CA Unpub Decisions

Defendant Frank Zupan murdered his wife Shauneen and tried to make it look like she had been shot in a road-rage incident. A jury convicted him of first degree murder and sustained special circumstances of financial gain and lying in wait, and found that he personally discharged a firearm. (Pen. Code, 187, 190.2, subds. (a)(1) & (a)(15), 12022.53, subd. (a)(1)(d).) The trial court sent him to prison for life without parole and he timely filed this appeal.
On appeal defendant argues that absent certain purported errors the jury could or should have rejected the claims that he laid in wait for Shauneen, that he killed her for financial gain and that he personally discharged a firearm. Court reject all of his claims and affirm the judgment.

After a jury trial, defendant Willie Ray Jones was convicted of assault using force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1))[1]and battery inflicting serious bodily injury ( 242, 243, subd. (d)). The jury also found true an enhancement allegation that as to each offense defendant inflicted great bodily injury under circumstances involving domestic violence. ( 12022.7, subd. (e).) After a subsequent bench trial, the court found true enhancement allegations that defendant had two prior convictions of serious or violent felony offenses. ( 667.) Sentenced to 25 years to life in state prison, defendant appeals.
Defendant contends that the trial court erred in: (1) denying his motion for reappointment of counsel; (2) denying a motion for a continuance during trial; (3) terminating his cross-examination of a witness; and (4) failing to instruct sua sponte that the jury must find each element of the offense true beyond a reasonable doubt. Finding no merit in his contentions of error, Court affirm the judgment.

Jennifer S. (appellant), the mother of A. E. (the minor), appeals from orders of the juvenile court adjudging the minor a dependent child, removing the minor from parental custody, and denying appellants petition for modification. (Welf. & Inst. Code, 360, subd. (d), 388, 395.)
Appellant makes several contentions of alleged prejudicial error. Disagreeing with those contentions, Court affirm.

This is an appeal from an order of dismissal entered after the trial court sustained a demurrer to an amended complaint without leave to amend. The dispositive issue is whether allegations in the amended complaint relate back to the original complaint, avoiding the statute of limitations bar. Court hold that the amended complaint relates back and reverse the order of dismissal.

Plaintiffs, 48 elderly individuals, brought this action against Fiserv ISS for: (1) breach of fiduciary duty; (2) fraudulent concealment; (3) aiding and abetting fraud; (4) violation of Corporations Code section 25504.1; and (5) violation of Business and Professions Code section 17200. (All undesignated statutory references are to the Business and Professions Code.) They appeal a judgment entered against them after the trial court sustained Fiserv's demurrer to their claims without leave to amend, contending that their allegations were sufficient to state the asserted causes of action. Court agree and reverse the judgment.

This is an appeal from a custody and visitation order entered after a four-day trial. The order awarded the parents, Paul and Tamara Lampe, joint legal and physical custody of their child, and provided for an increase in Pauls[1]time with the child to achieve a 50-50 custody sharing arrangement. Tamara appeals, contending the trial court improperly reduced her time with the child in retaliation for her allegation of sexual abuse against Paul, in violation of Family Code section 3027.5. Paul contends the trial court properly applied the best interest of the child standard, considering all the evidence and not just the unsubstantiated allegation of sexual abuse. Court affirm.

Appellant Jose Adrian Rey challenges his sentence on the grounds that (1) the imposition of an upper term sentence violated the principles set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham) regarding the constitutional right to a jury trial and (2) the imposition of a $100 penalty assessment under Government Code section 70372 was contrary to law. Court conclude that the imposition of the upper term sentence was justified by the superior courts determination that Rey was on probation at the time of his offense and that determination need not be made by a jury. (People v. Towne (2008) 44 Cal.4th 63 (Towne).) Court strike the reference to the $100 penalty assessment under Government Code section 70372 from the minute order and the abstract of judgment.

In this appeal, the People contend that the Superior Court improperly awarded certain conduct credits to respondent Richard Williams because the award of conduct credits was not authorized by any statute. Williams contends that the award of conduct credits was consistent with the policy of Tulare County at the time he was sentenced. Thus, according to Williams, not granting him the conduct credits, even if the award of conduct credits was not specifically authorized by statute, would be a violation of the ex post facto clauses of the federal and state Constitutions because he would be punished to a greater extent than other similarly situated defendants. For the following reasons, Court strike the award of conduct credits and remand for resentencing.

Appellant, Barbara B., appeals from the order of the juvenile court on December 12, 2007 at the conclusion of a recommitment hearing, finding her mentally retarded pursuant to Welfare and Institutions Code section 6500 and committing her to a facility in Florida.[1] Appellant contends the juvenile court erred in committing her without finding that her mental retardation caused her to have serious difficulty in controlling dangerous behavior as required by People v. Bailie (2006) 144 Cal.App.4th 841, 847-850 (Bailie). Respondent argues the court applied the correct legal standard and the evidence shows that appellant had serious difficulty in controlling her dangerous behavior due to her mental retardation. Because the trial court applied the correct legal standard in recommitting appellant, Court affirm the judgment.

Appellant, Xavier Spain Kennedy, had two small children, a two year old boy and a seven-month-old girl, with Erica Fuentes. On June 19, 2007, Kennedy and Fuentes were living in a motel in Kern County and began to argue. During the argument, Kennedy put his arm around her, pushed her outside the room, and locked the door.
The judgment is affirmed.

Virginia Surety Company (Virginia Surety) petitions for a writ of review from a decision of the Workers Compensation Appeals Board (WCAB) contending the WCAB applied the incorrect Schedule for Rating Permanent Disabilities (PDRS ). (Lab. Code, 4660, subd. (d).) Court conclude the WCAB appropriately applied the former 1997 PDRS because a treating physician issued a report before January 1, 2005, indicating the existence of permanent disability. Accordingly, Court deny the petition.

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. Court will deny the petition.

Benjamin Arebalo appeals from a judgment after a jury convicted him of possession of a firearm by a felon, receiving stolen property, possession for sale of controlled substances, heroin and methamphetamine, and street terrorism, and found true he committed the first three offenses for the benefit of a criminal street gang. Arebalo argues: (1) he received ineffective assistance of counsel because his defense counsel stipulated law enforcement officers lawfully entered his home pursuant to a search warrant; (2) the trial court erroneously denied his motion for mistrial because the prosecutor committed misconduct, or alternatively, his defense counsel was ineffective for failing to object to the prosecutors misconduct; and (3) the gang experts testimony exceeded its permissible scope and was prejudicial, or alternatively, his defense counsel was ineffective for failing to object to the experts testimony. Although Court agree defense counsel was ineffective for failing to object to aspects of the experts testimony, we conclude Arebalo was not prejudiced. None of his other contentions have merit, and Court affirm the judgment.

A modification decision.