CA Unpub Decisions

Raymond Baldonado Chavez appeals a judgment, following a jury trial, which orders him recommitted to the California Department of Mental Health (CDMH) for treatment as a sexually violent predator (SVP). (Welf. & Inst. Code, 6600 et seq.) We conclude that: 1) substantial evidence supports the findings that Chavez is an SVP who is likely to engage in sexually violent conduct if released and 2) the SVP Act does not violate the ex post facto or the equal protection clauses of the United States Constitution. Court affirm.

On April 25, 2006, defendant Phrasay Bee Sayanath burglarized the apartment of Pisit Teeyahirunwatana (Teeyahirunwatana) and his girlfriend, Sujitra Fuhtrakoon (Fuhtrakoon). Following defendants arrest, he was charged with, and pled no contest to, first degree residential burglary[1](Pen. Code, 459[2]). Prior to entering his plea, defendant was advised and understood that he might be required to pay his victims restitution for any losses or damages they suffered. At the time of sentencing,[3]the trial court ordered defendant to pay his victims restitution in an amount to be determined later. The court subsequently held a restitution hearing, after which it ordered defendant to pay Teeyahirunwatana and Fuhtrakoon $15,000 in restitution ( 1202.4, subd. (f)).
Defendants challenge on appeal is limited to the amount of the restitution award. Specifically, he contends that the amount of victim restitution is not supported by the evidence and consequently the award constitutes an abuse of discretion. Court disagree and affirm.

Henry Barrios sued Eileen Moore to recover damages allegedly caused by a car accident. The jury returned a verdict in favor of Moore, but the trial court granted Barrios motion for new trial on the ground of insufficiency of the evidence. Moore appeals, and Court affirm.

Appellant Dynasty Dynamics, Inc. (Dynasty Dynamics), appeals from a judgment upon special verdicts in favor of respondent Bola Adebiyi, specifically enforcing a real property purchase agreement and awarding damages for fraud.[1] Appellant contends there was no evidence of a writing, signed by officers of Dynasty Dynamics or by an agent authorized to sign on the corporations behalf, sufficient to satisfy the statute of frauds. Appellant also contends the trial court erred in refusing to instruct the jury on the equal dignities rule of the statute of frauds, which requires an agents authorization to be in writing. Finally, appellant contends that the evidence of ostensible agency and ratification was insufficient to overcome the equal dignities rule, and that the evidence of ostensible agency was insufficient to impose liability on appellant for the fraud of an ostensible agent.
As appellant has not provided a record adequate to review the issues regarding contract formation and the statute of frauds, we reject appellants contentions with regard to them. As Court conclude substantial evidence supports the jurys imposition of vicarious liability on appellant for the fraud of its ostensible agent, Corut also reject appellants final contention, and affirm the judgment.

Defendant Catalino Garcia is a California inmate serving an indeterminate life sentence. After the Board of Parole Hearings (Board) denied him parole for the sixth time, defendant petitioned the superior court for a writ of habeas corpus. The court granted defendants petition and ordered the Board to reconsider its decision and conduct a new parole eligibility hearing. This appeal by the warden of Chuckawalla Valley State Prison followed. Court affirm.

Rick Lee Mock appeals from the judgment entered following an order revoking probation. He previously pled no contest to vandalism causing damage over $400, count 1 (Pen. Code, 594, subd. (a)), and disobeying a domestic relations court order, a misdemeanor, count 2 (Pen. Code, 273.6, subd. (a)). Imposition of sentence was suspended and he was placed on probation. Following revocation of probation, he was sentenced to the upper term of three years on count 1 and a concurrent term on count 2. Appellant contends his sentence must be reversed because it was based on aggravating facts not admitted by appellant nor submitted to and found true by a jury. For reasons stated in the opinion, Court affirm the judgment.

Parents appeal the juvenile courts summary denial of a fathers petition for modification under section 388 of the Welfare and Institutions Code seeking return to his custody of his seven children, or the provision of additional family reunification services. court conclude fathers petition failed to make an adequate showing triggering a right to a hearing, and affirm.

Appellants Maxine L. and Jay L. appeal from an order pursuant to Welfare and Institutions Code section 366.26[1]terminating their parental rights. We previously denied their petition (Cal. Rules of Court, former rule 38.1 [now rule 8.452]) to set aside an order terminating reunification services and setting the section 366.26 hearing. (Maxine L. v. Superior Court (Mar. 29, 2006, B188453) [nonpub. opn.].) They now contend the trial court erred in terminating their parental rights, in that the parental and sibling relationship exceptions to termination ( 366.26, subd. (c)(1)(A), (E)) applied. Court disagree and affirm.

Appellant Marissa O. (mother) appeals from a juvenile court terminating her parental rights to Manuel R., Jr. (Manuel). She contends that the juvenile court committed two errors: (1) Pursuant to In re Fernando M. (2006) 138 Cal.App.4th 529 (Fernando), the juvenile court erred in refusing to apply the Welfare and Institutions Code section 366.26, subdivision (c)(1)(D)exception to adoption. (2) Notices sent pursuant to the Indian Child Welfare Act (ICWA) were improper.
As for mothers complaint that respondent Department of Children and Family Services (DCFS) did not comply with ICWAs notification requirements, DCFS concedes in its respondents brief that notice was deficient. That error compels a limited reversal of the juvenile courts order terminating mothers parental rights. This matter is remanded back to the juvenile court for compliance with ICWAs notice requirements.
That being said, Court conclude that substantial evidence supports the juvenile courts order refusing to apply the section 366.26, subdivision (c)(1)(D) exception to adoption.

Enrique Hernandez fell through a false ceiling while at work. The fall rendered him paraplegic. He and his wife Maria sued his employers landlord, C. DeGroot & Sons, a general partnership (the Landlord). The Hernandezes recovered a net judgment of $2,953,719.94. The Landlord appeals (case No. C049695), principally contending the verdict of liability is insupportable for lack of a duty of care.
Liability was predicated on the Landlord creating or failing to correct a dangerous condition of the premises, the unprotected interior roof from which Enrique Hernandez fell. Failure to provide protective guardrails for elevated work areas is the subject of a Cal OSHA safety regulation. The regulation was used in a negligence per se instruction that led to the liability verdict. The Landlord acquiesced to the instruction at trial. On appeal, it fails to show the instruction was unwarranted. In view of this and the lack of merit of the other contentions of error, Court affirm the judgment against the Landlord.

A jury convicted defendant Weili Kao of three counts of corporal injury to a child (counts two through four) and one count of willful harm to a child (count five) as the result of defendants physical assault upon her stepdaughter, T.L. (Pen. Code, 273a, subd. (a), 273d, subd. (a); further section references are to the Penal Code.) The jury also found that defendant inflicted great bodily injury in the commission of counts two and three, and that she used a deadly or dangerous weapon in the commission of count four. ( 12022, subd. (b)(1), 12022.7, subds. (a) & (b).) It was unable to reach a verdict on the charge that defendant tortured T.L. within the meaning of section 206. Defendant was sentenced to an aggregate term of 16 years and 4 months in state prison. On appeal, she challenges the sufficiency of the evidence and raises various sentencing errors. The California Supreme Court again granted review and on September 12, 2007, it transferred the case back to us with directions to reconsider the matter in light of People v. Black (2007) 41 Cal.4th 799 (hereafter Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (hereafter Sandoval). Court have done so and affirm the judgment.

After his motion to suppress was denied, defendant Ronald Dean Glaser pled no contest to possession of methamphetamine for the purpose of sale (Health & Saf. Code, 11378; undesignated statutory references are to the Health and Safety Code). Sentenced to 10 years in state prison, he now appeals, contending the trial court erred in denying the suppression motion, sentencing defendant to the upper term, and refusing to strike any of the alleged enhancements.

A jury found defendant John Andrew Hodge guilty of discharging a firearm in a grossly negligent manner and being a felon in possession of a firearm. The trial court found true two prior conviction allegations and sentenced him to four years in prison. Defendant appeals, raising the following two contentions: (1) the trial court abused its discretion in allowing the prosecutor to ask three of her witnesses leading questions; and (2) trial counsel was ineffective in failing to object to the $1,000 restitution fine and corresponding parole revocation fine. Disagreeing with these contentions, Court affirm the judgment and order a minor correction to the abstract of judgment.

Defendant Eric Lee Johnson admitted violating the terms of his probation in two criminal cases based on a positive drug test. Based on a Johnson waiver,[1]the trial court ordered defendant to serve six months in jail in one case (case No. S04CRF0358) with no credit for time already spent in custody and no conduct credits for the incarceration to come, and with his probation in that case to terminate upon completion of the jail term. In the other case (case No. S05CRF0263), the court imposed a two-year prison term, but stayed execution of that sentence and reinstated defendant on probation subject to various conditions. After the sentencing hearing, on the same day he filed a notice of appeal in both cases, defendant filed a Marsden[2]motion for a new attorney. The trial court summarily denied the motion without a hearing, concluding the motion was untimely because there were no hearings scheduled and defendant could have raised the issue earlier. On appeal, defendant asserts the trial court erred in denying his Marsden motion without a hearing. Defendant also contends the trial court erred in not construing an earlier letter to the court as a Marsden motion. Court disagree on both counts. Accordingly, Court affirm.