CA Unpub Decisions

Defendant Salvador Para Rodriquez was convicted of first degree murder (Pen. Code,[1] § 187, subd. (a); count 1) and carrying a sharp instrument while confined in a penal institution (§ 4502, subd. (a); count 2). As to count 1, the jury found true special circumstance allegations of murder perpetrated by means of discharging a firearm from a motor vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)), and murder perpetrated by an active participant in a criminal street gang and carried out to further the activities of the gang (id., subd. (a)(22)). The jury also found true gang enhancement (§ 186.22, subd. (b)(1)) and firearm discharge enhancement (§ 12022.53, subd. (e)(1)) allegations; however, the jury found not true the allegation that defendant personally and intentionally used or discharged a firearm causing death (§ 12022.53, subd. (d)). Defendant was sentenced to life without the possibility of parole (LWOP), plus 25 years to life for the firearm discharge enhancement, and 10 years for the gang enhancement on count 1, and a consecutive three-year term on count 2. Defendant was also ordered to pay restitution and various fees, fines, and assessments.
On appeal, defendant contends the trial court prejudicially erred in admitting multiple hearsay, his trial counsel rendered ineffective assistance of counsel by failing to object to several evidentiary errors, and prosecutorial misconduct during closing argument denied him a fair trial. Defendant also raises a number of claims of sentencing error. We will order the 10-year gang enhancement on count 1 to be stricken but otherwise affirm.

J.O. (father) and C.N. (mother) appeal an order terminating their parental rights to their daughter, O.N. Both assert that the court should have applied the beneficial parental relationship exception to the statutory preference for adoption, and J.O. also asserts that he was denied substantive due process because the termination of his parental rights was based solely on C.N.’s mental illness rather than on his own unfitness as a parent.
We will affirm the judgment.

A jury found defendant and appellant Luke Caines Jr., guilty of (1) four counts of kidnapping for purposes of robbery (Pen. Code, § 209, subd. (b)(1));[1] (2) six counts of robbery (§ 211); (3) and one count of dissuading a witness (§ 136.1, subd. (c)(1)). Defendant admitted suffering (1) a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)); (2) a prior serious felony conviction (§ 667, subd. (a)); and (3) three prior convictions that resulted in prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to prison for a determinate term of 19 years plus an indeterminate term of 14 years to life.
Defendant raises four issues on appeal. First, defendant contends substantial evidence does not support two of his robbery convictions (§ 211). Second, defendant contends his robbery sentences must be stayed pursuant to section 654 because the crimes involve the same intent as his convictions for kidnapping for purposes of robbery. The People concede defendant is partially correct, in that the sentences for the postkidnapping robberies should be stayed, but the sentences for the prekidnapping robberies should not be stayed.
Third, defendant asserts the trial court misunderstood it had the discretion to impose a concurrent, rather than a consecutive, sentence for the crime of dissuading a witness. The People agree with defendant’s third contention. Fourth, defendant contends the trial court erred by imposing fees for all counts charged, even though defendant was found not guilty of some counts. The People agree with defendant’s fourth contention.[2] We reverse defendant’s sentence in Count 14, direct the trial court to resentence defendant for Count 14, and modify other aspects of defendant’s sentence and fees, but otherwise affirm the judgment.

A jury convicted defendant Dewayne Maurice Riley of 12 offenses arising from the gang-related robbery of about $169 from a Jack in the Box restaurant, while accompanied by codefendant Calvin Ray Vance, a fellow gang member.[2] Defendant was the gunman. The court sentenced defendant to an aggregate prison term of 243 years (225 years to life plus 18 years).
On appeal defendant challenges the five convictions of aggravated kidnapping for robbery (§ 209, subd. (b)(1), counts 1 through 5). We reverse defendant’s conviction on count 1 for aggravated kidnapping and order the trial court to impose the stayed sentence for robbery (§ 211) on count 6. Otherwise, we reject defendant’s contentions and affirm the judgment.

Defendant Linda Alexander appeals her conviction on three counts of forgery and other offenses. We find no error requiring reversal of the conviction. We do conclude, however, that remand for resentencing is required.

Respondent General Construction Management Company (General), a general contractor, completed a 40-unit condominium project for appellant Cathedral Group, Ltd. (Cathedral), a real estate developer, after another contractor left the job. The parties signed a “Cost of the Work Plus a Fee” contract on American Institute of Architects (AIA) Document A114 (the AIA contract). The AIA contract did not expressly authorize General to be paid for “general conditions” expenses, but section 7.7.1 authorized payment for “[o]ther costs incurred . . . to the extent, approved in advance in writing” by Cathedral.
A dispute arose concerning whether the parties agreed, before they signed the AIA contract, that General would be paid the fixed sum of $42,640 per month for its estimated general conditions expenses, including its project-related staff time and off-site office overhead. Cathedral claimed there was no such parol agreement: the AIA contract governed the issue; the AIA contract did not authorize payment for any estimated general conditions expenses; and no off-site office overhead or off-site staff time was either identified in or compensable under the AIA contract.
General claimed the parties’ principals, Gary Covel for General and Moe Nasr for Cathedral, agreed General would be paid $42,640 per month, its estimated general conditions expenses, before the AIA contract was signed, and that Nasr confirmed the agreement both in writing and by his conduct. Thus, General argued, section 7.7.1 of the AIA contract, the “other costs” provision, required Cathedral to pay General the agreed upon, fixed monthly sum for estimated general conditions expenses.
Following a bench trial, the trial court found in favor of General and awarded it $401,035.85, plus interest, for Cathedral’s breach of the AIA contract. Among other things, the court credited Covel’s testimony that he and Nasr agreed General would be paid $42,640 per month for general conditions expenses, with no requirement for “backup” documentation, and found Nasr’s testimony denying the agreement not credible.
Cathedral asserts three claims of error on this appeal: (1) the trial court misinterpreted the AIA contract and violated the parol evidence rule in construing section 7.7.1 as authorizing payment for General’s estimated general conditions; (2) the AIA contract is inconsistent with and therefore precludes the court’s additional finding that Cathedral was barred from denying the prior oral agreement based on waiver and estoppel principles; and (3) General failed to prove its damages with competent evidence.
We interpret the AIA contract de novo and conclude, with the aid of extrinsic evidence, including the principal’s testimony, that section 7.1.1 is reasonably susceptible to the interpretation urged by General: it authorizes payment for General’s estimated general conditions expenses. We also conclude substantial evidence supports the trial court’s conclusion that the parties did in fact intend and agree that section 7.7.1 required Cathedral to pay General $42,640 per month for general conditions expenses. We reject Cathedral’s other claims of error and affirm the judgment in all respects.

Marco V. seeks review of juvenile court findings and orders denying family reunification services to him under Welfare and Institutions Code section 361.5, subdivision (a) and setting a section 366.26 hearing. Marco asserts he has a fundamental right to parent his child. He argues the application of section 361.5, mandating reunification services to mothers and statutorily presumed fathers, and Family Code section 7611, describing a presumed father, contravenes his rights to due process and equal protection under the law as a biological father who cannot attain presumed father status under statutory criteria. Marco maintains that he and his child's mother and presumed father are similarly situated and therefore under principles of equal protection, he is entitled to court-ordered family reunification services.[2]

At the 12-month review hearing in the juvenile dependency case of child Kayla W., the court terminated reunification services for her father, Elliot W., and continued reunification services for her mother, Renee H.[1] Elliot appeals, contending the court failed to consider whether it was in Kayla's best interests to continue his services. We affirm.

A workers' compensation judge (WCJ) concluded that Brandon Clark, an employee of South Coast Framing, Inc. (South Coast), died as a result of medications he took after suffering an industrial injury. South Coast and its insurance carrier, Redwood Fire and Casualty Company administered by Berkshire Hathaway Homestate Companies (together with South Coast, petitioners), petitioned for writ of review after the Workers' Compensation Appeals Board (the Board) denied reconsideration of the WCJ's decision in favor of Brandon's wife and children. We conclude the Board erred in denying reconsideration because the WCJ's decision was not supported by substantial evidence. Accordingly, the order denying reconsideration is annulled and the matter is remanded to the Board with directions to enter a new order denying the claim.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, Brandon suffered back, head, neck and chest injuries when he fell from a roof while working for South Coast. Brandon's workers' compensation physician prescribed amitriptyline, gabapentin (Neurontin) and hyrdrocodone (Vicodin) for his injuries. Brandon was also taking Xanax and Ambien, which were prescribed by his personal physician in January 2009. Xanax was prescribed for "ongoing anxiety," and Ambien was prescribed for sleeping difficulties. Brandon's personal physician noted that Brandon was "having problems sleeping. This [was] occurring at least 3 or 4 times a week . . . . During these times, [Brandon was] not aware of anxiety or . . . pain."
In July 2009, Brandon died from the combined effects of amitriptyline, gabapentin, Xanax and Ambien, and associated early pneumonia. Brandon's wife, Jovelyn Clark, and their three minor children filed a claim for death benefits alleging the death was the result of the injury and industrially prescribed medications.


Petitioners requested an opinion from Dr. Daniel Bressler regarding the cause of Brandon's death. After reviewing various medical records, Dr. Bressler concluded that "[Brandon's] death was secondary to an accidental overdose." In reaching this conclusion, Dr. Bressler stated, "[t]he specific combination of medicines [Brandon] was on, which included Xanax, Ambien, Flexeril, Neurontin, amitriptyline, and hydrocodone, all separately and in combination had the capacity to induce respiratory depression, and even respiratory arrest."

Appointed counsel for defendant John Manuel Gonzales has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal.[1] (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We order the preparation of an amended abstract of judgment to correct a clerical omission and affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On December 29, 2012, Yolo County Sheriff’s Deputy Ryan Mez pulled over a vehicle driven by Geoffrey Bean. Defendant Julianna Wayman was a passenger in the vehicle. Deputy Mez smelled marijuana emanating from the vehicle and, accordingly, detained Bean and defendant. Deputy Mez searched the vehicle and found a loaded .22-caliber semiautomatic Beretta and a loaded .357 Magnum Smith & Wesson revolver (with the serial number scratched off) under the driver’s seat, and a green tactical vest in the backseat.

On January 17, 2013, officers conducting a postrelease community supervision search of defendant Lawrence Van Riley’s residence found 6.3 grams of methamphetamine, $1,200 in cash, Ziploc baggies, a syringe containing 25 cc’s of methamphetamine, and other drug paraphernalia.
Defendant pleaded no contest to possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) Pursuant to the plea agreement, a prior strike allegation was dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The trial court sentenced defendant to three years in state prison, imposed various fines and fees, and awarded 156 days’ presentence credit (78 actual and 78 conduct).
Defendant appeals. He did not obtain a certificate of probable cause.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
On May 16, 2012, Shoua Yang and his wife Ker L. were at his parents’ home. Shoua was sleeping on the couch. Shoua heard loud music from somewhere else in the house; he went to the garage and told his brother, defendant Kai Yang, to turn down the music. The two then got into a physical altercation, during which defendant said to Shoua, “you want to die?” Chur Y., the father of Shoua and defendant, attempted to break up the fight. Shoua believed defendant was being disrespectful to Chur, so Shoua punched defendant in the face. Chur then called 911.
Law enforcement arrived. Shoua reported that defendant had threatened to kill the entire family. Shoua believed the threats and was afraid for himself and his family. Ker also reported that defendant approached her and said, “I’m going to . . . F’ing kill you.” Shoua got in between defendant and Ker, but Ker was “afraid for her life.” Ker believed defendant was capable of killing her and the family. She told law enforcement that defendant had been “terrorizing” Chur and his wife Mai, Ker’s in-laws, since he moved into their home in December 2011. Law enforcement spoke to Mai. She too heard Kai threaten to kill the entire family, and she too was afraid.

Defendant Gregory Dwone Shoulders was convicted, in three separate cases, of transportation of a controlled substance, possession of a controlled substance, possession of drug without a prescription, and inflicting corporal injury on a cohabitant after a previous conviction in violation of Penal Code section 273.5, subdivision (e). Defendant admitted a great bodily injury enhancement, admitted he has served two prior prison terms, and was found to have a prior strike conviction. The trial court denied defendant’s motion to dismiss his prior strike and sentenced him to an aggregate term of 14 years four months in state prison.
On appeal defendant contends, and the People concede, that his sentence must be modified to reduce the consecutive four-year great bodily injury enhancement to one year four months (one-third of the four-year sentence). He also contends the trial court abused its discretion in denying his motion to dismiss the prior strike. We shall modify defendant’s sentence to reflect the one-third term for the great bodily injury enhancement and affirm as modified.