CA Unpub Decisions

Emilson Ladimiro Pena appeals a judgment following conviction of receiving stolen property, possession of false vehicle registration documents, conspiracy to commit grand theft, attempted grand theft (two counts), and giving false information to a police officer, with a finding that he was on bail in an unrelated prosecution at the time he committed the present crimes ("out-on-bail enhancement"). (Pen. Code, §§ 496d, subd. (a), 182, subd. (a)(1), 664, 487, subd. (a), 148.9, subd. (a), former 12022.1, subd. (b)[1]; Veh. Code, § 4463, subd. (a).) We modify the judgment to strike a "no-contact" order, and to award Pena an additional 185 days of presentence conduct credit, reverse and remand for resentencing regarding the out-on-bail enhancement, but otherwise affirm.

A modification decision.

Defendants Whytinnie Lee Gilbert (Gilbert) and Armand Jamall Johnson (Johnson) appeal following their convictions for second degree robbery in violation of Penal Code Section 211.[1] The trial court denied Gilbert’s motion to sever his trial from Johnson’s. The trial court sentenced Gilbert to the midterm of three years for the robbery and one consecutive year under section 667.5, subdivision (b) for having suffered a prior prison term, which he admitted. Gilbert was awarded 68 days actual custody credits and 10 days of conduct credits. The trial court sentenced Johnson to the midterm of three years. Johnson was awarded 41 actual credit days and six conduct days. The defendants were ordered to make restitution in the amount of $200 to the victim to be paid jointly and severally.
We appointed counsel to represent defendants on this appeal. After examination of the record, counsel filed “Opening Briefs” acknowledging that they had been unable to find any arguable issues. On January 2, 2013, we advised Johnson that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On February 28, 2013, we sent Gilbert the same notice. No response has been received to date from either defendant.

Labor Code section 5950 provides that any person aggrieved by a final order, decision, or award of the Workers' Compensation Appeals Board (WCAB) may, within the prescribed time limit, apply to the Court of Appeal for a writ of review. Appellate review is limited to final orders that affect a substantial right or liability of a party. (Duncan v. Workers' Comp. Appeals Bd. (2008) 166 Cal.App.4th 294, 299.) The failure of an aggrieved party to seek judicial review of a final order of the WCAB bars later challenge to the propriety of the order or decision before either the WCAB or the court. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1075-1076 (Maranian); see also Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 532-535.)
This petition for writ of review challenges the WCAB's decision allowing California Insurance Guarantee Association (CIGA) to pursue a claim for reimbursement against State Farm General Insurance Company (State Farm), after the WCAB had previously rejected the claim and CIGA had failed to timely seek judicial review. We conclude that CIGA's claim is barred by principles of res judicata. We annul the WCAB's decision and remand for further proceedings.

Petitioner filed a petition for writ of mandate with a stay request following the trial court’s denial of her motion to dismiss under Penal Code sections 656 and 793. We stayed proceedings in the trial court, requested informal opposition and reply, and gave notice that we may issue a peremptory writ in the first instance. (See Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) We also asked the parties to address certain additional questions. We have received and reviewed the informal opposition, reply, and answers to our additional questions and now partially grant petitioner’s request for a peremptory writ of mandate.

On October 31, 2012, appellant, Anthony E., admitted violating his probation in Tulare County Superior Court case No. JJD065887.
On November 15, 2012, the court committed Anthony to the Tulare County Juvenile Ranch Camp. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

Javier Bautista appeals a judgment denying his petition for writ of administrative mandate that challenged the decision of the State Personnel Board (SPB) upholding the California Department of Corrections and Rehabilitation’s (CDCR) determination to terminate his employment. He challenges the administrative law judge’s finding that his testimony was not credible. He further contends the evidence was insufficient to support the finding that he was dishonest for failing to report the use of force. We reject these contentions and affirm the judgment.

Appellant/plaintiff Phillip Neiman (plaintiff), sued respondent/defendant Motel 6 (defendant)[1] for personal injuries he suffered in an attack by a third party assailant in his motel room.[2] Plaintiff alleged that defendant’s lack of security was the legal cause of his injuries. The trial court granted summary judgment, determining that defendant owed plaintiff no duty to hire security guards or install security cameras because no sufficiently similar prior incidents had occurred on defendant’s premises. While we question the trial court’s ruling, we do not definitively resolve the issues of foreseeability and duty. Instead, we hold that plaintiff failed to raise a triable issue of material on the element of causation. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 (Saelzler).) We therefore affirm, albeit on different grounds than cited by the trial court. (See Code Civ. Proc., § 437c, subd. (m)(2).)[3]

Lozano Smith, Gregory A. Wedner and Scott G. Cross for Defendants and Respondents County of Fresno, Clovis Veterans Memorial District, Fresno Mosquito & Vector Control District and Superior Court of California for the County of Fresno.

Defendant Robert Allen Hammond was charged with assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1)) with a special allegation that he personally used a deadly weapon in the commission of the offense (§ 969f), two counts of making criminal threats (§ 422) with a special allegation that defendant personally used a deadly weapon during the commission of the offenses (§ 12022, subd. (b)(1)), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), corporal injury to a spouse (§ 273.5, subd. (a)), and resisting a peace officer (§ 148, subd. (a)(1)). Prior to trial, defendant pled no contest to the resisting arrest charge. After trial, the jury found defendant guilty of the criminal threats and dissuading a witness charges, but found defendant not guilty of the remaining charges and allegations. The jury also acquitted defendant of all lesser included offenses with the exception of simple assault (§ 240) as it related to the assault by means likely to produce great bodily injury charge; as to that lesser offense, the jury declared it was hopelessly deadlocked and the trial court declared a mistrial. The prosecution subsequently dismissed that count.
The trial court sentenced defendant to a total term of three years four months, consisting of a two-year term for one of the criminal threats charges and consecutive eight-month sentences for each of the remaining charges. Execution of the sentence was suspended and defendant was placed on probation for a three-year term with the condition that he serve 365 days in the county jail.

Defendant and appellant Juan Saenz, Jr., appeals after the trial court denied his ex parte motion for reconsideration of his restitution fine (set at $5,000), based on a claim that the trial court failed to determine his ability to pay the fine imposed, and a claim that his trial attorney was incompetent in failing to object to the restitution order amount, or to advise defendant of his right to appeal the restitution order. We affirm.

Appellants K.E., L.H.1, L.H.2, A.H., S.H., K.H. J.B., and J.J. (collectively “Minors”), appeal the juvenile court’s ruling dismissing the sexual abuse allegations. Minors assert the juvenile court erred by dismissing the sexual abuse allegations because they were supported by substantial evidence. San Bernardino County Children and Family Services (the Department) supports Minors’ contention. We affirm the judgment.

A jury found defendant and appellant Mark Barron, guilty of carrying a loaded firearm in a public place while he was prohibited from carrying a firearm. (Former Pen. Code, § 12031, subd. (a)(2)(D) [eff. Jan. 2000].) The trial court sentenced defendant to prison for a term of one year, four months. Defendant raises three issues on appeal. First, defendant contends there is not substantial evidence that he was in a public place while carrying a firearm. Second, defendant contends the trial court erred by denying his motion to suppress evidence discovered and statements made after an officer trapped defendant and conducted an unlawful search and seizure. Third, defendant asserts the trial court erred by denying his motion to suppress statements made after defendant’s Miranda[1] rights were violated. We affirm the judgment.

Robert D. was accused by a petition filed in the juvenile court of possessing a butterfly knife, alleged as a misdemeanor. (Pen. Code, §§ 21310 & 17, subd. (b)(4).) Following the denial of his motion to suppress evidence on Fourth Amendment grounds, Robert admitted the allegations in the petition. He was declared a ward of the juvenile court and placed with his mother.
Robert appeals contending the trial court erred in denying his motion to suppress evidence. We will find his detention and arrest to be proper and affirm.