CA Unpub Decisions

Roger Lewis Jenan argues that the courts failure to follow established procedures to determine whether he was mentally competent requires reversal of the judgment.The Attorney General argues the contrary. Court reverse the judgment.

Cross complainants MBG Industries, Inc. (MBG) and Michelle Ross (Ross) (collectively appellants) appeal from the judgment entered after the trial court granted summary judgment in favor of cross-defendant WestAmerica Bank (WAB) on appellants cross-complaint, which alleged WAB discriminated against them when it denied MBGs loan application. Court affirm.

Appellant, pled no contest pursuant to a negotiated plea to one count each of forcible rape (count 1, Pen. Code, 261, subd. (a)(2)) and first degree burglary (count 2, 459) and admitted allegations in count 1 that the victim was 65 years of age or older ( 667.9, subd. (a)). On February 23, 2006, the court sentenced Ballestero in accord to his plea agreement to a four-year term. On appeal, Ballestero contends the court violated the terms of his plea bargain. Court affirm.

On May 2, 2006, a jury trial commenced against appellant, Kao Kuang Saechao, who was charged with feloniously running a chop shop (Veh. Code, 10802, count one). The information alleged a prior prison term enhancement. (Pen. Code, 667.5, subd. (b)). Appellant was further charged with misdemeanor allegations of altering a vehicles identification number (Veh. Code, 10750, subd. (a), count two) and possession of a component part from a vehicle in which the identification number had been removed (Veh. Code, 10751, subd. (a)). The jury acquitted appellant of count one and found him guilty of both misdemeanor allegations. The court sentenced appellant to concurrent six month jail terms. With credit for time served, appellant was released.

In December 2005, the 15-year-old victim began associating with appellant, Cedric Darnell Williams, Jonathon McKean, Thomas Ray Jackson, Shakore Ogan, and other older men. During January and early February 2006, the victim engaged in numerous acts of intercourse, oral copulation and sodomy with various men including Williams, McKean, Ogan, and Jackson. On separate occasions, Williams and Ogan told the victim they wanted to put her on a prostitution track. Following independent review of the record Court find that no reasonably arguable factual or legal issues exist.

Following a contested urisdictional/dispositional hearing, appellant Manuel C. was found to have violated his probation and was ordered to spend 80 hours in the juvenile court work program. Manuel argues that this finding must be reversed because the juvenile court failed to advise him of his constitutional rights before accepting his slow plea. Court reject this argument because Manuel did not enter a slow plea. Although defense counsel stipulated to certain facts, she aggressively argued against a true finding on the probation violation allegation. The factual stipulation was part of the defense strategy and was not tantamount to pleading guilty. Accordingly, Court affirm.

Appellant, pled no contest as a part of a negotiated plea to unlawful possession of a firearm (count 2/Pen. Code, 12021, subd. (c)(1))and voluntary manslaughter (count 3/ 192, subd. (a)) and admitted a gun use enhancement ( 12022.5) in count 3. On appeal, Bean contends: 1) the court abused its discretion when it imposed the aggravated term on the arming enhancement in count 3; and 2) the court committed Blakely error. Court affirm.

Stanley Marsh petitions this court for a second writ of review (Cal. Rules of Court, rule 8.494; Lab. Code, 5950) following this courts earlier decision concluding the new apportionment provisions of Senate Bill No. 899 (SB 899) applied to all cases not yet final at the time of the legislative enactment on April 19, 2004, regardless of the dates of injury and any interim decision. (Marsh v. Workers Comp. Appeals Bd. (2005) 130 Cal.App.4th 906 (Marsh); Stats. 2004, ch. 34.) Marsh contends that under SB 899s revised apportionment standards, the etermination of the Workers Compensation Appeals Board (WCAB) that his 24 percent increase in permanent disability was 50 percent nonindustrial lacks substantial evidence and that the WCAB should have instead adopted the opinion of the workers compensation administrative law judge (WCJ) finding apportionment inappropriate. Marsh also claims the WCAB exceeded its powers by deferring its disposition on the calculation of benefits until the law of apportionment is settled. Court deny the petition.

Ruth J. is the former prospective adoptive parent of dependent child J.R. She petitions, in propria persona, for relief from a superior court finding that it was in J.s best interests to remove him from her home (Welf. & Inst. Code, 366.26, subd. (n)(3)(B)). On review, Court deny the petition.

Emiliano Avila Chavez petitions for writ of review contending the decision of the Workers Compensation Appeals Board (WCAB) barring benefits under the post termination/layoff defense (Lab. Code 3600, subd. (a)(10)) was not based on substantial evidence. Chavez also contends in order for the defense to preclude workers compensation benefits, there must be an affirmative showing of prejudice under section 5403. Court disagree and deny the petition.

Plaintiffs Eugene Levy and Sharon Battle challenge the judgment entered after the trial court sustained defendant State Farm Mutual Automobile Insurance Companys (State Farm) demurrer to plaintiffs fifth amended complaint without leave to amend, granted State Farms motion to strike class action allegations without leave to amend, and granted defendants motion to dismiss Battle on the grounds of forum non conveniens. Plaintiffs contend they have properly alleged both individual and class claims arising from State Farms practice of omitting certain labor and material costs from its repair estimates, and using its own contracted repair shops in its survey to determine the prevailing competitive repair labor rates included in its estimates.
Court conclude the trial court properly sustained State Farms demurrers without leave to amend. State Farms insurance policy obligated it to repair its insureds vehicles to their preaccident condition. The fifth amended complaint fails to describe how following State Farms repair estimates would not have restored Levys or Battles vehicles to their preaccident condition. Instead, the complaint alleges State Farms repair estimates failed to include items required by industry repair standards. California regulators, however, have not specified any particular repair standards and have not required insurers to follow such standards. Moreover, nothing in plaintiffs insurance contracts required State Farm to follow the standards preferred by plaintiffs. Similarly, no policy provision or law precludes State Farm from including its contracted repair shops in determining prevailing competitive repair labor rates. Court therefore affirm the judgment.

Defendant challenges the jurys finding he was legally sane when he committed attempted murder and assault with a firearm. He contends the court wrongly refused his proposed special instruction clarifying the definition of insanity. Court agree. The court should have instructed the jury that distinguishing right from wrong refers to moral right and wrong, as well as legal right and wrong. Court affirm the judgment of conviction, but reverse the sanity finding and remand for a new sanity trial.

Defendant pleaded no contest to five violations of the sex-offender registration provisions of Penal Code section 290: failing to update his registration within five days of his birthday ( 290, subd. (a)(1)(D) [count 1]), failing on or about August 4, 2003, to register a new address ( 290, former subd. (a)(1)(A); Stats. 2002, ch. 17, 1, eff. Mar. 28, 2002 [count 2]); failing on or about October 2, 2003, to register a new address ( 290, former subd. (a)(1)(A); Stats. 2003, ch. 634, 1.3, eff. Sept. 30, 2003 [count 3]), failing to notify the last registering agency of a change of address ( 290, former subd. (f)(1); Stats. 2003, ch. 634, 1.3, eff. Sept. 30, 2003 [count 4]), and failing to update registration within five days of release from custody ( 290, former subd. (e)(2); Stats. 2002, ch. 17, 1, eff. Mar. 28, 2002 [count 5]). Defendant admitted four prior convictions: three for purposes of section 1170.12 and subdivisions (b)-(i) of section 667, and one for purposes of section 667.5, subdivision (b). The trial court sentenced defendant to four years in prison on count 1, and to concurrent terms of four years each on counts 2 through 5. It struck the section 667.5, subdivision (b), prior pursuant to section 1385. On appeal, defendant maintains that his conviction for failing to update his registration as a sex offender within five days of his birthday must be stricken as imposed in excess of jurisdiction, that certain sentences constitute multiple punishments and must be stayed, and that the trial court abused its discretion in denying his motion to substitute counsel. Court modify the judgment but affirm it as modified.

This is an appeal from the conviction following a jury trial of appellant Kevin Edward Clarke for: (1) murder, (2) attempted robbery, (3) burglary, (4) discharge of a firearm at an inhabited dwelling, (5) assault with a firearm, and (6) firearm possession by a felon. In connection with the murder offense, the jury found appellant guilty of two felony murder special circumstances: (1) engaging in the commission or attempted commission of a robbery within the meaning of Penal Code section 190.2, subdivision (a)(17), and (2) engaging in the commission or attempted commission of a burglary within the meaning of Penal Code section 190.2, subdivision (a)(17). The jury also found true that appellant was armed in connection with all offenses where arming was alleged, and that he had previously been convicted of a serious felony and had served a prior prison term.
Appellant seeks to reverse his conviction on grounds of ineffective assistance of counsel. Court affirm.