal. (Conservatorship of Ben C. (2007) 40 Cal.4th 529; People v. Wende (1979) 25 Cal.3d 436.) Jane was advised by counsel of the right to file a supplemental brief. Jane has filed a supplemental brief stating she is not gravely disabled, that it is time for her to have control of her own money and life decisions, and that she is capable of making her own decisions.