CA Unpub Decisions

Carey J. seeks writ review of juvenile court orders terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing regarding his daughter, Monique J. He contends there was not substantial evidence to support the court's finding he received reasonable reunification services. Court deny the petition.

A jury convicted defendant of first degree burglary (count IPen. Code, 459),[1]petty theft with a prior (count II 666), and felony receipt of stolen property (count III 496). After a bifurcated bench trial, the trial court found true gang enhancement allegations as to all three counts. On appeal, defendant makes four contentions: (1) the conviction on count II for petty theft with a prior ( 666) must be reduced to misdemeanor petty theft ( 488) as defendant did not have a qualifying prior theft conviction; (2) the court erred in permitting defendant to be convicted of both the theft and receipt of the same property and that the receipt offense, therefore, must be reversed; (3) the court erred in failing to advise defendant of his right to a jury trial on the gang enhancements and to take an appropriate waiver of that right; and (4) the court erred in finding the gang enhancement allegations true. The People concede defendants first, second, and third issues, but contend substantial evidence supported the trial courts finding on the gang enhancements and maintain the remedy for the erroneous convictions for both the theft and receipt offenses is reversal of the theft offense. We agree with defendant that the court erred in permitting conviction on both counts II and III and, therefore, reverse the conviction on count III. Likewise, we agree the count II conviction must be reduced to petty theft and direct the superior court to correct the sentencing minute order accordingly. Additionally, Court agree the court failed to properly admonish and take defendants waiver of his right to a jury trial on the gang enhancements and, therefore, reverse those findings. Finally, Court reverse the true findings on the gang enhancements because we find they were not supported by substantial evidence. In all other respects, the judgment is affirmed.

In our decision in Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785 (Robertson I), we held the lodestar adjustment method of calculating attorney fees was applicable under the fee-shifting statute of the Song-Beverly Consumer Warranty Act (Song-Beverly Act).[1] However, we remanded the case for recalculation of the award of attorney fees because the trial court applied some of the same factors in determining both the lodestar amount and the multiplier. (Robertson I, supra, at p. 822.) In its redetermination of the fee award on remand, the trial court used the same hourly rate it did in Robertson I[2]for purposes of computing the lodestar amount, and then enhanced that amount by a multiplier of 1.35 -- which was considerably higher than the .50 multiplier in Robertson I. Consequently, the attorney fees awarded on remand concerning the trial portion of the case were substantially more than the prior award. In addition, the trial court awarded attorney fees concerning the appeal in Robertson I in an amount that included a multiplier of .95.[3] The total award of fees and costs, including the redetermined attorney fees as to the trial portion of the case, attorney fees on appeal and costs came to $545,723. Defendant Fleetwood Travel Trailers, Inc. (defendant) appeals from the award of attorney fees, contending the trial court once again failed to eliminate the double counting of factors in the lodestar and multiplier or otherwise abused its discretion in computing fees. Plaintiffs Francis and Lorna Robertson (plaintiffs) respond that the trial court correctly reassessed the amount of attorney fees under the evidence submitted in connection with the new hearing without any duplication of factors, therefore the award should stand. Court conclude that plaintiffs are correct and thus affirm the trial courts fee award.

A modification decision.

Plaintiff David Elias appeals from judgments entered in favor of defendants North Orange County Community College District, Elmer J. Pellegrino, Jerry Stokes, Annette Olivas, Allen Fenner, Kathleen OConnell Hodge, Matthew Jones, Chris Lambrecht, Scott McKenzie, Peace Officers Standards and Training Commission (POST), and the City of Los Angeles, and an order entered in favor of Declues, Burkett & Thompson LLP and Patricia A. Lynch.[1] In plaintiffs own words, the gist of [his] action is that a college teacher . . . in [an] occupational program [at the Fullerton College Police Academy] expelled plaintiff for writing under protest on a libel presented to him to sign . . . . Court dismiss the appeal as untimely as to defendants North Orange County Community College District, Pellegrino, Stokes, Olivas, Fenner, Hodge, Jones, POST, Lynch, and Declues, Burkett & Thompson LLP. As to defendants the City of Los Angeles, Lambrecht, and McKenzie, the judgments are affirmed.

Petitioner Anthony Orozco has been incarcerated since April 1987 pursuant to a conviction for second-degree murder (Pen. Code, 187). In August 2006, the Board of Prison Terms (now the Board of Parole Hearings; hereafter Board) concluded Orozco was unsuitable for parole on the ground that he posed an unreasonable risk of danger to the public if released. On April 19, 2007, Orozco filed the instant petition for a writ of habeas corpus in which he alleges that the Boards decision lacks evidentiary support. In particular, Orozco contends the Board relied on non-existent facts in determining that the nature of the commitment offense supported a finding that Orozco is a threat to the public.
Court agree, and grant the petition.

Petitioner Anthony Orozco has been incarcerated since April 1987 pursuant to a conviction for second-degree murder (Pen. Code, 187). In August 2006, the Board of Prison Terms (now the Board of Parole Hearings; hereafter Board) concluded Orozco was unsuitable for parole on the ground that he posed an unreasonable risk of danger to the public if released. On April 19, 2007, Orozco filed the instant petition for a writ of habeas corpus in which he alleges that the Boards decision lacks evidentiary support. In particular, Orozco contends the Board relied on non-existent facts in determining that the nature of the commitment offense supported a finding that Orozco is a threat to the public. The petition is granted.

A jury found appellant Christopher Warren Scarberry guilty of attempted lewd and lascivious conduct on a child under age 14. (See Pen. Code,[1] 288, subd. (a), 664.) He was granted probation and was required to register as a sex offender. (See 290.) Scarberry appeals, contending that the trial court erred by (1) denying his motion pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) allowing a police officer to render an opinion on guilt; (3) allowing a witness to testify both as an expert witness and the lead investigator; and (4) admitting statements he made to police. He also asserts (5) a claim of prosecutorial misconduct, and challenges (6) the sufficiency of evidence to support his conviction. Court affirm the conviction.

Appellant Ester Adut appeals from an order granting Joshua Sakov $500 in attorney fees. Appellant has failed to include in the record a copy of the motion that precipitated the order she now contests. Given the state of the record, we are unable to conclude that the trial court erred in awarding the attorney fees. Accordingly, Court affirm.

Defendant was tried three times for the attempted murders of two victims, assault with a firearm, and being a felon in possession of a firearm. The first jury deadlocked. The second jury found defendant guilty of all counts, but the trial court granted a new trial motion. The third jury convicted defendant of all counts, and this appeal followed. Defendant now contends, first, that the prosecutor committed prejudicial misconduct by referring to the outcomes in the first two trials and by implying that evidence had been fabricated. Second, defendant contends that the trial court erred by allowing the prosecutor to amend the information on the eve of trial to allege a gang allegation, which, he further contends, should have been bifurcated for trial and of which there was insufficient evidence. Defendant argues that reversal is required as a result of these cumulative errors. Finally, defendant raises various sentencing errors. Court agree that there were errors in defendants sentence, but Court disagree with defendants other contentions. Court therefore modify the judgment to correct the sentencing errors, but Court otherwise affirm it.

The owner of a mobilehome park appeals from a rent control boards decision awarding a smaller rent increase than the owner sought. An earlier decision by the same rent control board led to the issuance of a peremptory writ of mandate, a new board hearing and decision on the rent increase application, another trial court order, and a prior appeal. The appellate record does not support the park owners contention that its due process rights were violated or that the board violated the Brown Act.

Robert Chavez appeals from the judgment entered after the trial court granted the City of Los Angeless motion for summary adjudication of his claims for disability discrimination, retaliation and harassment in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.)[1]and later granted a motion for summary judgment, resolving the remaining claims against the City and Dr. Shirley St. Peter, an occupational psychologist in the Citys Medical Services Division. Chavez contends triable issues of material fact exist as to each of his FEHA claims as well as his common law claim for intentional infliction of emotional distress. Court affirm the judgment as to St. Peter, but reverse as to the City because triable issues of material fact exist in connection with Chavezs retaliation claim.

Rebecca Cleland, whose previous conviction on charges of conspiracy to commit murder and first degree murder was overturned by this court,[1]appeals from the judgment entered after the jury on retrial again found her guilty on both charges. The jury also found true the special allegations the murder was committed for financial gain and while lying in wait. Cleland was sentenced to life in prison without the possibility of parole. She now contends she received ineffective assistance of counsel at her retrial, raising the question how unreasonable must a defense strategy be to warrant reversal on this ground. She also challenges (as she did unsuccessfully in her first appeal) the trial courts admission of evidence she retained counsel soon after the murder and prosecutorial comment on that evidence. Court affirm.

Appellant David S. appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 entered after the juvenile court found true the allegation that he committed second degree robbery (Pen. Code, 211). Appellant complains of the trial courts failure to include in its minute order the knowledge requirement it imposed as to one of his probation conditions. Court agree and direct the trial court to correct the order.