CA Unpub Decisions

A jury convicted Joseph Garcia of identity theft of Diane Vuong (count 1; Pen. Code, § 530.5, subd. (a)),[1] felony theft of Diane Vuong’s access card (count 2; § 484e, subd. (d)), felony theft of Bin Liu’s access card (count 3; § 484e, subd. (d)), and forgery by possessing a completed check (count 4; §§ 457, subd. (c); 473, subd. (a)). The trial court found that Garcia suffered a prior conviction that qualified as a strike and as a prior conviction with a prison term. (§§ 667, subd. (b); 1170.12, subd. (b); § 667.5, subd. (b).)
The trial court granted Garcia’s motion to treat his access card theft convictions in counts 2 and 3 as misdemeanors pursuant to Proposition 47. (See § 1170.18.) The court then sentenced Garcia to a term of six years on his identity theft conviction in count 1 comprised of the three year high term, doubled for the prior strike. The court sentenced Garcia to a consecutive 16-month term on his forgery conviction in count 4 comprised

A jury convicted petitioner Tremayne Collier of first degree murder and two counts of robbery, and found arming allegations to be true. (Pen. Code, §§ 187, 212.5, subd. (c), 12022, subd. (a)(1).)[1] The jury found a robbery special circumstance allegation not to be true. (§ 190.2, subd. (a)(17)(A).) With priors, petitioner was sentenced to an aggregate term of 13 years plus 51 years to life. We affirmed the judgment on appeal, and the Supreme Court subsequently denied review. (People v. Collier (Aug. 30, 2006, A108751) [nonpub. opn.], review den. Dec. 13, 2006, S147017.)

In these three consolidated criminal appeals,[1] defendant Christopher Mancinas raises no issues in the first case, No. SCR498868; asks us to reduce his conviction on one count of cocaine possession from a felony to a misdemeanor and remand for resentencing under Proposition 47 in the second case, No. SCR590577; and in the third case, No. SCR595589, seeks reversal of his conviction for actively participating in a criminal street gang under Penal Code section 182.66, subdivision (a) [2] for lack of sufficient evidence. We conclude Mancinas’s appeals in Nos. SCR498868 and SCR590577 are procedurally barred and affirm those convictions. We further conclude there is substantial evidence to support the conviction in No. SCR595589 and affirm in that case as well.

This is the third appeal in this case we have considered from plaintiff Fullerton Medical Group (Fullerton) arising out of its legal malpractice case against defendants Sideman & Bancroft LLP and one of its partners, Robert L. Leberman (collectively, “Sideman”). Fullerton had retained Sideman to provide legal advice regarding an antitrust claim against several health care providers: Brown & Toland Medical Group, Brown & Toland Physician Services Organization, California Pacific Medical Center, California Pacific Medical Services organization, and Sutter Health System (collectively, “business competitors” or “competitors”). It claims Sideman lost documents Fullerton entrusted to Sideman that were critical in proving its competitors violated antitrust laws. Following a jury trial, the trial court entered judgment in favor of Sideman.
On appeal, Fullerton claims the trial court erred in several of its jury instructions and in excluding evidence of an allegedly

If this has been A.L.’s first encounter with SSA, things might have turned out differently. A.L. made progress in her programs and with her therapy between detention and the section 366.26 hearing. Unfortunately, however, A.L. had a track record. This was the third time in less than three years Aiden had been detained because of A.L.’s drinking and the third time she had made progress only to relapse in a way that endangered Aiden. The previous two times, Aiden had been returned to her. This time he was not.
We cannot say the juvenile court abused its discretion when it decided that A.L. had not presented the prima facie case of changed circumstances required to qualify for a hearing under section 388. And substantial evidence supported the juvenile court’s decision that the beneficial relationship exception of section 366.26(c)(1)(B)(i) did not apply to the case. Accordingly we must affirm the court’s decisions.

As to Mother’s appeal, SSA agrees with Mother that reversal is necessary for thelimited purpose of ICWA compliance. We will reverse and remand for that purpose but otherwise affirm. The juvenile court did not abuse its discretion in determining that the detriment to M.C. from terminating the parent‑child relationship between Mother and M.C. did not outweigh the benefit to M.C. from adoption. We therefore affirm the order finding the parental benefit exception did not apply.
As to S.L.’s appeal, we conclude that SSA did not err by failing to conduct a relative placement assessment or that any error by the juvenile court in not ordering SSA to conduct such an assessment was harmless in light of the court’s ultimate decision to have S.L. and Sh.L. assessed, to have a bonding study conducted, and to hold an evidentiary hearing on S.L.’s request for placement. Finally, the juvenile court did not err in making the difficult decision to deny S.L.’s request for placement and t

An employer may be vicariously liable for the torts its employee commits while acting within the scope of his employment. Scope of employment is generally a question of fact. Here, the trial court’s decision to dispose of the case by summary judgment as a matter of law was improper. However, defendants met their burden to establish plaintiffs cannot prove negligence, so they are entitled to summary adjudication on the negligence causes of action. We do not reach the alter ego issue because the trial court should rule in the first instance. Finally, we find no error in defendants’ notice of the summary judgment hearing. We reverse the judgment and remand to the trial court for further proceedings consistent with our opinion.

A jury convicted defendant Frank William Evans of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 1) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2). Defendant pleaded guilty to misdemeanor driving without a valid license (Veh. Code, § 12500, subd.(a); count 6) and driving without registration, an infraction (Veh. Code, § 4000, subd. (a)(1); count 7).[1]Defendant admitted the allegations he had suffered three prior convictions for robbery (Pen. Code § 213.5 [code was repealed in 1986; see Stats. 1986, ch. 1428, § 5]) in August 1985.[2] Additionally, the court found true allegations defendant had suffered a prior conviction for burglary (§§ 459-460, subd. (b)) in June 1977. These prior convictions qualified as strike offenses.
Before sentencing, defendant filed a motion to dismiss the strikes pursuant to section 1385, subdivision (a), and People v. Superior Court (Romero) (1996) 13 C

A jury convicted Armando Montelongo Acosta of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(l); all further undesignated statutory references are to the Penal Code; count 1), two counts of resisting arrest (§ 148, subd. (a)(l); counts 2, 3), and possession of burglary tools (§ 466; count 4). The court found Acosta had a prior strike conviction (§§ 667, subds. (d), (e)(l), 1170.12, subds. (b)-(c)(l)) and had served a prior prison term (§ 667.5, subd. (b)). The court sentenced Acosta to six years.
Acosta challenges the sufficiency of the evidence to prove he committed assault with a deadly weapon, and the court’s failure to give instructions on simple assault as a lesser included offense. We find no merit in either contention and affirm the judgment.

Defendant nowclaims on appeal that the trial court erred by finding that a violation of section 496d does not qualify for resentencing under Proposition 47 because (1) Proposition 47 redefines all theft-related offenses with the value of the property under $950 as misdemeanors; and (2)if this court finds section 496d was not affected by Proposition 47, the omission from Proposition 47 violated his equal protection rightsbecause those convicted of receiving stolen property with a value less than $950 under section 496, subdivision (a), are only guilty of a misdemeanor.
A conviction for receiving a stolen motor vehicle in violation of section 496d is not an eligible offense under Proposition 47. Moreover, it does not offend principles of equal protection to treat a defendant who receives a stolen vehicle, whether or not it is valued less than $950, differently than a person who receives stolen property of other kinds.We affirm the denial of the Petition.

After a jurisdictional hearing, the juvenile court found defendant and appellant G.M. (minor), a minor, violated Penal Code section 148.5, subdivision (a), a misdemeanor, by knowingly making a false police report. (Welf. & Inst. Code, § 602.)[1]The juvenile court placed minor on summary probation.Minor raises three issues on appeal: (1) there is not substantial evidence supporting the finding that she knowingly made a false police report;(2) the juvenile court erred by denying her motion to dismiss (§ 701.1);and (3) three of her probation conditions need to be modified.We affirm with directions.

Heriberto Rivas appeals from the judgment of conviction entered after a jury found him guilty of first degree murder (Pen. Code,[1] § 187, subd. (a)), and found true the allegation he personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b). After the jury returned its verdict, Rivas admitted he served a prior prison term within the meaning of section 667.5, subdivision (b), and also admitted he suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). The court sentenced Rivas to state prison for six years plus 25 years to life.
Rivas appeals, contending the court prejudicially erred in failing to instruct the jury sua sponte on the lesser included offense of voluntary manslaughter based on heat of passion. We disagree and affirm the judgment.

Heriberto Rivas appeals from the judgment of conviction entered after a jury found him guilty of first degree murder (Pen. Code,[1] § 187, subd. (a)), and found true the allegation he personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b). After the jury returned its verdict, Rivas admitted he served a prior prison term within the meaning of section 667.5, subdivision (b), and also admitted he suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). The court sentenced Rivas to state prison for six years plus 25 years to life.
Rivas appeals, contending the court prejudicially erred in failing to instruct the jury sua sponte on the lesser included offense of voluntary manslaughter based on heat of passion. We disagree and affirm the judgment.

This appeal arises from the trial court's order granting a defense summary judgment motion in an insurance coverage action. (Code Civ. Proc., § 437c.) Plaintiff and appellant Jahangir Ahmadpoor (Father),as the legal owner of an automobile repair business named European Coach (the business or Plaintiff), sued its commercial property insurance carrier, Farmers Insurance Company (Truck), on breach of contract theories.After a 2012 burglary at the business, Father asked his son, Syamack Ahmadpoor (Son or "Mack Poor"), the authorized operator of the family business, to file and pursue a claim for over $450,000 in policy proceeds for tools that were stolen andfor lost profits due to business interruption. After investigation, Truck denied the claim on the basis that the business's representatives made several types of material misrepresentations during the processing of the claim, in breach of the policy terms. Truck's summary judgment motion contended this conduct v