CA Unpub Decisions

Defendant, Alfredo G. Manzano, appeals from his convictions for: kidnapping to commit rape (Pen. Code,[1] 209, subd. (b)(1)); two counts of sexual penetration by a foreign object ( 289, subd. (a)(1)); assault with intent to commit rape or sexual penetration by a foreign object ( 220); second degree robbery ( 211); and making criminal threats. ( 422.) The jury also found that the kidnapping to commit rape, assault with intent to commit rape, the second degree robbery, and the criminal threats involved a threat of great bodily harm. (Cal. Rules of Court, rule 4.421(a)(1).) The jurors further found that the assault with intent to commit rape involved other acts disclosing a high degree of cruelty. (Cal. Rules of Court, rule 4.421 (a)(1).) Defendant argues the trial court improperly admitted deoxyribonucleic acid evidence; failed to instruct the jury on the lesser included offense of simple assault and unanimity; and incorrectly imposed a full consecutive sentence pursuant to section 667.6, subdivision (d). The Attorney General argues that additional state court construction penalties and state court surcharges should have been imposed. Court affirm with modifications.

Plaintiff Lori Goodfield filed a complaint for damages against defendant Sugar Bowl Corporation (Sugar Bowl), a ski resort, on whose premises she was injured in a collision with another skier. Plaintiff alleged that the resorts negligent design and construction were partly responsible for her injuries. Defendant moved for summary judgment. Plaintiff (then in propria persona) filed no opposition. The trial court granted the motion and entered judgment for defendant. Plaintiff appeals. Court affirm.

The trial court ordered appellant Jerry Riley (husband) to pay Kellie Thompson Adair (wife) $762 per month for guideline child support for their two children, $469 per month for their daycare costs, and $60 per month for their lunches, for a total sum of $1,291 per month. Husband did not appeal the order, but subsequently filed a motion for modification of the order, contending it was unjust and inappropriate because it left him with a negative balance after paying his rent and income tax obligation, that it was based on numerous errors in computation, and that the parties circumstances had changed because he was no longer earning overtime wages and wife no longer needed daycare. After hearing husbands motion on February 5, 2007, the trial court refigured child support based on husband having the children 28 percent of the time, resulting in a reduction of guideline support from $762 to $658 per month, but otherwise continued the existing order. The trial court ordered husband to pay $3,500 in attorney fees to wife. Husband appeals the trial courts order of February 5, 2007.
On appeal, husband claims (1) the trial court abused its discretion in ordering him to pay daycare costs, (2) the reduced order of child support still leaves him with so little disposable income as to be unjust and inappropriate, (3) the trial court erred by failing to deduct his disability insurance expense, his health insurance expense, and by failing to give him a full hardship credit for the child living exclusively with him, and (4) the trial court abused its discretion in ordering him to pay attorney fees when he brought the motion for modification in good faith. Court affirm the order.

2006, Joseph Fletcher entered a negotiated guilty plea to one count of felony vandalism (Pen. Code, 594, subds. (a), (b)(1)) in superior court case No. SCE262663. The trial court placed Fletcher on formal probation for a term of three years and continued his probation for an earlier drug possession offense in superior court case No. SCE256214. In 2007, Fletcher admitted that he had violated his probation. The court formally revoked probation and sentenced Fletcher to a prison term of three years. The court also sentenced Fletcher to a consecutive term of eight months (one third the middle term) for possession of a controlled substance (Health & Saf. Code, 11377, subd. (a)). A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Competent counsel has represented Fletcher on this appeal. The judgment is affirmed.

R.A. appeals a juvenile court judgment terminating his parental rights to his minor daughters T.S. and F.S. (together the minors) under Welfare and Institutions Code section 366.26.[1] R.A. contends: (1) his due process rights were violated when the court did not obtain a timely paternity test or give him proper notice regarding paternity; (2) the court erroneously terminated his parental rights based on these due process violations; (3) the evidence did not support the court's finding the minors were adoptable; and (4) the court erred by finding the sibling relationship exception to adoption did not apply to preclude terminating his parental rights. Court affirm the judgment.

On August 18, 2004, appellant, Estevan Reyna, pleaded guilty to one count each of possession of methamphetamine (Health & Saf. Code, 11377) and misdemeanor being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a)) in Tulare County Superior Court case No. VCF130264 (case No. VCF130264). On September 13, 2004, the trial court granted appellant deferred entry of judgment (DEJ) (Pen. Code, 1000), which included required drug education and testing, a $210 diversion restitution fee, a $150 administrative fee, and an unspecified fee of $50 per month. The trial court is directed to prepare and distribute as appropriate an amended abstract of judgment reflecting the above modifications as well as reflecting that appellant was awarded 134 and 133 days of custody credits in case Nos. VCF130264 and VCF143290, respectively. The amended abstract of judgment shall further separately list, with statutory basis, all fines, fees and penalties imposed.

Defendant Ricky Lynn Newton was convicted of various methamphetamine related crimes. On appeal, his sole contention is that CALCRIM No. 220, the reasonable doubt instruction, is ambiguous and constitutionally deficient. Court affirm.

Defendant appeals from a final judgment of conviction after a jury trial. Defendant was convicted of one count of possession of cocaine (Health & Saf. Code, 11350, subd. (a)), with two prior strike convictions (Pen. Code, 667, subds. (b)-(i), 1170.12) and five prior prison term enhancements (Pen. Code, 667.5, subd. (b)). He was sentenced to a term of 25 years to life, with five consecutive one year terms for the prior prison term enhancements. He challenges the judgment on two grounds: (1) his pretrial motion to suppress evidence was improperly denied and (2) the trial court abused its discretion in declining to strike one or both of the prior strike convictions, because it failed to consider all the factors relevant to that decision. Court affirm.

Appellant, Karl Rountree, filed a disability discrimination complaint against respondent, Chase, Inc., alleging that Chase failed to accommodate him in violation of the Unruh Civil Rights Act (Civ. Code, 51, et seq.) and the Americans with Disabilities Act (42 U.S.C. 12101, et seq.) According to Rountree, architectural barriers in the public restroom at Chases gas station prevented the mirror and the sink from being wheelchair accessible. Rountree did not participate in a scheduled arbitration hearing and thereafter voluntarily dismissed his complaint. Chase then filed the underlying complaint for malicious prosecution against Rountree and appellant Morse Mehrban, Rountrees counsel in the former action. Chase alleged that Rountrees lawsuit was initiated without probable cause and with a malicious and despicable intent. According to Chase, the complaint was simply part of an ongoing predatory scheme by [appellants] to extort money from California small businesses for their own personal gain by abusing a statutory scheme that is designed for corrective action not monetary rewards. The order denying appellants motion to strike the complaint and imposing sanctions is reversed with directions to the superior court to enter a new order granting the Code of Civil Procedure section 425.16 motion to strike. Appellants motion for sanctions against respondent on appeal is denied. Costs on appeal are awarded to appellants.

Pursuant to a negotiated disposition, appellant pleaded no contest to one count of lewd act on a child and one count of oral copulation of a child. (Pen. Code, 288, subd. (a), 288a, subd. (c)(1).) The trial court sentenced appellant to a state prison term of 12 years. Appellant contends, "Because the trial court failed to exercise its discretion in sentencing appellant to a full term consecutive sentence the case must be reversed and remanded for re-sentencing." Court agree.

Pursuant to a negotiated disposition, defendant Jay Botelho pleaded no contest to one count of inflicting corporal injury upon a child (Pen. Code, 273d, subd. (a), count one); assault with force likely to produce great bodily injury ( 245, subd. (a)(1),[1] count two); and one count of inflicting corporal injury on a cohabitant ( 273.5, subd. (a), count three). With respect to count one, defendant admitted that he personally inflicted great bodily injury on the victim. ( 12022.7, subd. (a).) Further, defendant admitted that he had a prior conviction for a serious or violent felony within the meaning of sections 667, subdivision (b) through (i) and 1170.12, and had served a prior prison term within the meaning of section 667.5, subdivision (b). In exchange for his no contest pleas, defendant was promised his sentence would be 16 years in state prison (top/bottom). When the court sentenced defendant on April 27, 2007, the court imposed the negotiated sentence of 16 years consisting of the following: the mid-term of four years on count one, doubled pursuant to sections 667, subdivision (b) through (i) and 1170.12, plus three years for the personal infliction of great bodily injury enhancement for a total of 11 years; two concurrent midterms of three years, doubled because of the strike prior for count two and three; plus a consecutive term of five years for the prior serious or violent felony conviction. ( 667, subd. (a).) Defendant filed a timely notice of appeal. The judgment is affirmed.

Following a jury trial in three separate cases which were consolidated for trial, defendant was convicted of two counts of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), carrying a concealed dirk or dagger (Pen. Code, 12020, subd. (a)), along with two misdemeanor offenses: unlawful display of evidence of registration to a peace officer (Veh. Code, 4462.5), and possession of an unlawful smoking device (Health & Saf. Code, 11364). In another case separately and subsequently tried before a jury he was found guilty of burglary (Pen. Code, 459), and grand theft (Pen. Code, 487, subd. (a)). The jury in one proceeding and the trial court in another found that he sustained multiple prior felony convictions within the meaning of sections 1203 and 1170.12, and committed offenses while released on bail ( 12022.1). In a single sentencing proceeding he was sentenced under the three strikes law to an aggregate term of 39 years and 8 months to life in state prison. Defendant was also ordered to pay multiple restitution fines, parole revocation fines and court security fees ( 1202.4, 1202.45, 1465.8.). The judgment is affirmed.

Plaintiffs Tom and Alayna Gray timely appeal from a judgment entered after the trial court granted summary judgment to defendants Mon Van Moving Services (Mon Van), Premier Van Lines, Inc. (Premier), and Gary Grubb.[1] On appeal, plaintiffs make four arguments: (1) their contract with defendant Mon Van, which contains a provision requiring that claims for loss or damage be submitted within nine months, is unconscionable and thus unenforceable; (2) they substantially complied with this contract provision; (3) defendants improperly asserted the nine-month limitations period as a basis for summary judgment because this affirmative defense was not raised by the pleadings; and (4) defendants failed to submit evidence that they were carriers governed by the nine month limitations period. Court conclude that none of these arguments has merit, and affirm.

Appellant Terrell J. was declared a ward of the juvenile court and was placed on probation after he admitted possession of a concealable firearm by a minor in violation of Penal Code section 12101, subdivision (a)(1). He contends the court should have granted his motion to suppress evidence of the firearm as having been seized during an unlawful patdown search. Court agree and reverse the judgment.