CA Unpub Decisions

Valentin Aguilar was convicted of seven counts of lewd acts on his daughter, who was 11 or 12 years old at the time. He was also convicted of one count of an attempted lewd act on her. He was acquitted of having used a knife during the commission of the lewd acts. His overall sentence was 18 years.

Plaintiff Cheree Vega filed a complaint in Orange County Superior Court alleging retaliation in violation of the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.) (FEHA), wrongful termination in violation of public policy, and violation of Labor Code section 226, subdivision (f), after she was terminated from her employment at Frandeli Group, LLC (Frandeli). Frandeli moved to compel arbitration, arguing that Vega had signed a valid arbitration agreement (the agreement) at the time she was hired. The trial court found the agreement “permeated with unconscionability” and declined to enforce it. We agree with the trial court that the agreement was unconscionable, and therefore affirm.

A juvenile court petition (Welf. & Inst. Code, § 602) filed February 22, 2012, alleged minor J.T. (born in July 1994) committed second degree robbery against Hugo G. on October 5, 2011. At trial in October 2012, Hugo G. testified that around 6:00 p.m. on a rainy October 5, 2011, he exited a bus near First and Bristol Streets in Santa Ana and walked east. He noticed two men walking behind him. After a few blocks, the men came up alongside him and the younger of the two said, “Give me your stuff.” Hugo ignored him, but the younger man pulled on the gold chain Hugo wore around his neck. The clasp broke as they struggled over the chain. The assailant called to his companion, “Sam, help me out.” “Sam” punched Hugo in the eye, and Hugo released his grasp on the chain. The men fled with the broken chain. At some point during the incident, the younger man removed his gray sweatshirt. Hugo called 911 but did not provide a description of his assailants. Police officers responded to the scene. A few months later, an officer showed Hugo several sets of photos. He identified minor’s photo as “look[ing] similar” to the younger man although he “was not too sure.” He could not identify minor in court.
Detective Adrian Silva testified that in February 2012 he compiled a six-pack photographic lineup and showed it to Hugo. Hugo circled minor’s picture as looking “similar” to the robber. The next day, Silva arrested minor and interviewed him at the police station. Silva asked about the October 5 incident, and minor stated he and a friend named Sam were on the same bus as Hugo, and hatched a plan to steal his chain. Minor had difficulty seizing the chain because Hugo grabbed his arm and collar. Minor admitted he abandoned his torn sweatshirt at the scene. Sam eventually sold the chain for several hundred dollars at a pawnshop, but did not share the proceeds with minor.
The juvenile court denied minor’s motion to dismiss for insufficient evidence (Welf. & Inst. Code, § 701.1 [juvenile court shall order the petition dismissed at close of petitioner’s case if upon weighing the evidence court finds minor is not a person described by Welf. & Inst. Code, § 602]) and found the allegations of the petition true beyond a reasonable doubt. The court continued minor as a ward of the court on supervised probation and directed him to serve 245 days in custody, with credit for time served.[1] The court directed him to pay a restitution fine of $100 and victim restitution as set by the probation department.

A jury convicted Jorge Miguel Gallegos of one count of unlawful sexual intercourse or sodomy with a child under age 10 (Pen. Code, § 288.7, subd. (a); count 1),[1] three counts of oral copulation or sexual penetration of a child under age 10 (§ 288.7, subd. (b); counts 2, 3, 5), one count of dissuading a witness (§ 136.1, subd. (b); count 4), and one of lewd and lascivious acts on a child under age 14 (§ 228, subd. (a); count 6). The trial court sentenced him to a total indeterminate term of 40 years to life, plus a determinate term of 8 months.
Gallegos gave a statement after his arrest. As he did in the trial court, Gallegos claims his statements were obtained in violation of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and coerced. The trial court rejected his arguments and admitted evidence of Gallegos’s statement at trial. We conclude the trial court’s ruling is correct and affirm the judgment.

The court continued appellant, Jordan S., as a ward of the court after Jordan admitted allegations in a supplemental petition (Welf. & Inst. Code, § 777) that he violated his probation. On appeal, Jordan contends the court abused its discretion when it committed him to the Division of Juvenile Justice (DJJ). We affirm.

Ezekiel Ladonne Howard was convicted of assault with a firearm and shooting at an occupied vehicle. He contends that the pattern instruction given to the jury on eyewitness identifications, CALCRIM No. 315, was erroneous and unconstitutional because it stated that a witness’s level of certainty in making an identification is a relevant consideration. Howard says social science research shows no correlation between an eyewitness’s degree of certainty and the accuracy of the witness’s identification.
Howard did not object to the instruction at trial and he has not demonstrated that his substantial rights were affected by it. Consequently, he has forfeited the issue and it is unnecessary for us to consider the merits of his contention about the lack of scientific support for the instruction. The judgment will be affirmed.

Appellant, Larry Frank Rodriguez, contends his conviction must be reversed because the trial court permitted the prosecutor to commit constitutional error, trial counsel was ineffective for failing to object to the error, and the trial court erroneously gave the flight instruction. We find any error harmless beyond a reasonable doubt and affirm the judgment.

Following a plea to a violation of Penal Code[1] section 273.5, subdivision (a) and the imposition of a four-year sentence, defendant Deontray Deshon Thomas appeals his conviction. He argues the trial court abused its discretion when it granted his motion made under Faretta v. California (1975) 422 U.S. 806 (Faretta) because it failed to consider whether he lacked the mental capacity to represent himself at trial. Defendant also contends that failure resulted in an invalid waiver, thus, denying him his constitutional right to counsel. We affirm the judgment.

R.S. (mother) has three children. In January 2006, when this dependency was originally filed, the oldest child was four, the middle child was two, and the youngest child was in utero. In December 2012, when the juvenile court made the orders that are challenged in this appeal, the children were eleven, nine, and six, respectively. The mother has been given seven years to reunify successfully, but she has failed to do so.
The challenged orders denied the mother’s “changed circumstances” petition (Welf. & Inst. Code, § 388) and reduced her visitation. At that time, a permanency planning hearing (Welf. & Inst. Code, § 366.26) had been set, but it had not yet been held. When the mother appealed, we stayed the hearing.
The mother’s changed circumstances petition merely alleged that she was in therapy; however, she had been in therapy, on and off, throughout the dependency. Thus, the petition fell woefully short of suggesting that she would ever be able to reunify. The juvenile court properly reduced the mother’s visitation because it was interfering with the children’s relationship with their prospective adoptive parents. This appeal wholly lacks merit. We therefore affirm the orders and vacate the stay. It’s time to get this show on the road.

A jury found defendant and appellant James Ray Scott, Jr., guilty of (1) three counts of robbery (Pen. Code, § 211);[1] (2) one count of conspiring to commit a crime (§ 182, subd. (a)(1)); and (3) two counts of actively participating in a criminal street gang (§ 186.22, subd. (a)). As to the first count of robbery, the jury found true the allegations that (1) it was a street gang crime and defendant carried a firearm during the commission of the offense (§ 12021.5, subd. (a)); (2) defendant personally used a firearm during the commission of the offense (§ 12022.53, subd. (b)); and (3) the crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)). For the second and third robbery convictions, the jury found true the allegations the crimes were committed to benefit a criminal street gang. (§ 186.22, subd. (b).)
Defendant admitted he was on bail when he committed the third robbery offense (§ 211) and second active gang participation offense (§ 186.22, subd. (a)). (§ 12022.1.) Defendant also admitted suffering (1) a prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(2)(A)); and (2) a prior serious felony conviction (§ 667, subd. (a)). The trial court sentenced defendant to prison for a term of 47 years, 8 months.
Defendant contends the trial court erred by (1) not severing the November 2008 charges from the January 2007 charges, and (2) not severing the gang allegations. Defendant asserts his trial counsel was ineffective for (1) not requesting bifurcation of the gang allegations, and (2) failing to move for a new trial. We affirm the judgment.

Defendant Theo Delagarza is serving three years in local custody after pleading guilty to assaulting a man with a knife and violating probation twice. Defendant argues he is entitled to pre-sentence conduct credits because, although he initially waived the right to receive them as part of the initial plea bargain, the trial court later altered the terms of his probation to allow for conduct credits if he successfully completed the Inroads program in county jail. We conclude that defendant is not entitled to the conduct credits because, although he completed the Inroads program, he violated his probation only a day after his release, and thus defeated the entire objective of the agreement under which he was to receive the conduct credits.

Defendant Quadair Tyshawn Colvin appeals following a guilty plea to one felony count of driving under the influence of alcohol with a blood-alcohol level of 0.15 or more, causing great bodily injury, and two related misdemeanor counts and various allegations. His original guilty plea, to one misdemeanor count of driving under the influence, was set aside on motion of the prosecution after the prosecutor belatedly realized that one victim, Ann G., had suffered a serious injury, specifically a broken arm.
After the motion was granted, the prosecution filed a first amended complaint, charging defendant with, among other charges, three felony counts of driving under the influence while having a blood-alcohol level in excess of 0.15 percent, causing bodily injury to two victims and causing great bodily injury to one victim. (Veh. Code, §§ 23153, subds. (a), (b), 23578, counts 1-3; Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8), counts 1 & 2.) Defendant ultimately pleaded guilty to one felony and two misdemeanors. (Further details of the first amended complaint and the plea are set forth below.)
Defendant now seeks either to have his original misdemeanor plea reinstated or his second guilty plea vacated because the second plea was not knowing, intelligent and voluntary due to ineffective assistance of counsel, and because the trial court was without jurisdiction to enter the second plea because it lacked jurisdiction to vacate the original plea.
We will affirm the judgment in part and remand with directions.

Defendant Raphael Dennis Lyons appeals following his conviction on multiple counts. He asserts that the trial court erred by failing to hold a Marsden[1] hearing in connection with his motion for new trial and that a condition of his probation was unconstitutionally overbroad.
We will affirm the judgment.

This case arises from a dispute between neighbors. Wayne Siggard (Siggard) caused land he owned to be graded. Siggard’s neighbors, Marianne Hudack (Marianne) and Larry Hudack (Larry)[1] (collectively “the Hudacks”), found the grading to be problematic. In a fifth amended complaint, the Hudacks sued (1) Siggard; (2) Monteleone Contractors, Inc. (Contractor); (3) Ryan Monteleone, an individual doing business as Monteleone Excavating (Monteleone); (4) La Cresta Property Owners Association (the Association); (5) Sergio Ochoa; and (6) Laura Ochoa. The causes of action concerned (1) a violation of the California Environmental Quality Act (CEQA); (2) trespass; (3) encroachment; (4) nuisance per se; (5) private nuisance; (6) negligence; (7) breach of fiduciary duty; (8) negligent misrepresentation; (9) fraud and deceit; (10) a request for declaratory relief; (11) a request for injunctive relief; and (12) a request for cancellation of written instruments.
Siggard filed a cross-complaint against (1) Marianne; (2) Larry; (3) the Larry J. and Marianne S. Hudack Trust (the Trust); (4) the County of Riverside (the County); and (5) the County of Riverside Planning Department. The cross-complaint included causes of action for (1) a CEQA violation; (2) trespass; (3) encroachment; (4) nuisance; (5) civil conspiracy to defraud; (6) defamation, slander, and libel; (7) interference with a prospective economic advantage; (8) slander of title; and (9) intentional infliction of emotional distress.