CA Unpub Decisions

San Diego County Department of Child Support Service (County) moved for an order to increase the child support obligation of Christopher Maki. The court order granted only an $11 per month increase, raising Christopher's support obligation to $636 per month, rather than raising his support obligation to the "guideline" amount of $953 per month. The court allowed Christopher two "hardship" deductions to reflect his financial burden to support children with whom he currently lived. County appeals, asserting the order must be reversed because the court did not make the requisite findings to support the hardship deductions and the omission was prejudicial.

A modification decision.

This case arises out of a series of burglaries, forcible sex crimes, and robberies that Justin Samuel Lowe committed in the City of Riverside between November 2003 and October 2006. Lowe's identity was established by fingerprint evidence; witness identification; and, of particular importance in this appeal, his unique DNA profile. That profile was derived from a buccal (inner cheek) swab sample taken from him without a warrant in October 2006, while he was under lawful arrest for one of the sex crimes charged in this case, as authorized by the provisions of Penal Code[1] sections 296, subdivision (a)(2)(C) (hereafter section 296(a)(2)(C)) and 296.1, subdivision (a)(1)(A) (hereafter section 296.1(a)(1)(A)), as amended effective November 3, 2004, by the passage of Proposition 69 (also known as the DNA Fingerprint, Unsolved Crime and Innocence Protection Act & hereafter referred to as the 2004 Amendment).
Denial of Lowe's Motion In Limine To Suppress DNA Evidence
Lowe brought an opposed motion in limine to exclude "all DNA evidence" the police obtained from him while he was under arrest, claiming the evidence was obtained in violation of the Fourth Amendment to the United States Constitution. The court denied Lowe's suppression motion, finding that he was under lawful arrest when the DNA sample was taken and that the statutory provisions authorizing the buccal swab were constitutional.

A jury convicted defendant Richard Miller of carjacking (count one), second degree robbery (count two), assault with a firearm (count three), theft of a firearm (count four), and two counts of felon firearm possession (counts five [Smith & Wesson handgun] and six [Beretta handgun]). (Pen. Code, §§ 215, subd. (a), 211, 245, subd. (a)(2), 487, subd. (d), former 12021(a)(1).)[1] The jury also found, as sentence enhancements, that defendant personally used a firearm during the commission of counts one through three. (§§ 12022.53, subd. (b), 1203.06, subd. (a)(1), 12022.5, subd. (a)(1).)
Sentenced to an unstayed term of 16 years four months, defendant appeals. He contends (1) the evidence is insufficient to support his convictions of carjacking (count one) and felon firearm possession (count six, Beretta); (2) the trial court erred by not instructing on the lesser included offense of simple assault; and (3) the trial court erred in imposing consecutive sentences on the carjacking (count one) and the Smith & Wesson possession (count five). We disagree and shall affirm the judgment.

An altercation over deadly threats to a pet cat escalated, leading to a fight between the cat’s owner, Brynda Delong, and her brother, defendant Ricky Darwin Kirby. Defendant’s elderly mother, Viola Kirby, entered into the fray and the situation swiftly deteriorated. An information charged defendant with assault, dissuading a witness from testifying, threatening to commit a crime that would result in the infliction of great bodily injury on another, and elder abuse. (Pen. Code, §§ 245, subd. (a)(1), 136.1, subd. (c)(1), 422, 368, subd. (b)(1).)[1]
A jury found defendant guilty of all counts except one count of making criminal threats against defendant’s mother. Sentenced to 20 years in state prison, defendant appeals, challenging the sufficiency of the evidence to support his conviction for assaulting Brynda and arguing the court erred in instructing on causation. We shall affirm the judgment.

A jury convicted defendant of willful failure to register as a sex offender within five working days of his birthday based in part upon counsel’s stipulation that he had been “convicted of a violation of Penal Code section 243.4, Sexual Battery,” a registerable offense. Defendant claims that he was prejudiced by the failure of his attorney to offer a stipulation that he was convicted of a felony requiring annual registration within five days of his birthday.
We do not understand in what manner defendant was prejudiced by the different forms of stipulation since he admitted that he was required to register and he makes no claim that the form of the stipulation affected his failure to register. That left only the claim that the failure to register was not willful. We disagree and shall affirm the judgment.

Defendant JPMorgan Chase Bank, N.A. (Chase), repossessed a 2003 Chevrolet Silverado that plaintiff Jennifer Bare purchased with Chase financing. Bare brought a claim for breach of oral and written contract and fraud against Chase. The trial court sustained Chase’s demurrer to Bare’s second amended complaint without leave to amend. Bare, proceeding in pro. per., presents a barrage of challenges to the court’s decision. We shall affirm the judgment.

Daniel V. Flores appeals from a judgment of conviction and sentence that was imposed after he entered a no contest plea to a robbery charge and admitted related allegations. His attorney has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.

Ramiro Torrez Hernandez (Hernandez) appeals from a judgment of conviction and sentence imposed after he entered a plea of no contest to the charge of possession of methamphetamine (Health & Saf. Code, § 11377). He contends the minute order of sentence must be stricken to the extent it requires him to pay a presentence report fee, because the court did not include that fee in its oral pronouncement of sentence. We will direct the trial court to modify the minute order, and we will affirm the judgment in all other respects.

After pleading no contest to one count of committing lewd acts on a child and one count of possession of child pornography (respectively, Pen. Code, §§ 288, subd. (a), and 311.11, subd. (a))[1], appellant was denied probation and, pursuant to a negotiated disposition, was sentenced to a total term of imprisonment of three years and eight months on the two counts. Per his brief to us, he appeals from that conviction pursuant to People v. Wende (1979) 25 Cal.3d 436. However, his actual appeal is from an order of the trial court denying his pre-plea motion to suppress evidence. Such an appeal is specifically authorized by section 1538.5, subdivision (m), and California Rules of Court, rule 8.304(b)(4)(A). We have reviewed the record and the law regarding appellant’s motion to suppress and affirm the trial court’s order.

Mark Robinson, III, a faculty member and former administrator at City College of San Francisco (the College), appeals from a grant of summary judgment to respondent San Francisco Community College District (the District). Robinson sued the District and a number of individual defendants.[1] His complaint included a number of counts, but the only one before us is his cause of action for unlawful retaliation under Labor Code section 1102.5. Robinson alleged that after he filed a claim against the District, the College’s chancellor retaliated against him by recommending to the College’s board of trustees that Robinson be terminated. Robinson further alleged the District retaliated in other ways, such as by underpaying him for accrued vacation leave and preventing his selection for a position as dean.
The District moved for summary judgment, arguing Robinson had suffered no adverse employment action and contending he could show no causal link between the filing of his claim against the District and the alleged retaliatory acts. The trial court agreed with the District and granted the motion for summary judgment.

Appellant Umar R. Hudson was convicted after a jury trial of one count of first degree murder (Pen. Code, § 187, subd. (a)), two counts of lewd acts on a child (id., § 288, subd. (a)), one count of forcible oral copulation (id., former § 288a, subd. (c)(2)), and one count of aggravated sexual assault of a child (id., § 269, subd. (a)(4)). On appeal, appellant challenges (1) the trial court’s denial of his severance motion, and (2) a jury instruction regarding false or misleading statements. We reject these challenges and affirm.

Defendant Brady, Vorwerck, Ryder & Caspino appeals from the denial of its special motion to strike plaintiff HFOP City Plaza, LLC’s complaint for declaratory relief. (Code Civ. Proc., § 425.16; all further statutory references are to this code unless otherwise stated.) Defendant contends the trial court erred in finding it had not met its burden under the first prong of the analysis to demonstrate the complaint was based on protected activity. It also requests judicial notice of an Orange County Register news article dated January 15, 2010, contending it shows plaintiff cannot sustain its burden to establish a probability of prevailing on the merits. Plaintiff opposes the request on the ground the news article is irrelevant to the issues on appeal. We agree and deny defendant’s request for judicial notice.

Loren Michael Zwick filed a timely appeal from convictions for first degree burglary and grand theft following a jury trial. The trial court also found him in violation of probation and sentenced him to the low term of two years for the burglary and a one-year consecutive term for the violation of probation. Sentence for grand theft was stayed pursuant to Penal Code section 654.[1]
We appointed counsel to represent Zwick on appeal. Counsel filed a brief that set forth the procedural history and facts of the case with citations to the record in accordance with Anders v. California (1967) 386 U.S. 738 and People v. Wende (1979) 25 Cal.3d 436. Counsel did not argue against the client, but advised the court no issues were found to argue on Zwick’s behalf, although counsel identified five potential claims for our consideration. Zwick was given 30 days to file written argument on his behalf. He did so, but not within the time period given. In any event, we have considered each of the points raised and find none persuasive. The judgment is therefore affirmed.