CA Unpub Decisions

Deoxyribonucleic acid (DNA) evidence may or may not be testimonial under Crawford v. Washington (2004) 541 U.S. 36. It depends on the circumstances. Here we hold that a DNA report is not testimonial because defendant was not a suspect when the report was produced.
A jury found Roberto Arauz guilty of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2); count 1), forcible sodomy (§ 286, subd. (c)(2), count 2) and forcible rape (§ 261, subd. (a)(2), count 3).[1] The jury also found true as to each count that Arauz inflicted great bodily injury on the victim (§ 12022.7) and committed the offenses during the commission of a first degree burglary (§ 667.61, subds. (a), (b) & (d)(4)).
On appeal, Arauz contends that the DNA evidence admitted in this case constitutes testimonial hearsay. Thus, he argues its admission violated the Confrontation Clause of the Sixth Amendment to the United States Constitution (Confrontation Clause). We affirm.

Appellant Kyle King's employer, respondent County of Ventura (County), dismissed him from probation less than two months after the County investigated his complaints of misconduct by his initial training officer. King sued the County for retaliation under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940.)[1] The trial court granted the County's motion for summary judgment.
As we shall explain, King established a prima facie case giving rise to a rebuttable presumption of retaliation. The County, however, successfully rebutted that presumption by demonstrating a legitimate, non-retaliatory reason for King's dismissal. Once the presumption of retaliation disappeared, the burden shifted to King to raise a triable issue of material fact that the County was more likely than not motivated by a retaliatory intent. He failed to meet that burden. We affirm.

Plaintiffs acquired title to real property by way of a nonjudicial foreclosure.
Plaintiffs' complaint included causes of action for quiet title, to set aside an unlawful detainer judgment and damages. The trial court sustained defendants' demurrer to some, but not all, causes of action without leave to amend. Thereafter, plaintiffs dismissed their entire action without prejudice and appealed. While the appeal was pending, plaintiffs conveyed their interest in the subject real property to a third party.
We determine the judgment is final for the purposes of appeal. The conveyance of plaintiffs' interest in the subject property rendered the appeal moot concerning the causes of action relating to quiet title and unlawful detainer. Plaintiffs raise no substantive challenges to the court's rulings on the other causes of action. We affirm.

Plaintiffs John and Nancy Behrmann (the Behrmanns) sued Joel Baker and his related companies (collectively Baker) for damages allegedly caused by a life insurance-based investment tool Baker invented and by breach of the fiduciary duty Baker allegedly owed them. After the Behrmanns rested their case at trial, the trial court granted a nonsuit. Because the nonsuit was properly granted, we affirm.

The trial court granted a special motion to strike a complaint pursuant to the Anti-Strategic Lawsuit Against Public Participation (Anti-SLAPP) statute. (Code Civ. Proc., § 425.16.) We affirm.

This is a dispute between the surviving spouse and her stepdaughter over the meaning of a family trust. The stepdaughter petitioned the trial court for instructions regarding the trust. We modify the trial court's judgment to require the surviving spouse to allocate half of the appraised value of the personal property to the subtrust created for the benefit of the stepchildren. We also reverse and remand for further proceedings on whether property acquired by the spouses in joint tenancy after the trust's creation is to be deemed withdrawn from the trust. We otherwise affirm.

Barbara Tardif appeals from a judgment of dismissal entered in her action for a real estate broker’s commission after the trial court sustained demurrers to several causes of action alleged in her second, third, and fourth amended complaints. We conclude that she alleged a cause of action for breach of contract against the sellers on a third party beneficiary theory based on the listing agreement entered into by the sellers. Tardif failed to allege a right to recover a commission from the sellers’ agent based on the listing of the property with the Multiple Listing Service itself. She adequately alleged a cause of action for intentional interference with prospective economic advantage against the sellers and their broker which is not barred by the statute of limitations or abandoned.

This appeal is the latest in a decades-long custody battle between Idelle Clark and Ovando Cowles over their daughter, Heather. In this most recent iteration, Idelle[1] challenges the trial court’s renewal of the restraining order against her, which prohibits her from communicating or visiting with Heather unless Heather initiates the contact. We affirm.

Defendant and appellant Guillermo Cordova appeals his convictions for attempted premeditated murder, assault with a firearm, and conspiracy to commit murder. The trial court sentenced him to a term of 25 years to life in prison. Cordova contends the trial court erred by failing to give a unanimity instruction; the abstract of judgment contains clerical errors; and the trial court miscalculated his custody credits. Cordova’s second and third contentions have merit, and we order the abstract of judgment modified. In all other respects, we affirm.

This case is before us on remand from the California Supreme Court to reconsider the cause in light of People v. Brown (2012) 54 Cal.4th 314 and People v. Lara (2012) 54 Cal.4th 896. (Cal. Rules of Court, rule 8.528(d). Having read and considered the supplemental briefs, we vacate our prior decision and conclude that appellant is not entitled to enhanced conduct credits under former Penal Code section 4019 which was in effect on January 25, 2010.[1] (Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50.)

Salvador O. appeals from a juvenile court order requiring him to serve 540 to 750 days in “any penal institution.” He contends that there is no legal authority for the order because it will require him to serve time in county jail, and that the juvenile court abused its discretion in imposing a lengthy fixed term disposition. He further argues that the court failed to calculate his maximum confinement time and the amount of secure custody credit to which he is entitled. We will remand for calculation of appellant’s custody credits and determination of his maximum period of confinement. In all other respects, we will affirm the order.

In this appeal, Luis Gomez (appellant) challenges certain victim restitution orders (Pen. Code, § 1202.4) that were imposed at a combined sentencing hearing after he entered into plea bargains in two different cases—SS101687A and SS102170A (hereafter 101687A and 102170A).[1] For reasons that follow, we affirm the judgment.

The first deed of trust on residential real property was foreclosed upon and bought by the lender at the nonjudicial foreclosure sale for a full credit bid, leaving appellant Tang Kiet as a sold-out junior lien holder. Kiet did not appear at or bid at the trustee’s sale, nor did he otherwise attempt to cure the default on the senior lien. Instead, he filed the instant action against the lenders, Bank of America (as successor to Countrywide Home Loans, Inc. (Countrywide)) and the Bank of New York as Trustee for the Certificate Holders CWL, Inc. Asset-Backed Certificates, Series 2002-03 (BNY), the loan servicer, Litton Loan Servicing, LP (Litton), and Mortgage Electronic Registration Systems, Inc. (MERS) (hereafter collectively referred to as the Defendants unless the context indicates otherwise), seeking to recover from them the amount of his extinguished junior lien.
Kiet appeals from the judgment in favor of the Defendants that followed their successful summary judgment motion. He primarily contends the lender’s full credit bid included amounts the lender was not entitled to add to the secured debt (specifically property taxes and hazard insurance premiums paid by the lender), and included inflated amounts of principal and interest. Kiet urges the amounts improperly included in the lender’s full credit bid constitute surplus sales proceeds that should have been made available to satisfy his junior lien. We reject Kiet’s contentions and affirm the judgment.

Darrell Martin Gray appeals from a judgment after a jury convicted him of special circumstances first degree murder, shooting at an occupied motor vehicle, conspiracy to commit murder, three counts of premeditated and deliberate attempted murder, and street terrorism, and found true he committed the offenses for the benefit of a criminal street gang, and he was a gang member who vicariously discharged a firearm and caused great bodily injury. Gray argues his defense counsel, who has since been disbarred, was ineffective and the prosecutor committed multiple instances of misconduct. In our prior nonpublished opinion, People v. Gray (Feb. 25, 2013, G045645) (Gray I), we concluded Gray’s trial counsel was inadequate and the prosecutor committed one instance of misconduct, but we also concluded Gray was not prejudiced.
Gray filed a motion to augment the record and a petition for rehearing. In his rehearing petition, Gray argued, among other things, we erred in relying on a transcript of Gray’s pretrial admissions to investigators because the transcript Gray’s appellate counsel introduced into evidence at the new trial hearing did not accurately reflect Gray’s video recorded statements. The video, however, was never introduced into evidence or marked as an exhibit, and therefore, is not part of the record on appeal. Consequently, we denied his motion to augment the record but granted the rehearing petition and stayed the appeal to allow Gray time to file a petition for writ of habeas corpus. Gray filed a request for judicial notice, which we also denied. Gray filed a request for habeas corpus investigation fees. Instead of ruling on that motion, we ordered the parties to brief the issue of whether Gray’s appellate counsel, the same counsel who represented Gray during the motion for new trial proceedings, has a disqualifying conflict of interest because he apparently inadvertently admitted into evidence at the new trial hearing the evidence that is the subject of the discrepancy. The parties briefed that issue, but Gray also filed a renewed motion for judicial notice and a brief indicating he will not file a petition for writ of habeas corpus until his appeal is resolved.
Thus, we again conclude Gray’s defense counsel was ineffective and the prosecutor committed one instance of misconduct but Gray was not prejudiced. We affirm the judgment.