CA Unpub Decisions

Janet G. (mother) and Guillermo G. (father) separately petition for extraordinary relief from a juvenile court order terminating reunification services and scheduling a permanency planning hearing for their child, Jorge. (Welf. & Inst. Code, 366.26; Cal. Rules of Court, rule 8.452.) Both parents challenge the juvenile courts finding that they failed to make substantive progress in their reunification plans. They contend the child should have been returned to their custody under a family maintenance plan because they ameliorated . . . serious problems that led to Jorges removal from the home. Real party in interest Sonoma County Human Services Department opposes the petitions. Court deny the petitions for extraordinary relief on the merits.

Appellant Cesar O. A. Gonzalez appeals his conviction by jury of forcible rape (Pen. Code, 261, subd. (a)(2)),[1]kidnapping to commit rape ( 209, subd. (b)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), assault with intent to commit rape ( 261, subd. (a)(2)) and false imprisonment by violence ( 236). The jury found true allegations that appellant kidnapped the victim and the movement substantially increased the risk of harm ( 667.61, subds. (a) & (d)), and that appellant personally used a dangerous and deadly weapon ( 667.61, subd. (b), 12022.3, subd. (a) & 12022, subd. (b)(1)). The trial court sentenced appellant to 25 years to life in state prison for the rape, and stayed midterm sentences of 7, 3, 4, and 2 years, respectively, for the kidnapping, assault with a deadly weapon, assault with intent to commit rape and false imprisonment. ( 654.) The court ordered appellant to pay $550 for the cost of a medical examination. ( 1203.1h.) Appellant contends that erroneous admission of evidence of a subsequent sex offense, opinion testimony by a nurse and prosecutorial misconduct all combined to undermine the fairness of his trial with respect to the rape charge. He contends that he was prejudiced because the victim gave conflicting testimony about sexual penetration and the prosecution would have had difficulty proving rape in the absence of the cumulative errors. He also challenges the imposition of costs of the medical examination because there was no finding of ability to pay. Court strike the order imposing costs of the medical examination and otherwise affirm.

The Department of Motor Vehicles (DMV) suspended the driver's license of Mark Francis Sullivan, Jr. following his arrest for driving with a blood alcohol concentration (BAC) of .08 percent or more. (Veh. Code, 13353.2, subd. (a)(1).) He appeals from the denial of his petition for a writ of mandate to vacate the suspension. Court affirm.

Kevin Bony Mam appeals from the judgment following his conviction by jury of first degree murder. (Pen. Code, 187, 189.)[1] The jury found true allegations that he personally discharged a firearm causing death ( 12022.53, subds. (b)-(d)), and that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang ( 186.22, subd. (b)(1)(A)). The court sentenced appellant to 60 years to life, consisting of 25 years to life for the murder, 25 years for personally discharging a firearm and causing death, and 10 years for the gang enhancement. Appellant claims instructional error, challenges the sufficiency of the evidence to support the gang enhancement, and contends that he was denied effective assistance of counsel. Court affirm.

Appellant Robert Eugene Griswold appeals from the judgment entered following a plea of no contest to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and his admission that he had served a prior prison term. (Pen. Code, 667.5, subd. (a).) After he entered his plea, appellant was released on his own recognizance but failed to appear at his sentencing hearing. The trial court withdrew its approval of the plea agreement and sentenced him to state prison. Appellant contends, and the People agree, that Court should remand the case to allow him an opportunity to withdraw his plea. Reversed.

While working for defendant and respondent Target Corporation (Target), plaintiff and appellant Martha Hernandez (plaintiff) injured her knee. When her notices to Target of her injury and work restrictions did not result in the accommodations to which she believed she was entitled, plaintiff filed a workers compensation claim and was placed in a specially created, light duty assignment in which she worked sitting down. That assignment ended, however, when plaintiffs workers compensation claim was denied by Targets carrier. Target then informed plaintiff that there were no regular job positions available in which her work restrictions could be accommodated, and placed her on an unpaid medical leave of absence.
Plaintiff filed a charge with the Department of Fair Employment and Housing (DFEH), alleging disability discrimination, failure to accommodate, and retaliation under the Fair Employment and Housing Act (FEHA). After receiving a right to sue letter from the DFEH, plaintiff sued Target and two of her supervisors[1]asserting various causes of action, including five under the FEHA. In response to defendants motion, the trial court summarily adjudicated each of plaintiffs causes of action and entered judgment in favor of defendants.
On appeal, plaintiff challenges the trial courts adjudication of eight of her nine causes of action and her punitive damage claims,[2]as well as certain evidentiary rulings made by the trial court in connection with defendants motion for summary judgment. Court hold that the trial court did not err in making the evidentiary rulings challenged by plaintiff and that plaintiff failed to exhaust her administrative remedies in connection with certain of her claims under the FEHA. Court further hold that the trial court properly summarily adjudicated each of plaintiffs causes of action, and affirm the judgment.

Defendant and appellant John Diggs (defendant) was arrested for and charged with possession of marijuana for sale. Appearing in propria persona, he filed a motion to suppress evidence that the trial court denied after hearing testimony from the investigating officer. Defendant subsequently pleaded nolo contendere to the charged crime.
On appeal, defendant contends that because the arresting officer lacked the requisite reasonable suspicion to detain him, the trial court should have granted his suppression motion and dismissed the charge against him for lack of evidence. We hold that defendant forfeited the issue of the validity of his initial detention by failing to raise it in the trial court and that, in any event, there is substantial evidence in the record to support a finding that the investigating officer had the requisite reasonable suspicion to detain defendant. The trial court therefore properly denied his motion to suppress. Defendant and the prosecution disagree over various fines, penalties, assessments, and surcharges. Based on our recent decision in People v. McCoy (2007) 156 Cal.App.4th 1246, Court also hold that the trial courts minute order reflecting defendants sentence should be modified to provide that defendant is required to pay the fines, penalty assessments, and surcharges specified below.

This appeal concerns fees for the services of a court-appointed referee, Jason Engel. Mr. Engel appeals from two orders. First, Mr. Engel appeals from a January 29, 2007 order vacating as void a September 25, 2002 referees fee award. Second, Mr. Engel appeals from a March 9, 2007 order denying his motion for an allowance of referees fees. Court conclude the trial court lacked jurisdiction to act following the June 3, 2002 dismissal of this action. Court affirm the January 29 and March 9, 2007 orders on grounds the trial court had no jurisdiction to issue any order concerning referees fees.

Marcos A. Contreras (Contreras)[1]appeals from the judgment entered following a jury trial which resulted in his conviction of first degree murder (Pen. Code, 187, subd. (a)),[2]and five counts of attempted, willful, deliberate premeditated murder ( 664 & 187, subd. (a)), during each of which a principal personally and intentionally used and discharged a firearm proximately causing death ( 12022.53, subds. (b), (c), (d) & (e)(1)), and the finding that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members ( 186.22, subd. (b)(1)(C)). The trial court sentenced Contreras to 75 years to life in prison. Court affirm the judgment.

Defendant, Daniel Robert Hansen, a contractor, appeals from a reconsideration order which ordered arbitration of six causes of action but denied the request to arbitrate all five remaining causes of action brought by plaintiff, Brian Kramer. Plaintiff filed suit when he was dissatisfied with the renovation of his home. Defendant has failed to provide a reporters transcript of the relevant proceedings or provide a suitable substitute. The order denying the petition to compel arbitration is affirmed.

The District Attorney of Los Angeles County filed a petition alleging that defendant and appellant Thomas B. (Thomas) came within the provisions of Welfare and Institutions Code section 602 because he committed a second degree robbery (Pen. Code, 211). The juvenile court found the allegation to be true and declared the offense to be a felony. The juvenile court continued Thomas on probation and ordered him suitably placed. The juvenile court set the maximum period of physical confinement at five years and awarded Thomas 19 days of predisposition custody credit.
On appeal, Thomas contends that there is insufficient evidence to support the juvenile courts finding that he committed a second degree robbery and that the juvenile court erred in awarding him 19 days of predisposition custody credit rather than 27 days. Court affirm the juvenile courts finding that Thomas committed a second degree robbery and direct the juvenile court to amend its wardship order to reflect 27 days of predisposition custody credit.

On September 28, 2006, an information was filed charging appellant Trevoy Emil Edwards in count 1 with possession of a firearm as a felon (Pen. Code, 12021, subd. (a)(1)), in count 2 with possession of ammunition as a felon (Pen. Code, 12316, subd. (b)(1)), and in count 3 with giving false information to a peace officer (Pen. Code, 148.9, subd. (a)). The information also alleged that appellant had a prior conviction for a serious or violent felony or juvenile adjudication ( 1170.12, subds. (a) (d), 667, subds. (b) (i)) and six prior convictions ( 667.5, subd. (b)). Appellant pled not guilty to all counts and waived his right to a jury trial on the prior conviction allegations. On February 23, 2007, a jury found appellant guilty on all counts. Appellant waived his right to a bench trial on the prior conviction allegations and admitted the allegations. On April 25, 2007, the trial court sentenced appellant to a total term of seven years in prison.

Plaintiffs[1]appeal from a judgment entered after a demurrer to a creditors claim action against defendant, Michael D. Miller, the personal representative of the Estate of Jay C. Miller (the estate) was sustained without leave to amend. The decedent, Jay C. Miller, is defendants father. The demurrer was sustained on the ground the action against the estate was time barred under Code of Civil Procedure section 366.2 because the complaint was filed on February 27, 2007, more than one year after the decedents death, on May 24, 2005. Court affirm.

Destiny J. (mother) appeals from an order of the juvenile court denying her petition for modification, terminating her parental rights, and establishing adoption as the permanent plan for her son, David . (Welf. & Inst. Code, 366.26, 388.) Court affirm.