CA Unpub Decisions

A modification decision.

Defendants Jesus Prieto and Jose Gonzalez were charged and convicted of the murder of Donald Monroe, and the attempted murder of three others. Additionally, the jury found true numerous enhancements and special circumstances. The crimes were the result of a gang-related drive-by shooting in which Gonzalez was the gunman and Prieto was the driver. Prieto contends the prosecutor committed misconduct in his closing argument and in presenting false testimony, that his trial counsel provided ineffective assistance by failing to request instructions on intoxication and by conceding guilt, and that the trial court erred in the aiding and abetting instructions given. He also asserts cumulative error. Court find no error and shall therefore affirm the judgment against Prieto.

Defendant Cletis Lamont Murdock was convicted of possession of cocaine base. (Health & Saf. Code, 11350.) The sole issue on appeal is whether the court erred in denying defendants Penal Code section 1538.5 motion to suppress evidence seized after he was detained. Court conclude that there was no error and affirm the judgment.

Marilyn T., mother of the minors, appeals from the orders of the juvenile court at a status review hearing continuing the minors in foster care. (Welf. & Inst. Code, 366.3, subd. (d), 395.) As best we can ascertain from the opening brief, appellant is challenging various aspects of the hearing, including the accuracy of the social workers report, the courts exclusion of evidence and the evidentiary support for the findings made by the court. Court affirm.

In August 1982, defendant Ramon Solorio Rodriguez went to a Sacramento car dealership and got a test drive in a Datsun 280ZX accompanied by the salesman. During the drive, defendant pulled onto a dirt road, pointed a gun at the salesman, told him to get out of the car, said he was going to take the car, and threatened the salesman not to report the theft. Nevertheless, the salesman immediately reported the crime and gave a physical description of defendant. Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

M.M. (appellant), the mother of D.M. (the minor), appeals from the juvenile courts orders adjudging the minor a dependent child of the court and removing the minor from parental custody. (Welf. & Inst. Code, 360, subd. (d), 395.) Appellant challenges the sufficiency of the evidence to support the courts jurisdictional finding and dispositional order of removal. Rejecting appellants claims, Court affirm.

M.F., the mother of O.H., L.F., Je.F., and Jo.F (the minors), appeals from orders of the juvenile court denying her petitions for modification without an evidentiary hearing (Welf. & Inst. Code, 388)[1]and terminating her parental rights ( 366.26, 395). Mother makes three contentions of alleged prejudicial error in the proceedings, including a claim that the courts denial of mothers request for an evidentiary hearing on her petitions constituted reversible error. Disagreeing with each of those claims, Court affirm.

A jury found James Ortiz guilty of first degree robbery, assault with a deadly weapon, criminal threats, unlawfully taking/driving a vehicle, and evading the police with reckless driving. The jury also found true an enhancement allegation that Ortiz personally used a deadly and dangerous weapon in committing the criminal threats offense. Ortiz waived a jury trial on alleged priors, and the court found that Ortiz had previously suffered two prison priors (Pen. Code,[1] 1203, subd. (e)(4) & 667.5, subd. (b)), and a serious felony prior, which qualified as a strike prior ( 667, subd. (a)(1), 668, 1192.7, subd. (c)). The court imposed a sentence of 18 years and four months, which included a six year upper term for the robbery conviction (doubled because of the strike).
Subsequent to our decision, the California Supreme Court issued its decision in People v. Towne (2008) 44 Cal.4th 63, which defined the scope of the prior conviction exception to the Apprendi rule. The Supreme Court then transferred this case back to this court with directions to vacate our previous decision and reconsider the case in light of Towne. We have received supplemental briefing from the parties addressing the impact of Towne on Ortiz's sentence. Based on Towne, Court now affirm the judgment as to both sentence and the convictions.

Ralph Herrera and Paul Brenner filed this action against their former employers, F.H. Paschen/S.N. Nielson and Westcoast Corp. (collectively F.H. Paschen). In their complaint, Herrera and Brenner alleged that F.H. Paschen had committed various Labor Code violations. F.H. Paschen filed a motion for summary judgment in which it claimed that both Herrera and Brenner were exempt from the Labor Code provisions at issue, since they were persons employed in an administrative capacity, as defined in Industrial Welfare Commission Wage Order 16-2001 (Cal. Code Regs., tit. 8, 11160). The trial court granted F.H. Paschen's motion for summary judgment and subsequently entered judgment in favor of F.H. Paschen as to both Herrera and Brenner.
On appeal, Herrera and Brenner claim that the trial court erred in concluding that F.H. Paschen established, as a matter of law, that they were exempt employees. Court agree and reverse the judgment.

The juvenile court declared 17-year-old Roberto A. a ward of the court (Welf. & Inst. Code, 602) after sustaining allegations that he committed robbery and commercial burglary. The court ordered Roberto to serve 72 days in Juvenile Hall, gave him 72 days of credit for time served, and placed him on probation. Roberto appeals, contending the court erred by denying his motion to suppress statements he made to police officers before he had been advised of his rights under Miranda v. Arizona (Miranda) (l966) 384 U.S. 436.
The judgment is affirmed.

A jury convicted Jesus Maldonado (Jesus)[1]of two counts of stalking (Pen. Code,[2] 646.9, subd. (a); counts 1 & 2), vandalism over $400 ( 594, subd. (a)(b)(1); count 3), simple assault ( 240; count 5), four counts of obstructing a police officer by filing a false report ( 148.5, subd. (a); counts 6-9), and one count of resisting an officer ( 148, subd. (a)(1), count 10).[3] The trial court sentenced Jesus to prison for two years on count 1. The court stayed sentences for counts 2 and 3 under section 654. For counts 5 through 10, the court denied probation and sentenced Jesus to 180 days with credit for time served.Jesus's sole contention on appeal is that the trial court erred in failing to give a unanimity of acts instruction to the jury on count 3, vandalism over $400, and this error was prejudicial. Court conclude any possible error was harmless, and thus, affirm the judgment.

In these consolidated cases Hector Vidana Chavouan appeals from the trial court's denial of additional custody credits which Chavouan contends he accrued while in two separate residential treatment programs amounting to an additional 307 days. The Attorney General concedes the trial judge should have granted at least 60 additional days of credit. While we agree with the Attorney General's concession, Court will reverse and remand the matter to the trial court to conduct an evidentiary hearing to determine whether Chavouan is entitled to additional credits beyond the conceded 60 days.

Defendant David Blake appeals from an order overruling his demurrer to plaintiff Ramsey Najor's complaint. Najor filed an action against Jay Walker, who is not a party to this appeal, and Blake, alleging that Walker fraudulently transferred his house to Blake. Blake is an attorney who represented Walker in a lawsuit between Najor and Walker. Blake demurred to Najor's first amended complaint on the ground that Najor failed to obtain a pre filing order under Civil Code[1]section 1714.10. Section 1714.10 ostensibly requires a plaintiff to obtain a pre-filing order prior to moving forward with an action that alleges a civil conspiracy between an attorney and his client. Blake also demurred to Najor's amended complaint on the ground that the complaint failed to state a cause of action. Blake argued that the complaint was legally insufficient to allege a cause of action for fraudulent conveyance, and that the complaint was barred by the litigation privilege. The trial court overruled Blake's demurrers.

Plaintiff Reinaldo Kahn appeals a judgment entered in favor of defendants Stephanie Humphries and Cory Humphries (together Defendants) following the court's grant of their motion to dismiss the action because the court concluded Kahn did not have capacity to pursue the action. Kahn contends the court erred by granting the motion because suspension of the corporate assignor's rights to do business after transfer to an assignee of a "thing in action" does not deprive the assignee of the right to enforce the assigned thing in action. He also contends his enforcement of the thing in action as the assignee does not prejudice the obligor of the assigned thing in action. Court reverse the judgment.