CA Unpub Decisions

K.M. appeals the findings and orders entered at the permanency planning hearing held pursuant to Welfare and Institutions Code section 366.26, including the denial of her Welfare and Institutions Code section 388 petition. Citing In re Sade C. (1996) 13 Cal.4th 952, she asks this court to exercise its discretion to review the record for error. The appeal is dismissed.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Bob N. Krug, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Petition denied. In a separate petition for writ of habeas corpus defendant alleges that he was denied the effective assistance of counsel[2]because his trial attorney did not call Elizette Morales as a witness, or have her declared unavailable and then present her prior testimony, and also did not introduce into evidence the prior favorable testimony of Ralph Robles and Sammy Perez. Court conclude, as Court explain below, that defendant has not made a prima facie showing upon which relief may be granted. Therefore, Court deny the writ petition.

After a jury trial, defendant was found guilty of all eight charged counts including unlawful sexual intercourse with a minor more than three years younger than him (Pen. Code,[1] 261.5, subd. (c)), three counts of unlawful oral copulation with a minor ( 288a, subd. (b)(1)), three counts of unlawful penetration of a minor with a foreign object ( 289, subd. (h)), and one count of unlawful sexual intercourse with a minor under 16 years of age by a person over 21 years of age. ( 261.5, subd. (d).)
In this appeal, defendant contends that the trial court committed several errors: (1) it erroneously instructed the jury with CALJIC No. 2.28, (2) it failed to give a limiting instruction on hearsay testimony, (3) it incorrectly overruled defense objections during defendants cross-examination, and (4) it improperly imposed the upper term in violation of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). He also asserts that the prosecutor committed misconduct. Court reject all of defendants contentions and affirm the judgment.

A jury convicted defendant of attempted murder (count 1Pen. Code, 664, 187, subd. (a))[1]and assault with a deadly weapon (count 2 245, subd. (a)(1)). Additionally, the jury found true allegations that defendant had personally used a deadly weapon in his commission of the count 1 offense ( 12022, subd. (b)(1)) and had inflicted great bodily injury in his commission of both offenses ( 12022.7, subd. (a)). Thereafter, defendant admitted that he had suffered a prior conviction for burglary on October 6, 2004, which was alleged as a strike prior, prior serious felony, and the underlying basis for a prior prison term enhancement. ( 667, subds. (a), (c) & (e)(1), 667.5, subd. (b).) The court imposed an indeterminate sentence of 14 years to life plus a determinate sentence of 10 years consisting of the following: the seven-year-to-life midterm on count 1, doubled pursuant to the strike prior; a consecutive three-year term for the great bodily injury enhancement; a consecutive one-year term for the deadly weapon enhancement; a consecutive five-year term for the prior serious felony; and a consecutive one-year term for the prior prison term. As to count 2, the court sentenced defendant to the midterm of three years, doubled pursuant to the strike prior, and a consecutive three-year term for the great bodily injury enhancement; however, the court stayed imposition of sentence on count 2 and its enhancement pursuant to the dictates of section 654. On appeal, defendant contends the court erred in imposing sentence on the prior prison term enhancement because his sentence had already been enhanced for the same conviction from which that prison term was derived. The People concede the issue. Court agree and, therefore, remand the matter to the trial court with directions to strike the one-year enhancement imposed for defendants prior prison term. In all other respects, the judgment is affirmed.

This appeal follows a court trial and defense verdict on a claim for medical malpractice arising out of the delivery of plaintiff Elaina Valdepena (Elaina), who was born in the emergency room (ER) of Mercy Hospital on Truxtun (Mercy Truxtun) in Bakersfield in November 1999 at 25 weeks gestation. Elaina has cerebral palsy and mental retardation. In 2004, Elaina brought this professional negligence action through her mother and guardian ad litem Kelly Smith (Smith), against Catholic Healthcare West, dba Mercy Hospital (the Hospital), and the ER doctor, Dr. Reagan Bellinghausen. Elaina asserts the verdict is not supported by substantial evidence and the trial court erred in excluding certain testimony from Smiths treating obstetrician. For the reasons stated below, Court affirm the trial courts judgment.

Pursuant to a plea agreement, defendant Artemio Trelles Lara was convicted of one count of violating Health and Safety Code section 11378 (possession of controlled substance for sale). The trial court sentenced defendant to three years in prison. On appeal, defendant contends: (1) the trial courts imposition of a three-year term violated the terms of his oral plea agreement which provided for a two-year term; and (2) the trial court lacked the authority to suspend his drivers license under Vehicle Code section 13202, subdivision (b). We agree with defendants second contention (which the People concede has merit) and reverse the courts order suspending defendants drivers license for a year. In all other respects, the judgment is affirmed.

Following the denial of her motion to suppress evidence (Pen. Code, 1538.5), appellant Christine Cole pled no contest to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). The court suspended imposition of sentence and placed appellant on three years probation.
On appeal, appellants sole contention is that the court erred in denying her suppression motion. Court will affirm.

Roger Mills petitions for a writ of review from a decision of the Workers Compensation Appeals Board (WCAB). (Lab. Code,[1] 5950, 5952; Cal. Rules of Court, rule 8.494.) Mills contends the WCAB misconstrued the law of apportionment as amended by Senate Bill No. 899 (Stats 2004, ch. 34, 33-34, 37-38), and erred by relying on the opinion of the agreed medical examiner. Finding the WCABs apportionment determination supported by both the law and substantial evidence, Court deny the petition.

On May 13, 2008, appellant filed an appeal from the Tulare County Superior Courts denial of his Motion for Modification Reconsideration of Sentence and/or Motion for Extraordinary Relief.
Appellant had been convicted pursuant to a guilty plea on or about October 25, 2007. Pursuant to the plea agreement, appellant was sentenced to two years in prison with an additional two years pursuant to Penal Code section 667.5, subdivision (b). In the Motion for Modification Reconsideration of Sentence and/or Motion for Extraordinary Relief, appellant claimed that his sentence was illegal in that his enhancement was imposed in violation of Cunningham v. California (2007) 549 U.S. 270.The trial court denied the motion. The only documentation indicating the courts ruling on the motion is an April 21, 2008, letter from the clerks office to appellant informing him that the motion had been denied on April 21, 2008. By an order filed on May 27, 2008, this court informed appellant that the court is considering dismissing the appeal on the ground appellant attempts to appeal from a nonappealable order. Appellant was granted 15 days leave to address the appealability of the denial of his motion. In response, appellant filed a letter brief stating, essentially without discussion, that the judgment is appealable.
The appeal is dismissed.

Plaintiffs Aial Adar Saig and Aharon Saig challenge the trial courts dismissal of their action with prejudice against defendant Asset Reliance, Inc., (ARI) after plaintiffs failed to appear for a case review hearing. We reverse the judgment because the trial court failed to notify plaintiffs it might dismiss their case and failed to consider the imposition of lesser sanctions for plaintiffs failure to attend a case review hearing. Accordingly, Court reverse.

A jury convicted Robert Charles Berg of attempted premeditated murder (Pen. Code, 187, subd. (a); 664, subd. (a); all further undesignated section references are to this code), assault with a semiautomatic firearm ( 245, subd. (b)); possession of nunchaku, a deadly weapon ( 12020, subd. (a)(1)); six counts of possession of a firearm by a felon ( 12021, subd. (a)(1)); two counts of possession of an assault weapon ( 12280, subd. (b)); and possession of ammunition by a prohibited person ( 12316, subd. (b)(1)). The jury also found several enhancements to be true, including the allegations that defendant personally discharged a firearm during the attempted murder ( 12022.53, subd. (c)); personally used a firearm in the attempted murder and assault ( 12022.5, subd. (a)); personally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)); and caused great bodily injury ( 12022.7, subd. (a)).
Defendants other arguments fare better. The Attorney General concedes, and we agree, section 654 required the trial court to stay, rather than impose concurrent sentences on, two felon-in-possession firearm counts because the court imposed consecutive sentences for possession of the same firearms as assault weapons. The Attorney General also concedes, and Court agree, the abstract of judgment must be corrected to reflect that the trial court imposed the indeterminate life term under subdivision (d) of section 12022.53, not subdivision (c), and stayed imposition of sentence on the section 12022.7, subdivision (a), enhancement. With these corrections, Court affirm the judgment.

A&A Ready Mix Concrete, Inc., (A&A) challenges the trial courts orders striking its cost bill and denying its motion to amend the judgment to include prejudgment interest. A&A contends the trial courts judgment finding in favor of its contract claims under a credit agreement entitled it to costs as the prevailing party, even though HB Parkco Construction, Inc., (Parkco) obtained a greater monetary recovery on its claims against A&A under a purchase agreement. A&A further contends all of its claims under the credit agreement constituted liquidated damages, entitling it to prejudgment interest.
Court therefore affirm the trial courts orders striking A&As cost bill and offsetting Parkos attorney fee award. Court dismiss A&As appeal of the order denying its motion to amend the judgment.

We affirm the trial courts refusal to compel arbitration of damage and restitution claims based on an arbitration clause that is among the narrowest Court have seen. Rather than an all-inclusive arbitration provision (such as one dealing with any dispute arising out of the contract), the arbitration clause in question only relates to termination, and does not make this remedy exclusive. Under these circumstances, Court reverse and remand to allow the trial court to exercise its discretion to delay arbitration of the termination remedy until the nonarbitrable court proceedings have been resolved.

Gilbert Garcia (defendant) was convicted of first degree murder (Pen. Code, 187, subd. (a)), attempted murder (Pen. Code, 187, subd. (a), 664), and possession of a firearm (Pen. Code, 12021, subd. (a)(1)), with certain enhancements (Pen. Code, 667, subd. (a)(1), 12022.5, subd. (a)). He was sentenced to life without the possibility of parole on the first degree murder count (doubled per Pen. Code, 667, subds. (d),(e)(1), 1170.12, subds. (b),(c)(1)), life with the possibility of parole on the attempted murder count (doubled per Pen. Code, 667, subds. (d),(e)(1), 1170.12, subds. (b),(c)(1)), one year and four months on the possession of firearm count, and an additional 16 years on the enhancements. He was also ordered to pay a restitution fine of $10,000 and to pay restitution of $97,000 to the victim. Court have examined the record and found no other issues to argue. (People v. Kelly, supra, 40 Cal.4th 106; People v. Wende, supra, 25 Cal.3d 436.) The order is affirmed.