CA Unpub Decisions

While sitting atop a concrete platform in Swan Canyon in the City Heights neighborhood of San Diego, plaintiffs Ricky Hasten-Golston (Hasten) and Bryant Byrd, Jr., (Byrd) (together Plaintiffs) were shot and injured by an unidentified male assailant. Plaintiffs asserted premises liability claims against defendant City of San Diego (City) for a dangerous condition of public property and against defendants LB One, LLC (LLC) and Loc Nguyen Corp., dba Payless Property Management (Payless) (together LB One) for negligence. Plaintiffs appeal from summary judgments in favor of the City and LB One (together Defendants).
On appeal, the parties present various arguments on numerous issues associated with the claims raised in the summary judgment motions. The trial court correctly ruled that Plaintiffs did not meet their burden of establishing a triable issue of material fact as to causation, and resolution of that issue is dispositive of the appeal. The Court affirm.

I. B., mother, and R. L., father, of the minors appeal from orders of the juvenile court terminating their parental rights. (Welf. & Inst. Code,[1] §§ 366.26, 395.) Mother contends the juvenile court erred in failing to find she had established the beneficial parental relationship exception to the preference for adoption. Father argues that, if mother’s appeal is successful, the order terminating his parental rights should also be reversed. (Cal. Rules of Court, rule 5.725(a) & (g).) The Court affirm.

In this appeal from the denial of a Penal Code section 1170.126 (Proposition 36)[1] petition for resentencing, appointed counsel for defendant Bernard Wildee has filed an opening brief that sets forth the facts of the case and asks that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, the Court affirm the judgment.

Father Edgar N. appeals from the dependency court’s order terminating his parental rights under Welfare and Institutions Code[1] section 366.26, and selecting adoption as the permanent plan for his five-year-old daughter, Lilyanna N. Father argues the court erred by failing to apply the beneficial-relationship exception set forth in section 366.26, subdivision (c)(1)(B)(1), to the statutory preference for adoption. Finding no error, the Court affirm.

In December 2004 defendant and appellant Fausto Quevedo was sentenced to state prison for two years based on his guilty plea to assault with a deadly weapon (a baseball bat) (Pen. Code, § 245, subd. (a)(1)).[1] On June 11, 2015, defendant filed a petition seeking dismissal of his conviction pursuant to section 1203.4 and reduction to a misdemeanor under section 17. The trial court denied the petition on the basis defendant had been committed to state prison and was therefore ineligible, as a matter of law, for the relief sought in the petition. The Court have completed our review of the record in this case and conclude that appellate counsel satisfied his constitutional obligation by filing a Wende brief.

Defendant Anthony Aguilar Preciado pled no contest to felony driving or taking a vehicle under Vehicle Code section 10851, subdivision (a), and admitted the allegation that he suffered a prior conviction for a serious or violent felony. The court sentenced Preciado to 32 months in state prison. After California voters passed Proposition 47, the Safe Neighborhoods and Schools Act, Preciado petitioned the court for reduction of his felony conviction for driving or taking a stolen vehicle to a misdemeanor. The court denied Preciado’s petition, finding that a violation of Vehicle Code section 10851, subdivision (a), is not a theft offense qualifying for reduction of sentence under Proposition 47. The Court affirm.

Defendant James Maurice Jackson pled guilty to felony forgery and admitted he suffered a prior conviction for a serious or violent felony. Jackson was sentenced to four years in state prison. After California voters passed Proposition 47, the Safe Neighborhoods and Schools Act, Jackson petitioned the trial court for resentencing to reduce his felony conviction to a misdemeanor. The court denied the petition, finding the property at issue was worth more than $950. the Court affirm.

In general, theft is a taking of property without the owner’s consent, “a violation of the victim’s possession without the victim’s consent.” (2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, §14, p. 37.) Under certain circumstances, a taking of property no longer in the victim’s possession is also a crime. Under Penal Code section 485, “One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use . . . without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.” (Pen. Code, § 485.)
The Court reverse and remand with directions to dismiss the petition.

Following a jury trial, defendant Kenneth L. Kimble was convicted of attempted robbery, robbery, and sending a false bomb. Defendant contends that trial counsel failed to investigate, to present exculpatory evidence and to object to DNA evidence in violation of his Sixth Amendment right to effective assistance of counsel; that the court abused its discretion by denying defendant’s motion to strike his prior convictions; that there is insufficient evidence his prior convictions were for serious felonies; and that he was denied the right to testify at his priors trial. The Court affirm.

Under Government Code section 3305, which is part of the Public Safety Officers Procedural Bill of Rights Act (POBRA), a public safety officer has the right to review and respond to “any comment adverse to his interest entered in his personnel file, or any other file used for any personnel purposes by his employer.” The trial court also awarded attorney’s fees to White under Code of Civil Procedure section 1021.5. The County challenges both orders on appeal. The Court affirm.

Plaintiff and Respondent the Department of Managed Health Care (hereafter DMHC) initiated a regulatory action against Defendant and Appellant Jeannette Martello, a licensed physician and board-certified plastic surgeon, (hereafter Appellant) based on Appellant’s practice of “balance-billing” emergency department patients for her plastic surgery services. Appellant, in pro. per., appeals from a judgment entered against her after a bench trial, ordering Appellant to pay civil statutory penalties totaling $562,500 and enjoining her from directly billing patients treated in the emergency room for more than the co-payment, co-insurance and deductibles they are responsible for under their health plan.
We affirm.

Plaintiff and appellant Thomas Gonzales was employed by the City of Long Beach (the City) as an investigator for the Citizen Police Complaint Commission (CPCC). After the City terminated Gonzales’s employment, he sued the City and the CPCC (defendants) for, among other things, retaliation in violation of the California Fair Employment and Housing Act (FEHA) and Labor Code section 1102.5. The trial court granted summary adjudication on four of Gonzales’s five causes of action, and the matter proceeded to jury trial on the single remaining claim, retaliation in violation of the FEHA. The jury rendered a verdict for the City.
Gonzales appeals. He contends the trial court erred by granting the City’s motion for summary adjudication on his Labor Code section 1102.5 “whistleblower” cause of action, and by failing to give three special jury instructions he requested at trial. We conclude the former contention has merit, but the latter does not. Accordingly, Court reversed tr

Craig Patrick Belshaw (appellant) appeals from his plea of no contest to a charge of felony driving with a blood-alcohol level of .08 percent or higher (Veh. Code,[1] § 23152, subd. (b)) and the resultant sentence he received in the above-referenced criminal case.
The Court note that appellant has not obtained a certificate of probable cause, which is required by Penal Code section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. A certificate is not required when the notice of appeal states, as appellant’s does here, that the appeal is based upon the sentence or other matters occurring after the plea that do not affect the validity of the plea. Accordingly, the court have reviewed the whole record pursuant to People v. Wende, supra, 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, focusing upon grounds for appeal arising after entry of the plea. Having done so, we conclude that there is no arguable issue on appeal.

Defendant Joseph Hanania pleaded no contest to willfully evading a peace officer, a felony, and resisting an executive officer in performance of his or her duties, a misdemeanor. He asked to be placed on probation, but the trial court sentenced him to 16 months in prison. On appeal, defendant argues the trial court abused its discretion by sentencing him to prison because it relied on factors that were not supported by the evidence. We disagree and find no abuse of discretion.
Separately, defendant argues the trial court awarded him the wrong amount of presentence custody credits, and asks us to modify the judgment. We agree that defendant is entitled to 23 additional days of presentence custody credits and will instruct the trial court to modify the judgment. As so modified, the Court affirm.