CA Unpub Decisions

Seventeen-year-old Marcos H. entered a negotiated admission to one count of smuggling aliens into the country (8 U.S.C 1324(a)(2)(B)(iii)). The juvenile court declared Marcos a ward (Welf. & Inst. Code, 602), and placed him on probation, conditioned on him spending 73 days in juvenile hall. Marcos appeals, contending the juvenile court did not have jurisdiction because the petition filed against him alleged he violated a federal statute. Court affirm.

On August 12, 2006, and again on August 21, Rocky Lee Griffin willfully and maliciously reported a bomb threat to police, knowing that the report was false. On August 23 he falsely reported an emergency to police, knowing that the report was false. Griffin used a cellular telephone belonging to Sandra Schoenhardt to make all three reports. Schoenhardt told the police that her cellular telephone had been stolen before July 21. Later, she said that she had let her friend, Sara Cool, use the telephone and Cool then gave it to her stepfather. Cool told the police that she gave the telephone to "Richard Thompson," which was determined to be Griffin's alias. Griffin claimed that his daughter had given him permission to use the telephone. The probation officer sent a restitution letter to Schoenhardt, but received no reply. The judgment is modified by striking the $307.05 restitution order. As so modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.

Michael Gilbert Wilson entered a negotiated guilty plea to unlawfully taking and driving a vehicle (Veh. Code, 10851, subd. (a)), and admitted he had suffered a prior felony vehicle theft conviction that qualified as a sentencing enhancement under Penal Code section 666.5, subdivision (a). Pursuant to the plea agreement, the trial court dismissed one count of receiving a stolen vehicle ( 496, subd. (d)) and one count of providing false information to a police officer ( 31), and struck four prior prison term allegations. The trial court sentenced Wilson to four years in prison, as stipulated in the plea agreement. The judgment is affirmed.

A modification decision.

Appellant, Joe Loredo, and four codefendants were charged in an information filed on February 7, 2006 with a series of counts and enhancements related to the kidnapping, assault, robbery, mayhem, and further kidnapping of Jason H. Appellant was charged as follows: count one, conspiracy to kidnap for robbery (Pen. Code, 182, subd. (a)(1) and 209, subd. (b)(1))[1]; count two, conspiracy to kidnap ( 182, subd. (a)(1) & 207, subd. (a)); count three, kidnapping for robbery ( 209, subd. (b)(1)); count four, kidnapping ( 207, subd. (a)); count five, mayhem ( 203); count 6, second degree robbery ( 211); count seven, assault with a firearm ( 245, subd. (a)(2)); count eight, assault with force likely to cause great bodily injury ( 245, subd. (a)(1)), count nine, false imprisonment by violence ( 236); count ten, making criminal threats ( 422); and count eleven, possession of a firearm by a felon ( 12021, subd. (a)(1)). Count seven alleged that appellant personally used a firearm ( 12022.5, subd. (a)). Counts one through ten alleged appellant had served three prior prison terms ( 667.5, subd. (b)) and used a firearm during the commission of the offenses ( 12022.53, subd. (b)).
Appellant contends the trial court erred in failing to advise him of the parole consequences of his plea, not appointing substitute counsel to investigate a motion to withdraw his plea, imposing an unauthorized sentence because conspiracy is not an enumerated trigger offense under section 12022.53, subdivision (a), and imposing a sentence in violation of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). The judgment is affirmed.

On September 21, 2006, a first amended information was filed in the Superior Court of Fresno County charging appellant James Curtis Wilburn with counts I through IV, second degree robbery (Pen. Code,[1] 211), and count V, attempted second degree robbery ( 664/211). As to counts I through IV, it was alleged a principal was armed with a firearm ( 12022, subd. (a)(1)), and as to count V, that appellant personally used a firearm ( 12022.53, subd. (b)). Appellant pleaded not guilty and denied the special allegations. Thereafter, appellants jury trial began. On October 5, 2005, appellant moved to dismiss the firearm enhancements charged as to counts I, IV, and V. On October 6, 2006, the court granted the motion only as to count I. On October 10, 2006, appellant was convicted as charged in counts I through V, with the firearm enhancements found true as to counts II through V. The judgment is affirmed.

On January 26, 2006, appellant step-grandparents Andy and Rose Ann Erberich filed a petition for appointment of temporary guardian of the person of minor. The judgment (order appointing guardian of minor filed February 23, 2007) is affirmed in all respects provided, however, that the matter is remanded to the trial court for the sole purpose of enabling the trial court to take such measures as necessary and appropriate to achieve compliance with Family Code section 3048, subdivision (a)(3), (4), (5).

Raymond R. appeals from 2007 orders terminating his parental rights (Welf. & Inst. Code, 366.26) to his three year old daughter and one year old son.[1] He seeks reversal on three grounds. One, he contends the court erred in 2006 when it determined that the Indian Child Welfare Act (ICWA; 25 U.S.C. 1901, et seq.) did not apply. Two, he argues the court should have selected legal guardianship as the childrens permanent plan due to their relative caregivers preference for legal guardianship over adoption. Three, appellant urges evidence of a positive relationship between the parents and the children added to the weight the court should have placed in favor of legal guardianship. On review, Court affirm.

N.I. seeks extraordinary relief from the order of the juvenile court terminating reunification services and setting a permanent plan selection hearing in the dependency proceedings regarding her son, Anthony I. She claims there is insufficient evidence to support the courts findings that she received reasonable reunification services and that returning Anthony home would create a risk of detriment to him. Court find no error and deny relief.

Plaintiffs Service Employees International Union, Local 715 (SEIU) and Shara S*r brought a petition for writ of administrative mandate following S*s termination as an employee of the City of Mountain View (City). The trial court did not set aside the termination, but ordered defendants City and Kevin Duggan, the City manager, to restore back pay to S*r from November 3, 2004 to August 30, 2005, on the ground that the predisciplinary or Skelly hearing[1] violated due process. On appeal, defendants contend that there was no violation of due process. Following supplemental briefing, we conclude that S*s failure to exhaust her administrative remedies deprived the trial court of jurisdiction to decide this issue. Court therefore reverse the judgment. Plaintiffs have filed a cross-appeal in which they argue that there was insufficient evidence to support the trial courts findings regarding job related misconduct. Court find no merit to this argument.

In this case, the trial court granted a special motion to strike plaintiff's complaint as a strategic lawsuit against public participation (SLAPP suit). This appeal follows from the entry of judgment against plaintiff Robert Mendiola (hereafter Mendiola) on his complaint against defendants Patrick Michael Pekin, the law offices of P. Michael Pekin, and Amanda Hernandez (hereafter Defendants). The granting of an anti-SLAPP motion to strike is a proper subject for appeal. (Code Civ. Proc., 425.16, subd. (j); see also Kyle v. Carmon (1999) 71 Cal.App.4th 901, 906.) As Court explain below, Court conclude that the trial court acted properly in granting Defendants' motion under the anti SLAPP statute as to some of Mendiola's causes of action, but not as to one of his causes of action.

Appellant Salvador Jiminez, Jr. was found guilty, following a jury trial, of special circumstance murder and burglary. On appeal, he contends: (1) the trial court erred in failing to instruct the jury sua sponte with CALJIC Nos. 2.71 and 2.71.7, which advise the jury to view with caution statements attributed to the defendant; (2) the trial court erred when it failed to instruct sua sponte with CALJIC Nos. 3.10, 3.14, 3.18 and 3.19, regarding accomplice distrust, where key witnesses were arguably accomplices; (3) the trial courts determination that the appropriate punishment was life in prison without the possibility of parole, rather than 25 years to life in prison, was made under a mistaken understanding of the applicable statute, Penal Code section 190.5, subdivision (b); and (4) in sentencing appellant, the presentence report failed to evaluate the proper penalty, the trial court failed to consider relevant mitigating factors, and defense counsel was ineffective for failing to point out the courts sentencing errors. Court affirm the judgment.

Miguel Jara, Sr., (hereafter Jara, Sr.), a minority shareholder of Suprema Meats, Inc., a California corporation (hereafter Suprema), brought suit against the corporation and its two other shareholders, his son, Miguel Jara, Jr., (hereafter Jara, Jr.) and Gonzalo Rodriguez (hereafter Rodriguez). Jara, Sr.s central allegation was that Jara, Jr., and Rodriguez had breached their fiduciary duty to him by taking excessive compensation from the corporation, thereby reducing its assets and, accordingly, reducing his share of corporate profits. Judgment was entered in favor of the respondents. Jara, Sr., appeals from the judgment. Court affirm.

Appellant I. B. (I. B.), a minor, appeals from the jurisdictional and dispositional orders in which the court sustained three counts of second degree robbery and one count of making a criminal threat. He argues that the court erred in denying his motion to suppress evidence of the victims identification of him. He also maintains that there was no substantial evidence supporting the finding of making a criminal threat. Court affirm.