CA Unpub Decisions

Johnny Leroy Reed (Reed) and Damion Byrd (Byrd) were convicted of first degree murder of Harold Butler, Jr., premeditated attempted murder of Akwood Rollins and Jaswant Deol, and assault with a semiautomatic firearm on Luis Leon and Aracelli Leon. Byrd was also convicted of committing a residential burglary. With respect to the murder of Harold Butler, Jr., the jury found true an allegation that Reed personally discharged a firearm proximately causing death (Pen. Code, 12022.53, subd. (d),[1] and that Byrd personally discharged a firearm ( 12022.53, subd. (c)). With respect to the two attempted murder counts, the jury found true allegations that Reed and Byrd personally discharged a firearm in the commission of the offense ( 12022.53, subd. (c)). The jury also found true, with respect to each count of murder and attempted murder, that each defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1).
The court sentenced Reed to 98 years to life in state prison, and Byrd to 74 years four months in prison. They each filed timely notices of appeal.
The judgment is affirmed,

A jury convicted defendant of three counts of furnishing a minor with a controlled substance in violation of Health and Safety Code section 11380, subdivision (a), and two counts of unlawful sexual intercourse with a minor in violation of Penal Code section 261.5, subdivision (c).[1] Defendant appeals and challenges the lower courts decision to dismiss a juror after deliberations had started and its refusal to conduct an evidentiary hearing after the jury verdict when the dismissed juror alleged another juror had engaged in misconduct. Additionally, defendant contends that the lower court improperly sentenced him to the upper term for his convictions of furnishing a minor with a controlled substance. He asserts that imposing the upper term violated the dual use doctrine and his due process and Sixth Amendment rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We are unpersuaded by defendants arguments regarding the lower courts decision to remove one juror and not to conduct an evidentiary hearing regarding the alleged misconduct of another juror. Court also conclude that defendant has forfeited any challenge to his sentence based on the dual use of facts doctrine because he did not object to the aggravated sentence in the lower court. Furthermore, imposing the upper term did not violate his constitutional right to a jury trial because there were three recidivism factors in aggravation.

A jury convicted defendants Markell Scott and Willie Ramsey of multiple offenses committed during a home invasion. Defendants challenge their convictions and prison sentences. Court affirm the convictions and Scotts sentence but remand Ramseys case for resentencing on a limited issue.

In appellant Roberta A. Steeles personal injury action, the trial court granted nonsuit in favor of respondent Cingular Wireless LLC (Cingular). Steele appeals, contending that Cingular was vicariously liable for its employees motor vehicle accident. Court affirm the judgment.

Section 24 (Fifth) of the National Bank Act (NBA) provides the following powers to a duly organized national banking association: To elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places. (12 U.S.C.A. 24 (Fifth).) Courts have long recognized that the power conferred by Section 24 (Fifth) on national banks to dismiss its officers at pleasure is protected by the doctrine of preemption from all state law claims filed by their former officers for breach of an employment agreement. (See, e.g., Mackey v. Pioneer Nat. Bank (9th Cir. 1989) 867 F.2d 520, 524-536.) Courts have also acknowledged the doctrine of preemption protects national banks that dismiss their officers under Section 24 (Fifth) from state law discrimination claims filed by their former officers, although in this regard, courts have differed on whether such preemption is total or partial. (Cf. Aalgaard v. Merchants Nat. Bank, Inc. (1990) 224 Cal.App.3d 674, 695 [claims under state age discrimination statute totally preempted by Section 24 (Fifth)] with Marques v. Bank of America (1997) 59 Cal.App.4th 356, 363-364 [state antidiscrimination claims under FEHA preempted only to the extent they conflict with federal antidiscrimination laws].)
Because the Bank failed to prove Ramanathan was an officer of the bank under Wells Fargo, it was not entitled to summary judgment on grounds of preemption under Section 24 (Fifth). Accordingly, Court reverse the summary judgment awarded in favor of the Bank and remand for further proceedings.

Defendant Chili Willie purports to appeal from the trial courts failure to return to him money that was confiscated when he was arrested. Court conclude the ruling from which he has appealed is a nonappealable order and dismiss his appeal.

In this employment discrimination action, the trial court granted respondent City and County of San Franciscos (city) motion for summary judgment on appellant Timothy Hessongs action for violation of the state Fair Employment and Housing Act (FEHA). (See Gov. Code, 12900-12996.) On appeal from the subsequent judgment dismissing his action, Hessong contends that (1) his objections to evidence should have been sustained; (2) the city deliberately failed to accommodate him; (3) it deliberately violated the law regarding its duty to accommodate him, specifically by its requirement that he file Americans with Disabilities Act (ADA) forms; and (4) there are multiple triable issue of material fact that preclude summary judgment. Court affirm the judgment.

This case consolidates defendant and appellant Cesar Valadezs direct appeal of the trial courts denial of his motion to vacate his conviction in Alameda County Superior Court case number H36847B (H36847B), and his concurrent petition for a writ of mandate challenging the trial courts denial of his request for a certificate of probable cause to file an appeal of its decision to deny the motion to vacate. Court dismiss the appeal and deny the petition for writ of mandate. On direct appeal appellant also challenges the trial courts denial of his motion to withdraw his guilty plea in Alameda County Superior Court case number H39895A (H39895A). The judgments in H36847B and H39895A are affirmed. The petition for writ of mandamus is denied.

Michael Sawyers (Sawyers) appeals from a summary judgment entered against him on his complaint for racial discrimination and retaliation under the California Fair Employment and Housing Act (FEHA). (Gov. Code, 12900 et seq.) He contends that the trial court erred with respect to his retaliation claim because: (1) the court sustained respondents objections to certain evidence; and (2) there is at least a triable issue of fact material to his claim.Court affirm the judgment.

A modification decision.

Appellants Heather H. (mother) and Robert H. (father) appeal from the juvenile courts orders, pursuant to Welfare and Institutions Code section 366.26,[1] terminating their parental rights with respect to their son, Thomas H. (now three years old). Mother contends (1) the juvenile courts findings that the sibling, parent child, and other family members relationship exceptions to adoption did not apply were not supported by substantial evidence, and (2) the juvenile court failed to require and consider an adequate assessment report before terminating parental rights. Father joins in the arguments raised by mother, and also contends (1) his constitutional and statutory rights to notice were violated when the juvenile court failed to ensure he was properly renoticed regarding the continued section 366.26 hearing, and (2) the order terminating his parental rights must be reversed because the court never made a finding that he was an unfit parent. Court affirm the juvenile courts orders.

Defendant and appellant Stanley Holton appeals from a final judgment revoking probation and imposing sentence following a contested revocation hearing. Appellants counsel has filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) Court affirm.

On March 2, 2006, while he was on parole, Bryon Hood pleaded guilty to the felony offense of possession of cocaine base for sale. The imposition of sentence was suspended, and the court placed Hood on three years formal probation, with the understanding that Hood was to comply with both probation and parole obligations. About seven months later, on October 18, 2006, the district attorney filed a motion to revoke probation on the grounds of a new arrest for transporting or selling narcotics and obstructing and resisting arrest. After a contested hearing, the court revoked probation and imposed the upper term of five years on the possession offense.

Craig L., the father of Elizabeth L. and the presumed father of Morgan C., appeals from orders terminating his parental rights. He contends the juvenile court failed to secure compliance with the notice requirements of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA). He further argues that, to the extent ICWA applies, the juvenile court failed to comply with ICWAs substantive requirements, including the requirement that an order terminating parental rights with respect to an Indian child must be supported by the testimony of a qualified expert witness. Court reverse and remand for the limited purpose of securing compliance with ICWAs notice requirements.