CA Unpub Decisions

Anna K. Herzog (Herzog) appeals from a judgment confirming an arbitration award against her and in favor of respondent Grubb & Ellis Company (Grubb & Ellis). The arbitration agreement required the arbitrator to apply applicable law, and then provided that if the arbitrator failed to do so, a party could appeal to the trial court. According to Herzog, the arbitrator did not apply applicable law, so the trial court erred when it denied her motion to vacate the award and granted Grubb & Elliss petition to confirm. Court find no error and affirm.

Jaime Gonzalez (defendant) was convicted by jury of first degree murder (Pen. Code, 187, subd. (a)),[1]with findings of the personal discharge of a firearm causing death ( 12022.53, subd. (d)) and that the murder was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The trial court sentenced him to a term of 25 years to life in state prison for the murder, enhanced by a consecutive term of 25 years to life for the discharge of a firearm and a consecutive term of 10 years as the crime was committed for the benefit of a criminal street gang. Court affirm the judgment.

Defendant Ryan J. Fromuth appeals from a judgment entered after he pled no contest to count 1, possession of marijuana for sale in violation of Health and Safety Code section 11359[1]and count 2, sale or transportation of marijuana in violation of section 11360, subdivision (a). The appeal is dismissed. Defendant contends that: [his] suspended prison sentence must be reduced to the midterm of three years because of Cunningham-Blakely error, in violation of his rights to a jury trial and due process under the Sixth and Fourteenth Amendments. Court Affirm.

A father appeals from an order terminating his parental rights. He asserts the juvenile court erred by not placing his son with a paternal aunt and by failing to ensure that proper notice of this proceeding was provided under the Indian Child Welfare Act, 25 U.S.C. section 1901, et seq. (ICWA). Assuming for arguments sake that the father has standing to challenge the relative placement issue, his substantive argument lacks merit. However, the notice provided was inadequate under the ICWA. Court therefore reverse and remand the action for the limited purpose of effectuating proper notice.

A modification decision.

Eric Orozco, also known as Carlos Rodriguez and David Rodriguez, appeals from three orders denying petitions to dismiss trial court case Nos. 95M03740, TA043519 and TA053155 pursuant to Penal Code sections 1203.4 and 1203.4a.[1] For the reasons discussed herein, we conclude that we lack jurisdiction to consider case Nos. 95M03740 and TA043519 and transfer those matters to the appellate division of the superior court (appellate division) for resolution. The order pertaining to case No. TA053155 is affirmed.

Jack M. Stinson (defendant) appeals from the judgment entered following a jury trial in which he was convicted of a petty theft with a prior conviction (Pen. Code, 666; count 1),[1]and two counts of second degree commercial burglary ( 459; counts 2 & 3), with a trial court finding that he had a prior conviction of a serious felony that required sentencing pursuant to the three strikes law ( 667, subds. (b)-(i); 1170.12).
He raises four sentencing contentions, as follows: (1) the trial court committed Cunningham error (Cunningham v. California (2007) 549 U.S. ___ 127 S.Ct. 856] (Cunningham)); (2) applying the provisions in Senate Bill No. 40 to him at sentencing constituted the application of an ex post facto law; (3) apart from any constitutional error, the trial court abused its discretion when it imposed an upper term for count 1; and (4) the trial court abused its discretion when it failed sua sponte to strike his prior serious felons conviction as authorized by the decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Court affirm the judgment.

Pursuant to a negotiated plea, following a full advisement of rights, appellant George Zanebis pled guilty to the low term of two years for second degree robbery, doubled for one strike, plus one year for a hate crime enhancement under Penal Code section 422.75, subdivision (a). He was sentenced in accordance with the plea. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. He was notified that he could file his own brief and has not done so. He applied for a certificate of probable cause, which was denied. At the preliminary hearing, Vickie M. and her 13-year-old daughter F. testified that appellant walked up to them on the street. Vickie M. and F. both wore outer garments called hijabs. Appellant said he was with some division of the Marines. He ordered Vickie M. and F. to give him all of their property. They refused. Then appellant said he was with the KKK. He threatened to kill Vickie M. if she did not give him all of her property. He picked up a glass bottle of beer from a bucket he was carrying, swung the bottle, and broke it on the ground. He threw part of the bottle at F., striking her at the waist. He called Vickie M. and F. names like mother fuckers, bitch, and niggers. He said something about their being Muslims. He then grabbed boots and two pairs of sunglasses from Fs bag and ran away. The judgment is affirmed.

Appellant Yvonne A. (mother) appeals from a juvenile court order terminating her parental rights to Arturo E. (Arturo), born April 2005. She contends that the juvenile court erred in (1) denying her petition pursuant to Welfare and Institutions Code section 388,[1]and (2) finding that the section 366.26, subdivision (c)(1)(A)[2]exception to termination of parental rights did not apply. Court conclude that the juvenile court did not abuse its discretion in denying mothers section 388 petition. She failed to demonstrate a change of circumstances and that returning Arturo to her care was in his best interests. Likewise, substantial evidence supports the juvenile courts finding that the contact and benefit exception to the termination of parental rights did not apply.
Accordingly, the juvenile courts orders are affirmed.

Appellant Tricia T. timely appeals from the juvenile courts order denying hearing on her petition under Welfare and Institutions Code section 388 with respect to her children Dorothy T. and Tercel T. A petition was filed on July 5, 2000 alleging juvenile court jurisdiction over the children. On April 8, 2002, pursuant to a mediation agreement, the petition was sustained as amended and family reunification services were ordered. Ultimately, a permanent plan of long term foster care was ordered for both children, and mother was given unmonitored visitation rights. Mother has filed a series of section 388 petitions, all alleging that the children should be returned to her on the basis of the 2002 mediation agreement, and asserting that the children are being abused in their foster placement and desire to live with her. The petition at issue in this appeal makes the same arguments, and was denied without hearing on November 29, 2007, on the grounds that the relief sought would not be in the best interests of the children. Court Affirmed.

Plaintiff Eileen Spencer filed a petition pursuant to the California Public Records Act (Gov. Code, 6250 et seq.; hereafter CPRA) to compel defendant Lassen Municipal Utility District (LMUD) to produce documents. The superior court denied the petition, denied her request for reimbursement of her legal fees, and granted LMUDs motion to reimburse its legal fees on the ground that plaintiff Spencers petition was frivolous. (Gov. Code, 6251, 6258, 6259, subd. (d).) The plaintiff appeals both from the judgment and the order after judgment setting the amount of LMUDs legal fees. We have consolidated the appeals for purposes of briefing and argument. Court affirm the judgment.

While defendant Michael Sargent was serving state prison sentences for drug offenses committed in Yuba County, he was charged in Amador County with both possession of marijuana and a sharp instrument while confined in state prison plus a prior strike conviction and an enhancement for service of a prior prison term. In June 2005, defendant pled guilty to the marijuana possession charge and admitted the prior strike conviction in exchange for a promised aggregate state prison sentence of nine years four months -- four years for the Amador offense, doubled to eight years because of the strike, plus resentencing of 16 months consecutive on the Yuba County sentence he was presently serving. The settlement also provided that the restitution fines (Pen. Code, 1202.4, 1202.45) imposed for both the Amador and Yuba County cases would not exceed a total of $1,800. The appeal is dismissed without prejudice to defendants filing in the trial court a motion for correction of his presentence custody calculations.

Defendant Rodney Allen Graham appeals following his conviction on three counts of receiving stolen property (Pen. Code, 496, subd. (a)) and three misdemeanor counts -- possession of burglary tools ( 466), possession of drug paraphernalia (Health & Saf. Code, 11364, subd. (a)), and unlawful appropriation of lost property ( 484-485). Defendant was charged with an additional count of possessing stolen property but was found not guilty. On appeal, defendant contends the evidence was insufficient to support the three counts of receiving stolen property. Court disagree and shall affirm the judgment.

Defendant Orlando M. Robinson pled no contest to one count of battery (Pen. Code, 243, subd. (d)[1]) and admitted one prior serious felony conviction ( 667, subd. (a)(1)), in exchange for dismissal of three other charges and a maximum prison sentence of eight years. The court sentenced defendant to an aggregate sentence of nine years in state prison: the upper term of four years for the battery, plus a five year enhancement for the prior serious felony conviction. On appeal, defendant contends his sentence constitutes a violation of his plea bargain, and asks that we reduce it to the agreed-upon term of eight years. The People concede the issue. Court agree that defendants sentence violates his plea.