CA Unpub Decisions

On November 14, 2005, a complaint was filed in the Kern County Superior Court charging appellant, Kwame Kekaula, with, in count 1, a violation of Health and Safety Code section 11359 (possession of marijuana for sale); in count 2, a violation of Health and Safety Code section 11378 (possession of a controlled substance for sale); and, in count 3, a violation of Penal Code section 12021, subdivision (a)(1) (felon in possession of a firearm). It was further alleged that a principal was armed with a firearm in the commission of the offense charged in count 1 (Pen. Code, 12022, subd. (c)) and that appellant was armed with a firearm in the commission of the offenses charged in count 2 (Pen. Code, 12022, subd. (a)(1)). On December 19, 2007, appellant filed a request for a certificate of probable cause on the sole ground that the search and seizure was illegal. On the same date, the trial court issued the certificate of probable cause.

In August of 2006 appellant Juan Lopez entered into a written employment contract with respondent Parlier Unified School District ("the District"). Under the contract, the District employed appellant as a "Director of Curriculum & Instruction/Project" for a three-year term commencing on August 1, 2006, and terminating on June 30, 2009. Near the end of his first year on the job, on or about May 21, 2007, appellant was served by the District with a letter advising him "you will be reassigned from your current administrative position for the ensuing 2007/08 school year." The District assigned appellant to another administrative position at the same salary. Appellant filed in superior court a petition seeking a writ of mandate directing the District to reinstate him to his Director's position for the 2007/08 school year. Appellant contended that under Education Code section 44951[1]he was entitled to remain in his Director's position because the District did not notify him by March 15, 2007 that he would be reassigned to a different position for the 2007/08 school year. The superior court denied the petition and entered judgment in favor of the District. The court relied on a clause of section 44951 stating "[t]he provisions of this section do not apply to a certificated employee who holds a written contract with an expiration date beyond the current school year ." ( 44951.)

By a criminal complaint filed February 14, 2008, appellant Anita Cuellar was charged with six counts of forgery (Pen. Code, 475, subd. (c); counts 2-7) and single counts of identity theft (Pen. Code, 530.5, subd. (c)(3); count 1) and receiving stolen property (Pen. Code, 496, subd. (a); count 8). On March 10, 2008, pursuant to a plea agreement, appellant pled no contest to counts 1 and 8. On April 22, 2008, the court placed appellant on three years probation and ordered that she serve, as a condition of probation, 365 days in county jail, with credit for 12 days time served. Appellant did not request, and the court did not issue, a certificate of probable cause (Pen. Code, 1237.5).
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing. Court affirm.

D. K. appeals from the courts order declaring him a ward under Welfare and Institutions Code section 602. He argues the court abused its discretion when it found him unsuitable for deferred entry of judgment (DEJ) under section 790 et seq. Court affirm.

Dianna H. and Michael C. separately appeal from an order that terminated parental rights to their two children, Melanie C. and Donovan C., pursuant to Welfare and Institutions Code section 366.26.[1] Dianna argues the juvenile court should have granted her modification petition; and erred in not applying the benefit exception. ( 366.26, subd. (c)(1)(B)(i).) Michael makes the same arguments (his modification petition should have been granted and the benefit exception applied to him as well), and he also contends the children were not adoptable. None of these points is meritorious, so Court affirm.

E.G. (the mother) appeals from the courts rulings and orders at the six-month review. She argues the court lacked substantial evidence to conclude that her son should not be returned and that she had received reasonable services. Court find these arguments lack merit and affirm. She also asks this court to review rulings the juvenile court made with regard to one of her children, despite the termination of dependency. Court find any issues regarding this child to be moot.

Fairmont Specialty Group (surety) appeals from an order denying its motion to vacate a forfeiture and exonerate its bond, asserting that the trial court did not in open court declare forfeited the undertaking of bail as required by Penal Code section 1305, subdivision (a). Court agree with this contention and will reverse the order.

Following a jury trial, defendant was found guilty of battery upon a correctional officer (Pen. Code, 4501.5).[1] The jury also found true that defendant had sustained two prior strike convictions ( 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)) and two prior prison terms ( 667.5, subd. (b)). The People later agreed to dismiss one strike prior in exchange for defendants agreement to a six-year prison term. Defendant was sentenced in accordance with the agreement. On appeal, defendant contends Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 223 and 302 violate the due process clause of the Fourteenth Amendment by shifting the burden of proof to the defendant and undermining the presumption of innocence. Court reject these contentions and affirm the judgment.

To observe that the value of real estate in Orange County increased from 1977 to 2002 would be an understatement. Nevertheless, the trial court declined to provide an upward adjustment in rent pursuant to a lease executed in 1977 and set to adjust in 2002 to a sum which the Lessor could derive from said property if it were made available on the open market for new leasing purposes. Court are asked to review this seemingly paradoxical result.

A modification decision.

Defendant was convicted by jury trial of one felony count of attempting to commit a lewd and lascivious act on a child under 14 following an Internet sting operation. (Pen. Code, 664, 288, subd. (a).[1]) We reject his arguments on appeal that (1) he received ineffective assistance of counsel when his trial attorney failed to object to inadmissible testimony and (2) the trial court committed reversible error by failing to give two jury instructions. We agree, however, that the probation/conditional sentence order contains an erroneous reference to a booking fee, and Court order that reference to the booking fee be stricken. Court otherwise affirm the judgment.

Plaintiff Barbara Dobard appeals in propria persona from a judgment of the Alameda County Superior Court dismissing her action for Rescission of Sale [of] Alcatraz Avenue Properties against defendants and respondents Steven Tai, New Pacific Foreclosure Investments LLC, Rockridge Foreclosure Investments LLC, and JB Franklin Realty. In briefing that is virtually incomprehensible, appellant appears to challenge the action of the court as denying her a fair trial. She describes the nature of the case as follows: Defendants and their attorney violated the Civil Rights Acts against Discriminatory action against Blacks Afro-American individuals by entering into a conspiracy while using (Company Public Storage) performing a public auction Defendants conducted racial acts against the race of: Blacks-Afro Americans. Denying them equal participation in a publicly held open auction at the public storage establishment in the City of Berkeley, California. Unruh Civil Rights Act Section 51 (a)-(b). Court shall conclude appellant has failed to show that the court abused its discretion or otherwise erred in dismissing her action.

A grandmothers death generated litigation involving three granddaughters as to which of two wills should be admitted to probate. That dispute led to another round of litigation, with both sides filing a cross complaint accusing the other side of manipulating and abusing the grandmother. One of the granddaughters made a special motion under the anti-SLAPP statute (Code Civ. Proc., 425.16 (section 425.16)) to strike the cross complaint filed by the other two granddaughters. The trial court denied the motion because it concluded that, while the cross-complaint did allege some protected activity, the gravamen of the cross complaint was a private dispute between the parties, and therefore outside the scope of section 425.16. The losing granddaughter has appealed, contending that the trial court misconstrued the gravamen of her cross complaint. Upon our de novo review, Court agree with the trial court that the gravamen of the cross complaint puts it outside the protection of the anti SLAPP statute. Court therefore affirm.

Defendant appeals from judgments entered on his pleas in two dockets. His counsel has asked 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.) The judgment is affirmed.