CA Unpub Decisions

The City of Riverside Police Department (Department) appeals from the judgment denying its petition for a writ of administrative mandamus. The Department sought to compel defendant and respondent, Sara Adler (Adler), arbitrator, to set aside her order reinstating real party in interest Vincent Thomas to his employment as a police officer with the Department. The Department had terminated Thomass employment for allegedly sexually molesting his niece between January 1999 and July 2001.
The judgment is affirmed.

During the dissolution action of Michael H. Obrowski (father) and Sandra Obrowski (mother), mother filed an application for a domestic violence protective order under the Domestic Violence Prevention Act (Fam. Code, 6200 through 6389),[1]restraining father from having any contact with mother or her and fathers two children. The trial court granted a three-year protective order prohibiting father from contacting mother and from visiting or contacting the children, other than by means of correspondence. Father appeals the protective orders. He contends the court erred in failing to issue a statement of decision. Father also complains that the court violated his due process rights to notice and an opportunity to present his case by failing to follow various Family Code provisions relating to mediation, child custody, and termination of visitation. In addition, father contends the Domestic Violence Prevention Act (DVPA) does not apply and there was insufficient evidence that father committed any domestic violence. Court reject fathers contentions and affirm the protection orders.

Defendants Daniel M. Zarate and Mauricio Garcia Galindo appeal from resentencing following this courts remand in an earlier appeal. (No. E034901.) Both defendants contend their sentences to the upper term of six years on count 3 should be reversed under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).) Court find that the error was harmless, and Court affirm.

Defendants contend plaintiffs failed to provide proper notice of their motion for terminating sanctions. Defendants also argue that, even if there was adequate notice, the trial court abused its discretion in imposing terminating sanctions rather than less severe sanctions. Court conclude notice was sufficient and there was no abuse of discretion in granting terminating sanctions due to defendants repeated obstruction of plaintiffs attempts to conduct discovery. The judgment is affirmed.

Tommie D. (Tommie) appeals, contending the dependency court erred by finding Derrick S. (Derrick), the biological father, was also the presumed father of K.S. and granting Derrick joint legal and sole physical custody of K.S. under Welfare and Institutions Code section 361.2. Court affirm the dependency court.

Kristie P. (Mother) appeals from the juvenile courts order under Welfare and Institutions Code[1]section 366.26 terminating her parental rights to her son, Elliot. She contends the juvenile court failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) and there is insufficient evidence to show that Elliot is adoptable.

A jury convicted defendant of possession of heroin (count 1Health & Saf. Code, 11350, subd. (a)), transportation of heroin (count 2Health & Saf. Code, 11352, subd. (a)), giving a false name to a police officer (count 3Pen. Code, 148.9, subd. (a)), driving under the influence of drugs (count 4Veh. Code, 23152, subd. (a)), being under the influence of a controlled substance (count 5Health & Saf. Code, 11550, subd. (a)), and driving without a valid drivers license (count 6Veh. Code, 12500, subd. (a)). After a bench trial on several prior conviction allegations, the court found that defendant had suffered two prior strike convictions and one prior prison term. (Pen. Code, 667.5, subd. (b), 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) The court denied defendants Romero[1]motion to strike one of the prior strike convictions and sentenced defendant to 25 years to life.[2] On appeal, defendant contends the court abused its discretion in refusing to strike one of defendants prior strike convictions and that defendants sentence is violative of the federal and state constitutional proscriptions against cruel and unusual punishment. Court find the trial court acted well within its discretion in denying defendants motion and that defendants sentence is not constitutionally forbidden. Court, therefore, affirm the judgment below.

On June 16, 2006,[1]appellant Tony Leroy Willis pled no contest to 12 felony counts and five misdemeanor counts, and admitted two strike[2]and 10 enhancement allegations.[3] On September 1, appellant, without the assistance of counsel, moved to withdraw his pleas, and the court denied the motion; struck counts 2 through 7 and the arming, on-bail, and prior prison term enhancements; credited appellant with time served on each of the misdemeanors (counts 14, 15, 16 and 18); and imposed a prison term of 25 years to life on count 1 and concurrent 25-years-to-life terms on each of counts 8, 9, 11, 12 and 13. On count 10, the court imposed, and stayed pursuant to section 654, a term of 25 years to life.
On appeal, appellant contends (1) the court erred in failing to either grant his motion to withdraw his plea or, at the very least, appoint substitute counsel to present appellants motion to withdraw his plea, and (2) the court erred in failing to stay execution of sentence on the count 11 offense (possession of ammunition by a felon in violation of section 12316, subdivision (b)(1)) pursuant to section 654.Court reverse and remand for further proceedings.

The trial court found Martin Esteban Lopez to be incompetent to stand trial pursuant to the provisions of Penal Code section 1367 et seq.[1] He challenges the trial courts order, arguing it was not supported by substantial evidence and was the result of ineffective assistance of counsel. Court reject the challenges. Court remand, however, to permit the trial court to issue, if appropriate, an order authorizing the involuntary use of antipsychotic medications that complies with the statutory requirements.

On December 20, 2006, Pablo Loya and some friends were in the front yard of a house in Sanger when Roosevelt Maldonado and Freddie Mercado approached the group yelling, Sureo, and asking them, Whats up mutts? Loya and one of his friends responded that they did not bang. Two males started fighting and were soon joined by others. During the ensuing melee, appellant, Jesus Perez, who was then 16 years old, stabbed Loya in the side of the chest. Loya fell to the ground and was kicked in the head by Maldonado and Mercado. Loya died three days later from a single stab wound to the heart. Perezs appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Perez has not responded to this courts invitation to submit additional briefing. The judgment is affirmed.

Alvin Wiley petitions for a writ of review to inquire into and determine the lawfulness of the decision of the Workers Compensation Appeals Board (WCAB). (Lab. Code,[1] 5950, 5952; Cal. Rules of Court, rule 8.494.) Wiley contends the WCAB erred in concluding a two-year limit on workers compensation temporary disability (TD) benefits enacted as part of the 2004 workers compensation reforms (Sen. Bill No. 899 (2003-2004 Reg. Sess.); Stats. 2004, ch. 34, 29) runs consecutively to a year of enhanced industrial disability leave (IDL) payable to temporarily disabled state employees. Following our recent decision in Brooks v. Workers Compensation Appeals Board (2008) 161 Cal.App.4th 1522 [75 Cal.Rptr.3d 277] (Brooks), Court conclude the WCAB appropriately limited Wiley to a combined total of two-years of enhanced IDL and TD benefits.

On April 23, 2008, appellant filed a notice of appeal which appears to attempt to appeal the denial of his request to withdraw his guilty plea. Attached to the notice of appeal is a denial of his request for a certificate of probable cause. This court issued a briefing order directing appellant to address whether (1) the appeal is from a final judgment, (2) the appellant is attempting to appeal the validity of the plea without a certificate of probable cause, and (3) the appeal should be dismissed. Appellant responded by arguing that the notice of appeal is not from a final judgment, he is attempting to withdraw his plea without a certificate of probable cause, and the appeal should not be dismissed. He also states he was due to be sentenced on May 12, 2008. Appellant is attempting to appeal from a nonappealable order. (See Pen. Code, 1237.) The denial of a request for certificate of probable cause is not an appealable order and this court does not have jurisdiction to review his request to withdraw his guilty plea pending final judgment.

An insurance policy issued by defendant Evanston Insurance Company to plaintiff Intra-American Foundation & Drilling Company, Inc., a construction company specializing in deep foundations, obligated defendant to defend and indemnify plaintiff against property damage claims. When a general contractor sued plaintiff, plaintiff sought defense and indemnification from defendant under the insurance policy. Defendant denied any duty to defend. Plaintiff defended itself and settled with the general contractor.

Plaintiff subsequently brought this action against defendant for breach of contract and bad faith. In a general verdict, the jury awarded plaintiff damages of $462,000. We reverse. The insurance policy contained an endorsement excluding coverage for breach of contract claims. The underlying lawsuit brought by the general contractor created not even a potential for covered claims under the insurance policy. Any property damage allegations raised in or suggested by the lawsuit involved harm to the property of third parties (not the general contractor) for which plaintiff was contractually obliged to indemnify the general contractor, coverage for which was expressly excluded by the endorsement to the insurance policy.

Defendant Alejandro Garibay challenges his conviction for possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1))[1] and possessing ammunition as a prohibited person ( 12316, subd. (b)(1).) Defendants sole contention on appeal is the court erroneously denied his motion to dismiss his case pursuant to the two-dismissal rule set forth in section 1387, subdivision (a). Subject to various exceptions, section 1387, subdivision (a) provides that [a]n order terminating an action pursuant to this chapter [section 1381 et seq.], or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony or if it is a misdemeanor charged together with a felony and the action has been previously terminated pursuant to this chapter [section 1381 et seq.], or Section 859b, 861, 871, or 995.
Given the inadequate record, we are unable to assess defendants claim of error. Accordingly, Court affirm the judgment.