CA Unpub Decisions

David Jay Agosto, a former employee of the Grossmont-Cuyamaca Community College District (the District), appeals from a judgment entered against him on his petition for writ of mandate arising out of the District's termination of his employment. Among other things, Agosto claims that the Board of Trustees for the District (the Board) failed to comply with the notice provisions of Education Code section 72411 before terminating his employment. (All undesignated statutory references are to the Education Code.) Court agree, reverse the judgment, and remand the matter for further proceedings.

In this appeal, Willie Horton challenges the trial court's dismissal of his action filed against the Commission on Professional Competence (Commission), the San Diego Unified School District (District), and various individuals. The action challenged his termination from the District in 2001. Prior to filing the instant action, Horton had previously filed a state action and a federal action challenging the same termination at issue here. Both actions were resolved by a final judgment on the merits or its equivalent. Applying res judicata principles, the trial court sustained the defendants' demurrers without leave to amend and entered a judgment of dismissal in their favor. Court affirm the judgment.

Laura Lynne Mayer filed a petition for writ of mandate seeking an order reversing a decision by the Department of Real Estate (the Department) revoking her real estate license. The trial court granted her petition and remanded this matter to the Department for further proceedings. Mayer appeals from the judgment granting her petition and from a subsequent order of the real estate commissioner that, purportedly, again revoked her license. The Department seeks to dismiss the appeal on the ground Mayer lacks standing to appeal from a judgment in her favor and failed to exhaust her administrative remedies as to the subsequent order of the real estate commissioner. Court agree and dismiss this appeal.

Defendant Eugene E. Summers pleaded guilty to a robbery in violation of Penal Code section 211.[1] He also admitted two serious felony prior convictions within the meaning of sections 667, subdivision (a)(1), 668, and 1192.7, subdivision (c), and two felony "strike" convictions within the meaning of sections 667, subdivisions (b) through (i), 668, and 1170.12. At sentencing, the trial court denied Summers's Romero[2]motion to dismiss/strike one or both of his prior felony convictions under section 1385, and sentenced him under the "Three Strikes" law to 35 years to life in state prison. On appeal, Summers argues the court abused its discretion in refusing to strike at least one of his two strike priors. He further argues his sentence of 35 years to life constitutes cruel and unusual punishment under the federal and California Constitutions. Court disagree and affirm.

Paulina P. appeals judgments declaring her children, Marcus P. and Adriana A., dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b), and removing the children from her custody under section 361,
subdivision (c)(1). Paulina also contends that the court did not comply with notice provisions of the Indian Child Welfare Act, title 25 United States Code section 1901 et seq. (ICWA), and applicable state law. Court affirm the judgments.

Kirk G. appeals an order terminating his parental rights to his daughter, Victoria G., on the basis of abandonment. (Fam. Code, 7822.) He contends the evidence was insufficient to show he actually deserted or intended to sever entirely all of his parental obligations to Victoria. Court affirm.

A jury found Thomas Joseph Gabba to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,[1] 6600 et seq.),[2]after which the court committed him to Atascadero State Hospital (ASH) for a two-year term. On appeal, Gabba wisely does not challenge the sufficiency of the evidence to support the commitment order; indeed, the evidence is overwhelming. Rather, he contends that the trial court committed prejudicial error in permitting the prosecutions expert witnesses to testify as to (1) inadmissible hearsay utilized in forming their opinions, and (2) details of the SVP treatment program at ASH. He also maintains that his trial counsel rendered ineffective assistance in failing to pursue his (Gabbas) claim that the initial commitment petition was unlawfully filed. Court affirm.

Defendant Dennis Michael Sacks also known as Michael Sacks (defendant) appeals a default judgment entered on May 31, 2006, in favor of plaintiff Clifford R. Daniels in the amount of $228,896.52. Defendant, an attorney who represented himself in this matter, contends the trial court abused its discretion in denying his motions to set aside the default judgment. He also argues the default judgment is void because plaintiff failed to serve defendant with a statement of damages. Defendant also asserts that there was insufficient evidence to support the default judgment damages award. He claims default was entered due to defendants and his staffs inadvertence.
We conclude there was no abuse of discretion in denying defendants motions to set aside default, and plaintiff was not required to provide a statement of damages under Code of Civil Procedure section 425.11 because the action was not a personal injury or wrongful death action. Defendants sufficiency of evidence contention also lacks merit because it is inappropriate for this court to review the sufficiency of evidence supporting the default judgment. Court affirm the judgment.

Defendant Kari Lynn Sukane was placed on probation in two separate cases and ordered to complete the Drug Court Treatment Program, in lieu of going to prison. After numerous program violations, the trial court sentenced her at the same time on both cases. The court imposed the upper term in each case, for a total term of seven years in state prison. The two cases have been consolidated on appeal, and defendant now argues: 1) she was deprived of her right to a formal probation violation hearing, 2) the court abused its discretion when it imposed the upper term because it failed to consider or weigh her mitigating circumstances, and 3) the imposition of the upper term violated her right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 (Cunningham). Court affirm.

A jury convicted defendant Raul Salgado of attempted murder (Pen. Code, 187, subd. (a), 664), assault with a deadly weapon with force likely to produce great bodily injury ( 245, subd. (a)(1)), and robbery ( 211). The jury found that the attempted murder was willful, deliberate, and premeditated, and that defendant personally used a hatchet in the commission of the attempted murder and robbery. ( 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The jury also found that the victim was over age 65. ( 667.9, subd. (a).) The judgment is affirmed.

On January 23, 2007, a jury convicted defendant and appellant Christopher Dale Rumley of misdemeanor battery on a cohabitant under Penal Code section 243, subdivision (e)(1),[1]a lesser included offense of inflicting injury on a spouse in a traumatic condition under section 273.5, subdivision (a). The jury found defendant not guilty of child abuse likely to cause great bodily harm or death under section 273a, subdivision (a). The trial court sentenced defendant to 48 months of probation and 290 days in county jail, satisfied by time served.
On appeal, defendant contends that the trial court erred in instructing the jury with CALCRIM No. 372, and in sentencing defendant to 48 months of probation, instead of the statutory maximum of 36 months. For the reasons set forth below, we hold that (1) instructing the jury with CALCRIM No. 372 was harmless error, and (2) defendants term of probation should be reduced from 48 months to 36 months.

In August 2005, defendant stabbed two different men in the neck, using a wire splicer against one victim, and a knife against another. After defendant was apprehended by police, and detained in jail, he attempted to escape by posing as his cell mate who was being released. Defendant was found guilty of attempted murder and assault with a deadly weapon of both victims, and of attempted escape from county jail. Court find no prejudicial error and affirm the judgment.

In an information filed on March 23, 2006, defendant Parry Bunts was charged with robbery, a violation of Penal Code section 211. It was also alleged that defendant used a knife in committing the offense, within the meaning of sections 12022, subdivision (b)(1), and 1192.7, subdivision (c)(23). Defendant appeals, contending that the trial court erred in denying his motion to bifurcate the trial on the factors in aggravation. The judgment is affirmed.

Following a jury trial, defendant was found guilty of simple assault (Pen. Code, 240),[1]a lesser included offense of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)), and attempted criminal threats ( 664, 422), a lesser included offense of criminal threats ( 422). Defendant thereafter admitted to having sustained one prior strike conviction ( 667, subds. (c), (e)(1)(A), 1170.12, subd. (c)(1)(A)) and one prior serious felony conviction ( 667, subd. (a)). Defendant was sentenced to a total term of six years four months in state prison.On appeal, defendant contends (1) there was insufficient evidence to support the jurys verdict that he committed attempted criminal threats; and (2) the trial court abused its discretion in refusing to reduce the attempted criminal threat offense to a misdemeanor. Court reject these contentions and affirm the judgment.