CA Unpub Decisions

A jury convicted Victor Manuel Cruz of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), battery with serious bodily injury ( 243, subd. (d)), giving false information to a peace officer ( 148.9, subd. (a)), and threatening a witness ( 140). The jury also found appellant suffered four prior felony convictions and served two prison prior terms. The trial court sentenced appellant to a total of 19 years in state prison. On appeal appellant argues the sentence imposed by the trial court for counts 1 and 2 was based on facts not found true by the jury beyond reasonable doubt, which violated appellant's constitutional rights guaranteed by the Fifth, Sixth and Fourteenth Amendments. The judgment is affirmed.

L.B. (Mother) appeals an order continuing the juvenile court's jurisdiction of her son, A.B., under Welfare and Institutions Code section 364 Mother contends the court erred because there was insufficient evidence to support its finding that continued supervision of the child was necessary.
The order is affirmed.

A jury convicted defendant Brian Meekins of grand theft, in violation of Penal Code section 487, subdivision (a) (count 1), and receipt of stolen property, in violation of section 496, subdivision (a) (count 3). He was acquitted of a burglary charge. ( 459.) Defendant was given a three-year upper term sentence on both count 1 and count 3, and stayed the sentence on one of the counts pursuant to section 654. Sentence was imposed but stayed, and defendant was put on probation. On appeal, he contends that his conviction for receiving stolen property must be reversed because he was convicted of theft of the same property he received and, under section 496, subdivision (a), no person may be convicted both pursuant to this section and of the theft of the same property. The Attorney General concedes the error. Court agree and reverse the conviction on count 3. Defendant also contends that the upper term sentence violated Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because the trial court, in reaching its upper term sentencing decision, made factual findings that aggravating factors existed.

Defendant Damon Cedric Bennett engaged in a gun battle with Jamal Moreno in broad daylight in a neighborhood packed with children and adults. Moreno, while driving his car through the neighborhood, approached defendant, who was on foot. Defendant started shooting at Morenos car. Moreno shot back at defendant. During the gun battle, a nine year old girl was shot in the leg with a stray bullet. Although defendant was originally charged with Moreno, Moreno pled guilty during trial.

On August 22, 2006, defendant was charged by felony complaint with committing a lewd act on a child under the age of 14 (Pen. Code, 288, subd. (a), count one), two counts of committing a lewd act on a child under the age of 14 by force, violence, duress, menace and fear of immediate and unlawful violent injury (Pen. Code, 288, subd. (b)(1), counts two and three) and forcible oral copulation on a child under the age of 14 (Pen. Code, 269, subd. (a)(4), count four).
Defendant filed a timely notice of appeal and requested the issuance of a certificate of probable cause. The trial court granted that request and defendants certificate of probable cause was filed on November 15, 2006.

On January 11, 2007, a petition was filed in the San Bernardino County Juvenile Court pursuant to Welfare and Institutions Code section 602, requesting fourteen year old minor be adjudged and declared a ward of the juvenile court. Count one of the petition alleged that on or about December 12, 2006, minor did unlawfully take a firearm in violation of Penal Code section 487, subdivision (d)(2). The court ordered minor home on probation, imposed conditions of probation, and deferred entry of judgment. Upon request by the district attorney, and over the objection of minors attorney, the juvenile court made a factual finding for a predicate offense pursuant to Penal Code sections 186.30 and 186.22, but struck the requirement for registration, as set forth in term number 32 of the terms and conditions of probation.

In a new petition filed by the District Attorney of Riverside County, minor was charged with one count of rape (Pen. Code 261, subd. (a)(2)),[1]and one count of violating section 261.5, subdivision (b) of unlawful sexual intercourse with Jane Doe, a person not more than three years different in age than him. On March 1, 2007, following a contested disposition hearing, both allegations were found to be true. Care, control and custody of the minor was placed with the probation department and minor was ordered released to the custody of himself. He was further ordered committed to the juvenile work program for a period of 24 to 48 days.
court have now concluded our independent review of the record and find no arguable issues.

After admitting to petty theft (Pen. Code, 484, subd. (a)),[1]being convicted of resisting arrest ( 148, subd. (a)(1)) and auto vandalism of at least $400 on behalf of a street gang ( 594, subd. (a) & (b)(1), 186.22, subd. (b)(1)(B)), appellant Anthony R. was ordered into electronically monitored home confinement, subject to standard probationary terms. Appellant was 15 years old at the time of the offense.
Appellant now claims that (1) insufficient evidence supports his conviction for causing at least $400 damage to both cars, (2) two misdemeanor vandalism offenses should have been charged as opposed to a single felony, and (3) reversal of the felony vandalism conviction requires reversal of the gang enhancement. For the following reasons, Court affirm.

Appellant Joe Guerra stands convicted of assault with a deadly weapon on a peace officer, exhibiting a deadly weapon at a peace officer to resist arrest, and being under the influence of methamphetamine. The trial court imposed consecutive terms. Guerra contends the trial court should have stayed imposition of punishment on the brandishing offense pursuant to Penal Code section 654. He also contends the trial court violated his Sixth Amendment rights by imposing consecutive terms and that counsel was ineffective in failing to argue for concurrent terms. Court affirm the judgment.

Defendants David Tamez, Ivan Gonzalez, and Ronald Bray were jointly tried and convicted for an attack upon three men that left one man dead and the others seriously injured. Defendants, wearing hooded sweaters and bandanas to conceal their faces, descended upon an apartment where they stabbed Salvador Figueroa to death, stabbed Jose Sanchez a dozen times, and battered Salvador Betancourt Ceja with a nunchaku that broke his nose. Defendants are serving indeterminate life terms in prison for murder, attempted murder, assault with a deadly weapon, burglary, and street gang participation. They separately raise numerous challenges on appeal. Court affirm the judgments in all respects but one. Court are compelled to strike a sentencing enhancement for personal infliction of great bodily injury because there is insufficient evidence to establish who, among the three defendants, applied direct force to Sanchez. (Pen. Code, 12022.7, subd. (a) (all further section references are to this code, except as noted).)

Appellant Yolanda Anderson (appellant) appeals from a summary judgment granted in favor of the State of California and certain of its employees (collectively respondents) claiming that the trial court improperly refused to consider certain evidence she presented in opposition to the motion, and that this evidence, when viewed together with that which the court did consider, created triable issues of material fact as to her employment-related claims against respondents. No other basis for granting summary judgment or summary adjudication has been briefed or argued by respondents on appeal. We agree with appellants contentions on appeal, and conclude that she has demonstrated respondents were not entitled to summary judgment on any of her causes of action. Accordingly, Court reverse, and remand for further proceedings.

Esperanza F. (mother) appeals from June 9, 2006 orders of the Alameda County Juvenile Court following a combined juvenile court hearing on detention, jurisdiction and disposition regarding her two daughters, A.J. (born December 2001) and K.B (born March 2006). The court found that A.J. and K.B. were at substantial risk of emotional or physical abuse and placed the children out of home pursuant to Welfare and Institutions Code sections 300, 361, and 387.[1] Esperanza argues that reversal of the orders is required because the court failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901, et seq.). She further contends there was insufficient evidence to support the dispositional order removing then four and one half year-old A.J. from her home pursuant to section 387. Court affirm the orders and remand to the juvenile court with directions to comply with the inquiry and notice provisions of the ICWA, if it has not already done so.

Defendant Siamak Taromi was a participant in a failed real estate deal. As part of the dissolution of that deal, Taromi and Jeff Kaiser gave a promissory note to plaintiff Prime Vest Realty, Inc. (Prime Vest). Taromi later assumed responsibility for the note, agreeing to indemnify Kaiser against any claims brought in connection with it. When Prime Vest filed this action against Taromi and Kaiser to collect on the promissory note, both responded with cross-complaints alleging fraud and seeking rescission of the note. Prior to trial, Kaiser settled with Prime Vest, making a $100,000 payment on the note. The trial court then found Taromi liable to Prime Vest and entered judgment against Taromi for the entire principal amount of the promissory note, along with other damages and attorney fees and costs. Taromi argues that the trial court was required to hold a hearing under Code of Civil Procedure section 877.6 to determine the good faith of the settlement, that the trial court erred in failing to offset the settlement payment against his liability on the note, and that the trial court should have allocated the attorney fees award. Court agree that Taromi was entitled to an offset, but we otherwise affirm the judgment.

A class action settles in 2003 for $13 million. The class is over 10 years old, and large, with some 650,000 members. Extensiveand expensiveefforts to locate class members, give them notice, and distribute the checks for the allowed claims result in over 404,000 members being sent settlement payments, at a cost of $1.7 million paid by the settling defendants as expressly agreed in the Settlement Agreement. But some 165,000 settlement checks go uncashed, leaving a $3.2 residue in the settlement fund. In 2006, plaintiffs move for a second payment to the some 240,000 class members who cashed their checks, and request that the $495,000 cost for this second payment also be borne by the settling defendants. The trial court ordered the second payment, but with the costs to be paid out of the settlement residue. Plaintiffs appeal the cost aspect of the trial courts order. Court affirm.