CA Unpub Decisions

Defendant and appellant Donald Greer (defendant) pleaded no contest to charges of possession of a deadly weapon and possession of a controlled substance. After a lengthy delay, the trial court sentenced defendant to six years in state prison and awarded him 394 days of presentence custody credit. The trial court also issued a certificate of probable cause allowing defendant to challenge his sentence on appeal.
After reviewing the entire record, we requested that the parties file letter briefs addressing only the presentence custody credit issue raised by defendants supplemental brief. Court have reviewed the letter briefs filed by the parties, including the documents submitted with defendants request for judicial notice, and hold that the trial court properly denied presentence custody credit for the period defendant was also remanded to custody in a subsequent, unrelated case. Court further hold, however, that the trial court erroneously awarded defendant presentence custody credit for the period of time between his sentencing in the unrelated case and the sentencing in this case. We therefore reverse the award of presentence custody credit and remand this case to the trial court with instructions to amend the abstract of judgment to reflect the correct amount of presentence custody credit.

Appellant Saul A. Landaverde appeals from an order entered January 22, 2008, vacating a previous order, entered July 13, 2007, which modified the original sentence of November 21, 2006. The 2007 order was entered while the original judgment was on appeal, as was the 2008 order. Appellant contends the 2008 order was void, and that the 2007 modified sentence must be reinstated. We disagree, and affirm the order of January 2008.

James Omar Jones appeals from the judgment entered sentencing him to prison for two years following an order revoking probation. Previously, appellant pled no contest to two counts of second degree burglary (Pen. Code, 459), was sentenced to two years in prison with execution of his sentence suspended, and was placed on formal probation for three years under various terms and conditions including that he serve 365 days in jail and that he report to his probation officer within 24 hours after his release from custody. Pursuant to his negotiated plea, six counts of forgery within the meaning of Penal Code section 476 and one count of forgery within the meaning of Penal Code section 475, subdivision (b) were dismissed. The judgment is affirmed.

Appellant Francis Adarkwa pled no contest to one count of identity theft in violation of Penal Code[1]section 530.5 case number SA062256. He was given a two year sentence, suspended, and placed on probation. While on probation, appellant was convicted, following a jury trial, of three counts of grand theft in violation of section 487, subdivision (a), and 11 counts of forgery in violation of section 470, subdivision (d) in this case, number BA333148. Appellant appeals from the judgment of conviction, contending that the trial court erred in imposing the full consecutive mid-term of two years for his identity theft conviction. Respondent agrees. Court agree as well, and correct appellant's sentence in case number SA062256 to eight months, which is one third the mid-term. Appellant's total sentence for the two cases is three years and eight months.

Mother M. R. seeks review of the juvenile courts order terminating family reunification services and setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26. She contends the juvenile court erred in finding she was provided reasonable reunification services and in denying an extension of those services. Mother also claims a conflict of interest by the attorney representing six of the children constituted ineffective assistance of counsel.Substantial evidence supports the juvenile courts conclusion that mother was offered reasonable services. The court did not abuse its discretion in declining to extend services for an additional six months. Mother failed to raise an objection to counsel for the minors in the juvenile court, and therefore failed to preserve that issue for review. Court deny mothers petition on these grounds.

In this dependency case (Welf. & Inst. Code, 300 et seq.),[1]the parents of the subject dependent minor child have appealed to challenge an order that terminated their parental rights. The parents contend the dependency court erred when it ruled they had not carried their burden of establishing that the parental relationship exception to termination of parental rights ( 366.26, subd. (c)(1)(B)(i)) applies in this case. Our review of the record convinces us that the trial court did not abuse its discretion when making its finding on the matter. Court therefore affirm the challenged order.

The plaintiffs[1]brought this tort action against the driver and the owner of a car that struck a truck in which the decedent was a passenger (he later died of the resulting injuries), and also against the drivers employer, defendant Valley Rivco, Inc. (Rivco). Defendant Rivco filed a motion for summary judgment in its own behalf. The trial court granted the motion and entered judgment in behalf of Rivco. On appeal,[4]the plaintiffs contend that the so-called going and coming rule does not preclude defendant Rivco from being vicariously liable for the tort of its employee because there is a triable issue of material fact as to whether one of the rules exceptions applies. Court affirm.

Defendant Clifford John Vantilburg began sexually molesting a young girl when she was 11 years old and continued doing so until around April 19, 2006 a week before his arrest. Inadvertently observed on one occasion while he was having sexual intercourse with the victim, defendant assaulted and threatened to kill the witness if he reported the molestation.
On appeal, defendant contends, and the People concede, that he was improperly convicted of both continuous sexual abuse of the victim (count 11) and the discrete sex offenses committed against the same victim over the same period of time (counts 1, 2, 3, 5, and 6). Court reverse the judgment in part and remand the matter to the trial court for further proceedings.

Defendant Urberto Dotson was convicted after a bench trial of possession of methamphetamine for sale in violation of section 11378 of the Health and Safety Code. The court also found that defendant was armed with a firearm within the meaning of Penal Code section 12022, subdivision (c).[1] The trial court sentenced defendant to six years in state prison (middle term of two years on the possession of methamphetamine for sale, plus an additional four years for the arming enhancement).

On appeal, defendant asks that we strike the arming enhancement because the gun, a loaded .308 caliber rifle, appeared to be dusty, was located in a makeshift storage space in the same garage where the bulk of the drugs were found, and was accessible only by pulling down a wooden ladder, ascending several steps, and reaching through an opening in the sheetrock. According to defendant, he was not armed within the meaning of section 12022, subdivision (c), because the rifle was not readily accessible and was not near at hand to the drugs. As will be explained more fully below, defendant is incorrect. Court affirm the judgment.

Plaintiff Loretta Coursey, in her capacity as trustee of the Loretta Coursey Revocable Trust of 1991, appeals from the judgment of the trial court in favor of defendants Lomo Receiving Company, Inc., John Micheli, and Marysville Mini Storage Partnership (hereafter collectively defendants). The judgment was entered after the trial court granted defendants motion for judgment pursuant to Code of Civil Procedure section 631.8, subdivision (a) after the completion of the evidence.
Plaintiffs two arguments on appeal are: (1) the subsequent conduct of parties to a partnership agreement was not admissible to explain the terms of the agreement, and (2) defendants memorandum of costs following the judgment was invalid because the trial court granted defendants additional time to correct the verification attached to the memorandum. Neither of these arguments has merit, and Court affirm the judgment.

Defendant Lisa Ann Maroney entered guilty pleas to two counts of inflicting corporal injury on a child (Pen. Code, 273d, subd. (a)), and one count of felony dissuading a witness ( 136.1, subd. (c)(1)). The court sentenced defendant to 10 years and four months in state prison and imposed various fines and fees. On appeal, defendant contends: 1) the court abused its discretion in denying her application for probation; 2) her upper term for corporal injury to a child was an abuse of discretion; 3) the upper term and consecutive sentences violated her rights to jury trial and due process; and 4) assessments and fees were improperly imposed on a restitution fine. We shall strike a child abuse restitution fine ( 294, subd. (a)), strike several fees and assessments associated with that fine, order corrections to the abstract, and otherwise affirm.

On November 5, 2001, Modesto police officers investigated a Modesto residence in response to reports of drug activity. Officers performed a welfare check on the residence and found paraphernalia used in the manufacture of methamphetamine. Among the people in the residence were defendant Gay Lynn Martin and her three children, ages eight, three, and one. The eight year old child said when the adults were home they would do really cool experiments in the garage such as a big glass pot with white stuff in it and it was bubbling.
The judgment is affirmed.

James W. Cristler, John Purves, James G. Harrod, Sydney Moroff and Mark Lambert, individually and as the representative of a class of similarly situated persons (collectively Cristler), sued a parcel delivery company, Express Messenger Systems, Inc., doing business as California Overnight (Express Messenger). The lawsuit contained a number of causes of actions, all based on a core contention that Express Messenger improperly classified its employees as independent contractors. The case was litigated before a jury and, with respect to certain claims, a trial court. Express Messenger prevailed. Court conclude these contentions are without merit and affirm.

A.E. appeals orders declaring her minor children, Gilberto E., Daisy A. and Marilyn A. (minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b)[1] and removing them from her custody under section 361, subdivision (c)(1). A.E. challenges the sufficiency of the evidence to support the courts dispositional findings. Court affirm the orders.