CA Unpub Decisions

In February 2005 Najib Phahez owned a 7-Eleven convenience store on Starling Drive in San Diego. In early February an employee of the 7 Eleven noticed items were missing from the health and beauty section of the store. Phahez determined there was a loss valued at $694. He examined the store's security tapes and saw someone on February 2, 2005, remove products from the shelf. He called the police and provided them with a compact disc of the footage.
Appellant's sole argument on appeal is that the trial court erred when it refused to give CALJIC No. 2.92, specifically, with respect to the identification offered by Ramirez in the San Carlos Drive 7 Eleven burglary. CALJIC No. 2.92 sets forth factors the jury may consider in proving identity by eyewitness testimony.[5] In refusing to give the instruction, the trial court stated it was not appropriate because substantial evidence, including surveillance video and the testimony of Tanya Evans, corroborated Ramirez's identification. The judgment is affirmed.

Plaintiff Dianne Loggins filed this action against her former employer, defendants Kaiser Permanente International, Kaiser Foundation Health Plan, Inc., and Southern California Permanente Medical Group (collectively Kaiser), alleging her employment was terminated in retaliation for her complaint that her supervisor had discriminated against her because of her race. Kaiser contended Loggins's employment was terminated because Kaiser's investigation confirmed Loggins had devoted excessive work time and work resources to furthering her outside personal business, in violation of Kaiser's policies.

Plaintiffs Cumbre, Inc. and its wholly owned subsidiary, Coachella Valley Insurance Service, Inc., (collectively Cumbre) were preferred brokers for defendant State Compensation Insurance Fund (State Fund). In 2003, State Fund unilaterally terminated its preferred broker agreements with certain brokers, including Cumbre, who had a loss ratio above 80 percent for the years 1999, 2000, and 2001. Cumbre sued State Fund for various causes of action, including a breach of contract, a violation of the Unfair Competition Law (UCL) (Bus. & Prof. Code, 17200 et seq.), and a violation of the common law doctrine of fair procedure. In 2004, State Fund offered to reinstate the brokers on condition that the brokers were not engaged in litigation with State Fund. Cumbre declined the offer and amended its complaint by adding a claim under section 1983 of title 42 of the United States Code (section 1983) for encumbering its access to the courts. In response to the parties pretrial motions, the trial court largely ruled in State Funds favor, sustaining its successive demurrers and granting its motion for summary judgment. Court reverse the trial courts decision granting State Funds motion for summary judgment or summary adjudication as to Cumbres causes of action under the doctrine of fair procedure and under the UCL. Court affirm the trial courts judgment in all other respects.

In a previous appeal, we affirmed defendants convictions for 40 counts of child molestation. ( 288, subd. (a).) We remanded the case for resentencing under section 67.61, subdivision (b). (People v. Champion (2005) 134 Cal.App.4th 1440, 1443, [nonpub. portion].) Defendant appeals from the sentence imposed on remand. ( 1237, subd. (a).) He challenges the $20 court security fee imposed under section 1465.8 and the trial courts handling of the recalculation of defendants custody credits. Court reject defendants claim of error concerning section 1465.8. Court agree with defendant and the People that it is the obligation of the trial court to recalculate and credit against the modified sentence all actual time defendant has served. The matter is remanded again for that purpose.

The County of San Bernardino sued defendants Jorge Mejia and Rosa Mejia and obtained a preliminary injunction prohibiting them from conducting a commercial truck repair business and allowing commercial parking on their residential real property located contiguously at 17791 and 18023 Santa Ana Avenue in Bloomington. Defendants appeal, arguing that granting the injunction was an abuse of discretion and raising new issues on appeal that sections of the County Code are unconstitutional, and challenging the power of county counsel to bring an action to abate a public nuisance or to prosecute a code enforcement action. The trial court did not abuse its discretion. Court reject defendants other contentions and affirm the judgment.

The minorsinfant M.N. and year-old S.S.came to the attention of real party in interest on July 24, 2006, when M.N. was brought to a hospital by mother with injuries which were deemed to be suspicious. M.N. was found to have a fractured femur, fractured clavicle, and fractured skull. Contacted by a San Bernardino County Department of Childrens Services worker, mother asked the worker not to take her children, reported that she herself was a product of the system, and blamed M.N.s injuries on his day care provider. S.S. was at the time being cared for by M.N.s father and mothers former boyfriend, Jesus L. Mother also has an older child, who is in the custody of his natural father. The petition is denied.

Defendant Lonnie Lorenzo Johnson was convicted of first degree murder. In addition, the jury found true the special circumstance that the murder was committed during the commission of a robbery. (Pen. Code, 190.2, subd. (a)(17)(A).) The jury also found that defendant personally used a deadly or dangerous weapon during the commission of the murder. (Pen. Code, 12022, subd. (b)(1).) Defendant was sentenced to prison for a term of life without the possibility of parole.
On appeal, defendant contends: (1) the prosecutor used a peremptory challenge to exclude an African-American potential juror in violation of People v. Wheeler (1978) 22 Cal.3d 258(Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson); (2) the trial court erroneously excluded evidence of third party culpability; and (3) the trial court denied him due process by instructing the jury under CALJIC No. 2.15. Court affirm.

Appellant Hector Guillen Lopez was convicted of felony possession of methamphetamine. On appeal, he challenged the trial courts decision to deny probation pursuant to Proposition 36 (Pen. Code,[1] 1210.1) because an immigration hold had been placed on him. This court remanded the matter for the trial court to determine whether appellant was eligible for Proposition 36 probation based on his immigration status, as stated in People v. Espinoza (2003) 107 Cal.App.4th 1069 (Espinoza):

On remand, the trial court again denied probation and found there was a substantial likelihood of imminent deportation because appellant had been ordered deported, and he was in federal custody awaiting the resolution of his appeal of the deportation ruling. In the instant appeal, appellant contends the court improperly conducted the proceedings on remand in his absence, and that he should have been placed on Proposition 36 probation because the deportation order had been stayed pending further review. Court affirm.

Plaintiff Elias Laty, doing business as Laty & Associates, sued defendant Nabil Samuel, his former employee, seeking damages for breach of a contracts noncompetition clause, money had and received, and fraud. The trial court entered judgment for defendant. Because the evidence supports the judgment, Court affirm.

This appeal is brought by the mother of two dependent children. She seeks reversal of the juvenile courts order terminating her right to make educational decisions for her older child. In addition, she challenges both the adequacy of the reunification services provided to her and the courts decision not to return the children to her custody at the first review hearing. For reasons explained below, Court affirm the challenged orders.

Lacy Winzer (Winzer) appeals from a judgment of conviction and sentence after a jury found him guilty of robbery and petty theft with a prior. (Pen. Code, 211/212.5, subd. (c), 484/666.) He contends the trial court erred by refusing to instruct the jury on battery and assault as lesser included offenses of robbery, and by failing to instruct explicitly that robbery requires a nexus between the force exerted and an intent to steal. Court affirm the judgment.

Appellant appeals from a jury finding determining that he is a sexually violent predator (SVP) under Welfare and Institutions Code section 6600 et. seq., and the subsequent order of the trial court committing him to Coalinga State Hospital for two years. Court affirm.

Following a mistrial on rape charges, defendant Jason Bighead pleaded guilty to sexual battery and unlawful sexual intercourse. Pursuant to a negotiated disposition, his sentence was suspended and he was placed on probation conditioned on serving 16 months in the county jail. Defendants probation was later revoked, and he was sentenced to the upper term of four years in state prison on the sexual battery count, with a concurrent upper term sentence on the unlawful sexual intercourse count. On appeal, defendant contends that his upper term sentences were imposed in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court disagree, and affirm the judgment.

Appellants Bushra and David Eckstein appeal from a judgment of the Contra Costa County Superior Court against them and in favor of respondents Kaiser Foundation Health Plan, Inc., The Permanente Medical Group, Inc., and Kaiser Foundation Hospitals (collectively Kaiser). The judgment confirmed an arbitrators award against the Ecksteins and in favor of Kaiser. On appeal, the Ecksteins contend the trial court improperly denied their petition to vacate the arbitrators award because the arbitrators membership in Kaiser Foundation Health Plan (Kaiser Health) was disqualifying information and a required disclosure under Code of Civil Procedure section 1281.9, and the arbitrators failure to disclose such membership is a ground for vacating the award ( 1286.2, subd. (a)(6)(A)). The Ecksteins argue further that Kaisers failure to disclose the membership resulted in an arbitral award procured by fraud and undue means ( 1286.2, subd. (a)(1) & (3)). Additionally, the Ecksteins contend the judgment should be reversed because the trial court improperly failed to issue a statement of decision. Court affirm the judgment.