CA Unpub Decisions

Plaintiff Ginbineh T. Ayele, in propria persona, appeals from orders of the San Francisco Superior Court entering judgment against him and in favor of defendants Permanente Medical Group, Inc., Kaiser Foundation Hospitals and Kaiser Foundation Health Plan, Inc. (collectively Kaiser) in superior court cases No. 404360 and No. 404359. These judgments were entered based upon an arbitration award against appellant and in favor of Kaiser. Court conclude that having failed to challenge the arbitrator's award within the 100-day period provided by Code of Civil Procedure section 1288 for vacating an arbitration award, appellant may not challenge it on appeal. Court therefore affirm the judgment.

Defendant appeals a judgment entered upon a jury verdict finding him guilty in count one of grand theft (Pen. Code, S 487, subd. (a)), in count two of second degree commercial burglary (SS 459, 460, subd. (b)), and in count three of attempted grand theft (SS 487, subd. (a), 664). The trial court sentenced defendant to the two year midterm on count one, to a concurrent one year term on count three, and stayed sentence on count two. Defendant contends on appeal that he could not properly be convicted of both the theft alleged in count one and the attempted theft alleged in count three. Court agree and conclude the attempted theft conviction must be reversed.

Appellant contends his conviction for battery on school property (Pen. Code, S 243.2, subd. (a)), a misdemeanor, should be reversed because he was acting in self defense. Court affirm the judgment.

Plaintiff Robert Roe appeals from denial of his motion for attorney fees under 42 United States Code section 1988. Court reverse and remand for the trial court to exercise its discretion to award reasonable attorney fees.

Defendant entered a plea of guilty to second degree robbery (Pen. Code, S 211), two counts of assault with a firearm (S 245, subd. (a)(2)), and criminal street gang activity (S 186.22, subd. (a)). He also admitted an associated enhancement for commission of offenses to promote a criminal street gang (S 186.22, subd. (b)(1)), and that he was 16 years of age or older when he committed the offenses (Welf. and Inst. Code, S 707, subd. (d)(1)). He was denied probation and sentenced as an adult to an aggregate state prison term of seven years. The sole contention made in this appeal is that the trial court erred by denying defendant probation and imposing the prison term. Court conclude that the sentence was not an abuse of the trial court's discretion, and affirm the judgment.

Appellants Steven L. Gomes and Premier Design & Construction, Inc. (Gomes), real estate developers, challenged a school facilities fee imposed by respondent Ukiah Unified School District (District). In a prior appeal, court reversed because the District had failed to identify the use to which the fee would be put, as required by law. (Gomes v. Ukiah Unified School Dist. (Nov. 10, 2004, A104744) [nonpub. opn.] at pp. 10 to 13, 15 (Gomes II).) The District's fee resolution did, however, recite that the fees would be used for "construction and/or reconstruction of school facilities as identified in the plan," and made reference to "applications and related documents filed with the State Allocation Board . . . (. . . referred to as the 'Plan.')" Because "the Plan" was not in the record we could not determine what it was, or whether the fee exceeded the reasonable cost of the facilities for which it was imposed. We therefore remanded for the limited purpose of giving the District the opportunity to produce the plan referred to in the resolution; court directed the trial court to determine whether there was a "Plan," and whether the fees exceeded the reasonable costs of the "Plan." (Id. at pp. 13-14, 15.)
The trial court should not have permitted the introduction of testimony and a new set of documents to prove a newly minted theory to justify the District's fee. This kind of post hoc rationalization fails to conform to the procedures required by law. Moreover, although the District is entitled to rely on public documents to identify the facilities for which the fee will be used, the "applications and related documents filed with the State Allocation Board" (relied upon by the District in adopting the fee) do not comprise any decipherable "Plan" for any facilities. Accordingly, court reverse the judgment and remand the matter to the trial court with orders to issue the peremptory writ of mandate.

Defendant was convicted of attempted murder, assault with a deadly weapon and mayhem. On appeal, Chatman contends the judgment must be reversed for two independent reasons, juror misconduct and ineffective assistance of counsel. Court affirm.

Appellant was made a ward of the court under Welfare and Institutions Code section 800 after the court sustained the majority of the allegations of a Welfare and Institutions code section 602 petition, including an allegation that he committed two felonies of assault by means of force likely to produce great bodily injury under Penal Code section 245, subdivision (a)(1). On appeal, Earl T. contends that the evidence of the victim's injuries does not support a finding he committed serious bodily injury under Penal Code section 243. Because the court did not make any such finding, court affirm the judgment.

Labor Code section 4702, subdivision (a)(6)(B) provides that when a worker without dependents is fatally injured during the course and scope of employment, the employer must pay $250,000 to the deceased worker's estate as a compensation death benefit. In Six Flags, Inc. v. Workers' Compensation Appeals Bd. (2006) 145 Cal.App.4th 91 (Six Flags), the Second District Court of Appeal held that this provision is unconstitutional because the California Constitution does not identify workers' estates as a class of beneficiaries under the workers' compensation law. Court agree with the reasoning of Six Flags and annul an award of $250,000 in death benefits to the estate of Bernard Giradot.

Otis M. appeals from an order continuing him as a ward of the juvenile court and committing him to out of home placement at the Orin Allen Youth Rehabilitation Facility for six months. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) After review of the record, court find no arguable issues and affirm.

Mother of the young minor J.R., filed this petition for extraordinary writ pursuant to California Rules of Court, former rule 38.1, now rule 8.452, seeking to vacate an order of the trial court made on October 10, 2006, that terminated reunification services and set a hearing under Welfare and Institutions Code section 366.26 to consider termination of Mother's parental rights. For the reasons set forth below, the petition is denied.

Defendant appeals from the judgment entered following his conviction, by jury trial, for two counts of first degree murder with a multiple murder special circumstance finding, and enhancements for firearm use and gang activity (Pen. Code, S 187, 190.2, subd. (a)(3), 12022.53, 186.22, subd. (b)(1)). Sentenced to state prison for consecutive terms of life without possibility of parole, plus 35 years to life, Morales contends there was trial and sentencing error.
The judgment is affirmed.

By petition filed under Welfare and Institutions Code section 602, it was alleged that appellant Eduardo J. had committed felony battery and robbery. Following a contested jurisdictional hearing, the juvenile court found Eduardo had committed two lesser included offenses: misdemeanor battery on a school employee and attempted grand theft from the person (Pen. Code, SS 243.6, 487). The juvenile court ordered Eduardo home on probation, with a maximum confinement time of one year and ten months. Eduardo appeals, contending there was insufficient evidence to sustain either finding.
The judgment is affirmed.

Defendant appeals from the judgment entered following his conviction, by jury trial, for aggravated assault by a life prisoner, with prior serious felony and Three Strikes enhancement findings (Pen. Code, SS 4500, 667, subd. (a)(i)). Sentenced to state prison for 22 years to life, Jacobs claims there was trial and sentencing error. The judgment is affirmed.