CA Unpub Decisions

Defendant Albert Joe Avalos was charged with failing to register as a sex offender (count 1; Pen. Code, 290, subd. (g)(2); undesignated section references are to the Penal Code), resisting a peace officer (counts 2 & 3; 148, subd. (a)(1)), and providing false information to a peace officer (count 4; 148.9, subd. (a).) The information also alleged as to count 1 that defendant had suffered two prior strike convictions for lewd and lascivious acts with a minor ( 288, subd. (a), 667, subds. (d), (e)(2), 667.5, subd. (c), 1192.7, subd. (c)), both occurring on May 28, 1992, and had served two prior prison terms ( 667.5, subd. (b)).[1]
At sentencing, the trial court denied defendants Romero motion and imposed a state prison term of 25 years to life. Defendant contends: (1) the trial court abused its discretion by denying the motion; (2) his sentence constitutes cruel and unusual punishment; and (3) his constitutional right not to be placed twice in jeopardy was violated because his current offense is so minor, even when his recidivism is considered, that his life sentence represents being twice punished for his prior convictions. Court shall affirm.

Defendant Jerry Bright was convicted by a jury of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)),[1]misdemeanor driving under the influence (DUI) (Veh. Code, 23152, subd. (a)), and misdemeanor driving with an elevated blood-alcohol level. (Veh. Code, 23152, subd. (b).) The jury found defendant was armed at the time of his commission of the firearm offense and that his blood-alcohol level was 0.15 percent or more within the meaning of Vehicle Code section 23578 for purposes of the driving with an elevated blood-alcohol level offense. In a bifurcated court trial the trial court found defendant had two prior DUI convictions, had a prior serious felony juvenile adjudication for attempted second degree murder with personal use of a firearm and personal infliction of great bodily injury, and had served a prior prison term for possession of a controlled substance. The trial court ruled defendants prior juvenile adjudication could be used as a strike for purposes of Californias three strikes law. ( 667, subds. (b)-(i), 1170.12, 1192.7, subd. (c).) On appeal defendant claims several jury instructional errors, prejudicial prosecutorial misconduct in closing argument, several errors in the trial courts giving of a firecracker instruction, and error in the trial courts use of his prior juvenile adjudication in sentencing under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). Court affirm the judgment.

Petitioner claims the trial court erred in not awarding her interest on an amount the court had ordered the objector to pay her. Court agree and reverse the trial courts order.

Defendant John Henry Winters seeks reversal of his convictions or, in the alternative, for an order staying the consecutive term imposed for his assault conviction and remanding the matter for resentencing, claiming prejudicial error on a variety of grounds. Court affirm the judgment.

Ana Petero appeals from the trial courts denial of her petition for a writ of mandate (Code Civ. Proc., 1085) against respondents Contra Costa Community College District (district) and its governing board. By that petition, she sought to compel respondents to reinstate her on the grounds that the district failed to provide her a hearing pursuant to Education Code section 87740 following its actions denying her tenure and dismissing her as a full time probationary academic employee. Court shall conclude substantial evidence supports the trial courts laches finding, and so affirm.

Mother P.P. and father G.R. appeal from an order terminating their parental rights to their now four-year-old son, M.R. They contend the court erred in concluding that the childs relationship with neither his siblings nor his mother was sufficient to outweigh the benefits of adoption. In addition, they contend that a conflict of interest in the joint representation of M.R. and his older siblings prevented the siblings from presenting their objections to the termination of parental rights. Court affirm.

Anthony Payne appeals from a judgment entered after revocation of his probation. He contends the court erred in imposing a restitution fine (Pen. Code, 1202.4, subd. (a)) and a domestic violence fund fee ( 1203.097) in connection with the reinstatement of his probation after his original probation was revoked. Court affirm the judgment.

Rebecca O. and William B. (Mother and Father) appeal from orders terminating their parental rights as to minors S.B. and W.B. Mother contends that the juvenile court abused its discretion in denying her pre-termination Welfare and Institutions Code section 388[1] petition seeking an extension of reunification services. Father and Mother join in arguing that the adoption report of the Napa County Department of Health and Human Services (Department) failed to provide an adequate evidentiary foundation for the courts finding of adoptability. Finding no basis for reversal on either ground, Court affirm the orders terminating Mothers and Fathers parental rights.

T.H. appeals from orders sustaining a petition pursuant to Welfare and Institutions Code[1] section 602 and declaring him a ward of the court. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) T.H. has been apprised of his right to file a supplemental brief, but he has not done so. The orders appealed from are affirmed.

D&M Construction Inc. (D&M) appeals from a judgment entered upon the trial courts order granting the respondents, City of Los Angeles (the City) and Washington International Insurance Company (Washington), motion for judgment on D&Ms complaint. Under a contract with Washington, D&M agreed to complete a construction project for the City. Disputes arose concerning the project construction. The Citys Board of Parks & Recreation Commissioners (the Board)the Citys contracting agency for the projectconducted a review of the matter. As a result of the proceeding, the Board adopted findings that D&M was an objectionable entity under the contract documents and was in default. The Board directed Washington to remove D&M from the project. After D&M was terminated, it filed the instant lawsuit against Washington and the City for breach of contract and interference with contract, respectively. The matter proceeded to a bench trial. During the first phase of the trial, the court granted the Citys and Washingtons motions for judgment, ruling D&M failed to exhaust its administrative remedies to set aside the Boards determinations. The court held the Boards determinations were final and binding on D&M, and effectively created a defense to D&Ms affirmative claims. During a second phase of the case the court also ruled in favor of Washington and the City on their respective cross claims against D&M. The court also granted Washingtons and the Citys requests for attorneys fees. Affirm the judgment in all other respects.

Defendants and appellants, Jose Luis Gonzalez and Aurora Gonzalez, appeal from the judgments entered following their convictions, by jury trial, for their roles in the death of a neighbors 19 month old child. Aurora was convicted of felony child abuse. Jose was convicted of felony child abuse, second degree murder, assault resulting in the death of a child under eight, with an enhancement for infliction of pain likely to cause great bodily injury. (Pen. Code, 273a, subd. (a), 187, 273ab, 12022.95.) Sentenced to state prison for two years (Aurora) and 25 years to life (Jose), the defendants contend there was trial error. The judgments are affirmed.

This is an appeal from a summary judgment granted to an employer after one of its former employees filed suit alleging the employer fired her because she was pregnant. The plaintiff alleges violations of the California Fair Employment and Housing Act (Gov. Code, 12900 et seq.), specifically sections 12940 (setting out specific types of unlawful conduct by employers, labor organization, employment agencies and others), and 12945 (relating to pregnancy leave and other accommodations). Court conclude that the contested declarations are admissible and constitute substantial circumstantial evidence, when considered with other evidence presented by plaintiff, which is sufficient to raise triable issues of material fact as to the reason for plaintiffs termination. Therefore, the summary judgment must be reversed and the matter remanded for further proceedings.

Appellant Alfredo Melendez, Jr., was convicted by jury trial of assaulting police officers, exhibiting a firearm, and being a convicted felon in possession of a firearm. On appeal, he contests whether the trial court erred in denying his motion for an in camera review of certain police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531, and its statutory codification in Evidence Code sections 1043 et seq. He raises a related issue claiming that if his motion was properly denied on procedural grounds, then his trial counsel rendered ineffective assistance. The respondent argues that there was no ineffective representation because trial counsel did all he was supposed to do in filing and pursuing the Pitchess motion, and that the motion was properly denied on the merits. We conclude that appellant satisfied the plausible scenario requisite for limited discovery as described by our Supreme Court in Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026 (Warrick). Court therefore shall reverse the judgment of conviction with directions and remand the case to the trial court for further proceedings.

Herschel Rahmanizad appeals the judgment entered in favor of the Montecito Condominium Homeowners Association (the HOA) on Rahmanizads cross-complaint seeking distribution of insurance proceeds the HOA received as a result of water damage to Rahmanizads unit. Rahmanizad also appeals a post judgment order re attorney fees and costs. The HOA cross-appeals from the post judgment order. Court reject the various claims of the parties and affirm the judgment and the trial courts post judgment order.