CA Unpub Decisions

In this appeal from a judgment entered upon three separate complaints, counsel for defendant Gibb Joseph Olivarez, Jr., has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. Court have conducted the review requested by counsel, and finding no arguable issues, affirm the judgment.

Appellants Jennifer A. Drinkwater and her husband Robert Drinkwater (appellants) appeal from a judgment entered in favor of respondent Black & Veatch Corporation (respondent), after the trial court granted respondents motion for summary judgment and denied appellants request for leave to amend the complaint against respondent. The motion for summary judgment was based principally on the ground that there was no triable issue of fact as to whether respondent owned, occupied, or controlled any property containing asbestos, a factual element essential to establishing the premises liability cause of action asserted against respondent. Appellants contend on appeal that the complaint also stated a claim for general negligence against respondent, but if a viable negligence claim had not been stated adequately, the trial court abused its discretion in denying appellants motion for leave to amend.
Court disagree with appellants, and affirm the judgment.

Appellant D.B., a juvenile, appeals from a dispositional order entered after his no contest plea in regards to a misdemeanor charge of battery. (Pen. Code, 242, 243, subd. (b).) His counsel raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Court's independent review of the record reveals no arguable issues. Accordingly, this judgment is affirmed.

Arthur K. (Father) petitions to review an order of the Mendocino County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26 to change the permanent plan of his son, B. K. (born July 1993), from one of long term foster care to one of adoption. Father contends that error below in complying with the requirements of the Indian Child Welfare Act (ICWA) requires that we vacate the challenged order. Court disagree and deny Fathers petition on the merits.

A jury convicted Jose Robert Gomez (appellant) of three counts of second degree robbery (Pen. Code, 211) (counts 1-3), attempted second degree robbery ( 664/211) (count 4), first degree burglary ( 459) (count 5), and the unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) (count 6). The jury found true the allegation that in the commission of counts 1, 2, 3, and 4, appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). The jury found true the allegation that the victim was present in the residence during the commission of the burglary in count 5 within the meaning of section 667.5, subdivision (c). The trial court found true the allegations that appellant had suffered three prior strike convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and one prison prior within the meaning of section 667.5, subdivision (b). After denying appellants Romero[3]motion, the trial court sentenced him to a total of 95 years to life in state prison. The sentence consisted of 25 years to life on count 1 and 10 consecutive years for the firearm use in that count, an identical consecutive sentence in count 3, and a consecutive sentence of 25 years to life in count 5. Concurrent sentences of 35 years to life were imposed in count 2 and count 4. The court imposed and stayed a term of 25 years to life in count 6 pursuant to section 654.
Appellant appeals on the grounds that: (1) count 5 and the special finding under section 667.5, subdivision (c) should be reversed because appellants conviction for burglary rests on insufficient evidence; (2) reversal of count 2 is required because the trial court failed to sua sponte instruct the jury that attempted robbery was a lesser included offense of robbery; and (3) the trial court abused its discretion in denying appellants Romero motion. The judgment is affirmed.

Over a period of 16 years, Jobe Salter sustained numerous industrial injuries to his shoulders, elbows, knees and back while working for petitioner, Browning-Ferris Industries (BFI). He filed workers' compensation claims for those injuries. In 1994, the parties stipulated that he had sustained 60 percent permanent disability (PD) from industrial injuries to his back, left shoulder and left knee. BFI paid for 96 percent of this award. Salter continued to do similar work for BFI for about eight more years. He presented two new claims for industrial injuries to his shoulders, elbows, knees and back, but did not seek to reopen the prior cases. The decision of the Board is annulled and the matter remanded with directions to enter a new and different award consistent with this opinion.

Defendant and appellant Shelly Lea Hines appeals from the judgment entered following her guilty plea to the charge of sale or transportation of cocaine base. She contends that, because evidence was obtained in violation of her Fourth Amendment rights, the trial court erred in denying her motion to suppress evidence and, accordingly, she should be allowed to withdraw her plea. Court affirm.

Appellant Michael A. Beltran appeals from a judgment entered after a jury convicted him of count 1, stalking (Pen. Code, 646.9, subd. (a));[1]count 4, vandalism ( 594, subd. (a)); count 5, making a criminal threat ( 422); and a lesser included offense of count 3[2]attempted arson of property ( 455). The trial court sentenced appellant to a total of four years in state prison consisting of the mid-term of two years for count 1 as the base count; consecutive eight months (one-third of the mid-term of 24 months) for count 3; consecutive eight months (one third of the mid-term of 24 months) for count 4; and consecutive eight months (one-third of the mid-term of 24 months) for count 5. The judgment is affirmed.

Defendant, Reginald Howard, appeals from his arson conviction (Pen. Code,[1] 451, subd. (d)) and his admission that he was previously convicted to two serious felonies. ( 667, subds. (a)(1), (b)-(i), 1170.12.) Defendant argues: the trial court improperly excluded impeachment testimony by an experienced arson investigator; the prosecutor improperly elicited inadmissible evidence; lesser included offense instructions on unlawful burning should have been given; and the trial court erroneously failed to strike his prior serious felony convictions.

Alberto Lim Lo (appellant) appeals from the order entered following a jury trial that resulted in his conviction of grand theft by embezzlement in violation of Penal Code section 487, subdivision (a).[1] Appellant was an employee of Inconen Temporary Services (ITS) for five or six years until he was terminated on September 28, 2005. ITS, an employment agency, provided temporary employees to aerospace companies such as Boeing. Appellant was responsible for accounts receivable. He submitted invoices to Boeing and instructed ITSs payroll department to issue checks to its employees provided by ITS to Boeing. From 2004 through 2005, appellant instructed two employees who had received overpayments for travel expenses to submit blank checks to him. One employee submitted three checks for $3,796, $3,817.46, and $2,105.74. Another employee, pursuant to instructions by appellant, sent blank checks to appellant for overpayments on several occasions. It was stipulated at trial that appellant cashed the checks sent to him by the employees. Appellant did not have permission to receive blank checks for travel expense overpayments or cash them.
Appellant was found guilty of grand theft by embezzlement as noted above. Imposition of sentence was suspended and appellant was placed on three years probation with the condition that he spend one year in county jail.
The judgment (order granting probation) is affirmed.

Appellant, Julie G., is the mother of two minor children, namely, Miracle M., born in 2003 and Faith M., born in 2005. Julie G. will hereafter be referred to as Mother in this opinion. The father of the children, Odele M., is not a party in this appeal, but will be referred to hereafter as Father as necessity dictates in the interest of presenting a full and accurate statement of the facts. Mother claims that errors were committed by the trial court in ordering the termination of parental rights. Mothers claim of errors centers on the alleged failure of the Department of Children and Family Services (DCFS) to give proper notices pursuant to the Indian Child Welfare Act, hereafter referred to as ICWA. For the reasons hereafter given, the order terminating parental rights over Miracle M. is affirmed, but the order pertaining to Faith M. is reversed and remanded for further proceedings in accordance with the views expressed in this opinion.

A modification decision.

As part of a negotiated plea agreement, defendant Joseph Brennan pled no contest to maintaining a place for use or distribution of controlled substances in violation of Health and Safety Code section 11366.5. The trial court suspended imposition of sentence and placed defendant on three years probation, ordering him to serve 269 days on electric home monitoring and pay specified fees and fines. On appeal, defendant contends that a warrantless search of his house violated his rights under the Fourth Amendment and, as a consequence, the trial courts denial of his motion to suppress evidence ultimately obtained as a result of that search was error. Court reverse the judgment.

This case involves the aftermath of a high profile whistleblowing. Steve Rigg and his wife, Judy, were correctional officers at Corcoran State Prison. In 1994, Steve engaged in whistleblowing activities with respect to conduct at the prison. The Riggs were transferred to positions at High Desert State Prison, but left work on sick leave and eventually received disability retirement. They allege their health problems and retirement were due to continuous harassment and retaliation because of Steves whistleblowing. This appeal is the latest chapter in their attempt to collect damages.
The Riggs appeal. They contend they stated valid causes of action for failure to accommodate and whistleblower retaliation. They contend it was not necessary to file a FEHA complaint and collateral estoppel does not bar the retaliation claim. Corut find the trial court ruled properly on the States motion for summary judgment and affirm.