CA Unpub Decisions

After the trial court found appellant, Leonel Garcia, not guilty by reason of insanity, he was committed to Patton State Hospital for 10 years. Garcia contends the maximum term of commitment calculated by the trial court failed to apply Penal Code section 654 to stay punishment for conduct that was incidental to facilitating one objective. Court agree and modify the judgment accordingly.

Appellants Jovan and Vesna Jovanovic (the Jovanovics) challenge an order denying their motion to set aside a judgment after a contested trial in an unlawful detainer action. For the reasons stated below, Court affirm.

This is the second appeal filed by plaintiff Peter P. Nghiem in this case. Plaintiff sued his former employer Fujitsu Microelectronics, Inc. (FMI), among others, for wrongful termination. The matter was arbitrated pursuant to FMIs written arbitration policy and the arbitrator ruled against plaintiff. Plaintiff challenged the ruling by way of a petition to the superior court to vacate the arbitration award. The superior court denied the petition. (Code Civ. Proc., 1285.)[1] Plaintiff took his first appeal from the order denying his petition to vacate the arbitration award. (Nghiem v. Fujitsu Microelectronics, Inc. (Dec. 13, 2006) H029952 [nonpub. opn.] (Nghiem I).)[2] After reviewing the briefs and the record in Nghiem I, we determined that the order was not appealable and obtained supplemental briefing on the question of whether we should dismiss the appeal as being taken from an unappealable order. Defendants urged us to dismiss. Plaintiff asked us to reach the merits by treating the appeal as a petition for extraordinary relief. It was appropriate to do so, he claimed, because confirmation of the award and entry of judgment of confirmation here would be a mere formality in light of the trial courts denial of Plaintiffs motion to vacate. . . . . The judgment is affirmed.

Defendant Barton Rhett Williams was sentenced to 32 months in prison under Californias three strikes law. (Pen. Code, 1170.12.)[1] The strike upon which the trial court relied in imposing the sentence was a 1989 conviction for robbery in Oregon. Defendant argues that the Oregon conviction would not be considered robbery under California law and, therefore, that it could not have been used as a strike. In particular, defendant maintains that the mental state required for robbery in Oregon is something less than that required in California. We conclude, as did the appellate court in People v. Zangari (2001) 89 Cal.App.4th 1436 (Zangari), that there is no difference between Oregon and California law with respect to the mental state required for robbery. Accordingly, Court affirm the judgment.

Jeff Breibart, who formerly represented plaintiff Robert Foster in this action, appeals from a judgment making him liable for $3,925 in attorney fees and costs awarded to defendant Kate Warner under Code of Civil Procedure section 425.16, and jointly and severally liable with his former client for $865 in discovery sanctions. He contends that the attorney fee and cost award against him was unauthorized by law and that the trial court abused its discretion in imposing discovery sanctions on him. We agree with the former contention and will direct that the judgment be modified to make Warners attorney fee and cost award payable solely by Foster. Court ffirm the judgment as so modified.

Plaintiff Gary S. DeWeese was a longtime employee of the Office of the Treasurer of the University of California (the university, UC, or the Regents). In 2002 the group in which he worked was eliminated. All of the employees in DeWeeses group, including DeWeese, were notified that their employment was to be terminated. DeWeese approached David Russ, the treasurer, with a proposal for the creation of a real asset investment group that DeWeese would direct. Russ approved a one-year trial period for both the group and DeWeese as its director. When Russ decided to make the group permanent but hired someone other than DeWeese to head the group, DeWeese filed a formal complaint with the university. After both DeWeese and Russ submitted evidence, a fact finder found that DeWeese had not been promised employment beyond a one-year term and denied his request to be hired as the director. DeWeese challenged that finding by filing in the superior court a petition for a writ of mandate alleging that he had been denied a fair hearing and that the fact finders decision was not based on substantial evidence. He included in his petition causes of action for breach of contract. The trial court found that DeWeese was a temporary employee and therefore could be discharged without being afforded all of the due process rights of a permanent employee, and that in any event he had been afforded a fair hearing. The court granted summary judgment on the breach of contract claims on the ground that the rights of a public employee are determined by statute and not by contract. DeWeese challenges both the denial of the writ petition and the dismissal of his breach of contract claims.
Court conclude that, assuming DeWeeses one-year assignment as the director of the new asset investment group should be regarded as an extension of his prior long-term employment with the university and that he therefore was entitled to due process before termination, he received all of the protections provided by the rules of the university and guaranteed by due process. In terminating DeWeese, the university neither breached a contract nor violated the provisions of any applicable statute. Therefore, the trial court properly denied the petition and dismissed the contractual claims.

Defendant Sean Walter Harris, previously convicted of a registrable sex offense, appeals his conviction for failing to register within five days of a change of his residence, in violation of the Sex Offender Registration Act (the Act), Penal Code[1] section 290 et seq. Defendant contends that the trial court erred in rejecting his request that the jury be informed, as he was prepared to stipulate, that he was required to register, without indicating the nature of the offense giving rise to the registration requirement, and that he was then denied due process when the jury was informed, pursuant to stipulation, that he was previously convicted of oral copulation of a 14-year-old girl. We conclude that the trial court correctly ruled that the prosecution was entitled to inform the jury that defendant had previously been convicted of a sexual offense, and it did not err, or deny defendant due process, in advising the jury pursuant to stipulation of the nature of the sexual offense. Nor did defendant receive ineffective assistance of counsel because his attorney opted to have the jury advised of the nature of the prior sex offense, fearing that the jury might suspect something worse if not told what the offense had been. Thus, Court affirm the judgment of conviction.

Defendant Thomas Douglas McElveen appeals the judgment and sentence imposed after a jury returned guilty verdicts on charges in case number SC150298A that he committed felony petty theft with a prior (Penal Code, 666)[1] and misdemeanor battery ( 242). In case number SC133009A, defendant appeals the trial courts decision to revoke his probation. Defendant contends: (1) He was denied his federal constitutional right to be present during all critical phases of his trial when the trial court allowed a jury readback to occur outside his presence; (2) his counsels failure to advise him he had a constitutional right to be present during the readback constitutes ineffective assistance; (3) the trial court abused its discretion in sustaining a petition for revocation of probation in SC133009A; (4) he was denied his federal constitutional right to notice of the allegation upon which probation was revoked; (5) the trial court erred in allocating pre-sentence custody credits; and, (6) he was denied his federal due process rights and equal protection rights as a result of the trial courts failure to award pre-sentence custody credits. Finding defendants contentions without merit, Court affirm.

Robert Weis sued Kaiser Foundation Hospital (Kaiser) for wrongful termination after his management position was eliminated and he was not selected for other open positions. His complaint alleged that Kaiser discriminated against him because he has a disfiguring eye condition, and then retaliated against him after he complained about the discriminatory treatment. Kaiser successfully moved for summary judgment on the grounds that Weis could not show that Kaiser acted as a result of a discriminatory motive when it terminated his position and did not select him for others, or that there was a causal connection between his discrimination complaint and Kaisers allegedly retaliatory employment decisions. Court agree with the trial courts assessment of the evidence and affirm.

Todd M. Ferguson pleaded guilty to second degree murder and related offenses in 1983. He was sentenced to 15 years to life. The Board of Parole Hearings (Board) has denied him parole 10 times. After the latest denial, the superior court granted Fergusons petition for habeas corpus and ordered him released on parole. The People appeal. Court reverse for the following reasons. Court must employ the extremely deferential some evidence standard of review. Despite the passage of well over two decades, and Fergusons positive institutional behavior and favorable psychological evaluation, there is some evidence in the record that parole release at this time would pose an unreasonable risk of danger to society.

James H. Nance (appellant) appeals from an order denying his motion to vacate the renewal of a judgment. (Code Civ. Proc., 683.170.) Court conclude the court correctly denied appellants motion and affirm.

Plaintiff Kathleen Bonner sued defendant City of Menlo Park for personal injuries she sustained when she was struck by a truck. She appeals from a judgment in favor of the City of Menlo Park. Bonner correctly argues that the trial court erred in finding as a matter of law that the sole cause of the accident was the negligence of the truck driver. Accordingly, Court reverse the judgment and remand the matter for further proceedings.

Defendant Gabriel Arturo Bustamante appeals from the order modifying the terms of his probation to include alcohol related conditions. Court affirm.

Penelope Williams sued her former employer, the Contra Costa Community College District (the District), her supervisor Rosemarie Russo, and Steve Ward, another District employee, for retaliation under the Fair Employment and Housing Act (FEHA). The District successfully moved for summary judgment. Court conclude Williams failed to raise a triable issue of fact over whether the Districts stated non-retaliatory business reasons for the employment actions taken against her were untrue or pretextual, and affirm.