CA Unpub Decisions

Defendant Craig Lee Hendrickson entered a liquor store, heated up two burritos in the stores microwave, placed a sandwich in his pocket, and attempted to leave the store without paying for the items. During trial, defendant claimed that he had paid for the burritos, but did not recall how the sandwich got into his pocket. Defendant was charged with second degree robbery (Pen. Code, 211), second degree commercial burglary ( 459), and petty theft with priors. ( 666 & 484, subd. (a).) It was further alleged that defendant suffered a prison prior. ( 666; Health & Saf. Code 11377, subd. (a).) Court conclude that the court properly instructed the jury on defendants claim-of-right defense. Court further find that there was sufficient evidence regarding consciousness of guilt to warrant the giving of the CALCRIM No. 362 instruction.

Defendant Raymond Luke Stone, III, appeals judgment entered following jury convictions for being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)[1]; count 2); and committing misdemeanor violations ( 148, subd. (a)(1); counts 3 and 4). The jury also found true three prior conviction allegations ( 667.6). Defendant was acquitted of attempting to obstruct an executive officer from performing his duty ( 69; count 1). The trial court sentenced defendant to five years in state prison. Defendant contends the trial court committed prejudicial error by giving incomplete and inaccurate jury instructions on the offense of being a felon in possession of a firearm ( 12021, subd. (a)(1)); by failing to give the jury a written version of the single witness instruction, Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 301; and by excluding a portion of witness Margaret Cortezs proposed testimony as a discovery sanction due to defendants failure to name her on his witness list. Court conclude the trial court did not commit any prejudicial error and affirm the judgment.

A jury found defendant and appellant Alan Leonard Brown guilty of second degree murder (Pen. Code, 187, subd. (a),[1]count 1), driving under the influence causing bodily injury (Veh. Code, 23153, subd. (a), count 2) and driving with a blood alcohol content of .08 percent or greater causing bodily injury. (Veh. Code, 23153, subd. (b), count 3.) Defendant pled guilty to the misdemeanor of driving with a suspended license. (Veh. Code, 14601.2, subd. (a), count 4.) The jury also found true the enhancement allegations on counts 2 and 3 that defendant personally inflicted great bodily injury on two victims. ( 12022.7, subd. (a), 1192.7, subd. (c)(8).) The trial court sentenced defendant to a total term in state prison of 23 years, including 15 years to life on count 1, the consecutive term of two years on count 2, plus a consecutive three years for each of the two great bodily injury enhancements. The court imposed a concurrent term of six months on count 4, and stayed the sentence and enhancements on count 3.

On appeal, defendant contends that: 1) the trial court erred in denying his motion in limine to suppress statements he made to a police officer at the scene of the accident; and 2) his Sixth Amendment right to a jury trial, as defined in Blakelyv. Washington (2004) 542 U.S. 296 (Blakely), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Cunningham v. California (2007) U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), was violated when the trial court imposed consecutive sentences. Court disagree and affirm.

Michael Patton (Patton) appeals from an order denying his motion to set aside the default which was entered after his answer to complaint was stricken for discovery abuses. He argues that the trial court abused its discretion in imposing terminating sanctions for what he considers acts of abandonment by legal representatives, as well as the original monetary sanctions imposed as discovery sanctions. Court affirm the judgment.

A jury convicted defendant of five sexual offenses involving his five year old daughter. The trial court found true four additional enhancements, including that defendant was a habitual sexual offender. The court sentenced defendant to a total prison term of 325 years to life. Charging instructional error, defendant challenges his conviction on count 1 for sexual penetration of a child under 14 years of age. ( 289, subd. (j).) Defendant also argues the trial court incorrectly exercised its discretion by denying his Romero motion. The parties agree the abstract of judgment should be corrected to reflect that defendants restitution and parole revocation fines were $200 each, rather than $1,000 each. Court also order the abstract of judgment corrected to reflect defendant should receive a consecutive, not a concurrent, prison term of five years under section 667, subdivision (a). (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) Otherwise, Court reject defendants contentions and affirm the judgment.

Appellant Arthur R. challenges a juvenile courts dispositional order denying him reunification services as to K.R. (the child). He contends that the Riverside County Department of Public Social Services (the department) failed to exercise reasonable diligence in its effort to locate him, and that the juvenile courts order denying him reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(1) (whereabouts of parent unknown) was thus not supported by substantial evidence. Court affirm.

On April 17, 2002, defendant, represented by counsel, pleaded guilty pursuant to a plea bargain to possession of a controlled substance, Demerol, (Health & Saf. Code, 11350, subd. (a)), and entry of judgment was deferred for 18 months so that defendant could participate in a drug program. (Pen. Code, 1000 et seq.)
However, defendant failed to pay required fees and to provide proof of attendance in a program; and, on July 31, 2003, release on her own recognizance was revoked, criminal proceedings were reinstated, and a bench warrant issued. Defendant appeared on May 12, 2006, was ordered to appear on May 22, 2006, but did not appear.
After a thorough and complete review of the record and briefs, Court conclude that defendant should have been granted probation on February 13, 2007, instead of being sentenced to prison.

Thomas Leo Cummings, Jr., and Brian Eugene Jefferson stand convicted, following a jury trial, of various offenses. Jefferson was convicted of attempted robbery (Pen. Code,[1] 211, 664; count 1), robbery ( 211; count 2), misdemeanor carrying a concealed firearm in a vehicle ( 12025, subd. (a)(1); count 3), and misdemeanor carrying a loaded firearm in a public place or on a public street ( 12031, subd. (a)(1); count 4). As to counts 1 and 2, the jury further found that a principal was armed with a firearm during commission of the offense ( 12022, subd. (a)(1)).[2] Cummings was convicted of being an ex-felon in possession of a firearm ( 12021, subd. (a)(1); count 5) and feloniously carrying a loaded firearm ( 12031, subd. (a)(1); count 6). He admitted having suffered a prior strike conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(e)) and having served a prior prison term ( 667.5, subd. (b)). Cummings was sentenced to a total of five years in prison, while Jefferson was sentenced to a four-year term. Both now appeal, with Cummings challenging the sufficiency of the evidence to support his conviction on count 6, and Jefferson claiming prejudicial instructional error occurred. For the reasons that follow, Court affirm.

Respondent Save Mart Supermarkets, Inc. (Save Mart) fired appellant Debra Fries for falsifying her time card and lying about it in a subsequent investigation. Fries sued for wrongful termination under four legal theories.
In this appeal, Fries challenges the superior courts order granting summary adjudication on her two contract based theories of recovery. The superior court determined those theories had been negated because the undisputed facts established Fries was an at will employee. Fries disagrees, claiming triable issues of fact exist. Court conclude as follows: (1) An agreement to terminate only for good cause is not the sole way to contractually limit an employers right to terminate at will employees for any or no cause; other contractual restrictions may be created by an implied in fact agreement. (2) Friess deposition testimony, which indicated she was not told expressly, orally or in writing, that she could not be discharged by Save Mart except for good cause, did not clearly and unequivocally contradict statements in her declaration about what Save Marts documents and personnel did express. (3) The trial court did not abuse its discretion in overruling Save Marts evidentiary objections. (4) Triable issues of material fact exist regarding whether the parties had an implied in fact agreement that limited Save Marts right to terminate Fries at will. (5) The erroneous grant of the motion for summary adjudication was not harmless error because it deprived Fries of the opportunity to present a theory of recovery that could have been resolved in her favor by the trier of fact.
Accordingly, judgment is reversed and the matter remanded for further proceedings.

On June 29, 2004, a jury convicted appellant Kerry Lewis Alexander of transportation of methamphetamine (count one/Health & Saf. Code, 11379), possession of methamphetamine (count two/Health & Saf. Code, 11377), evading a police officer (count three/Veh.. Code, 2800.2), resisting or delaying a police officer (count four/Pen. Code, 148, subd. (a)), and possession of a hypodermic needle and syringe (count five/Bus. &. Prof. Code, 4140). In a separate proceeding, the jury found true a prior prison term enhancement (Pen. Code, 667.5, subd. (b)). Thereafter, the court sentenced Alexander to prison for an aggregate term of four years, the middle term of three years on the transportation offense, a one year prior prison term enhancement, a stayed term on count two, a concurrent two year term on count three, and concurrent term of 60 days on counts four and five. Following a timely appeal, in an unpublished opinion, this court found that the trial court erred in not staying the term it imposed on count four pursuant to Penal Code section 654 and by its failure to conduct a Marsden hearing. We remanded the matter to the trial court so that it could conduct this hearing. On May 15, 2006, pursuant to our remand, the trial court held a Marsden hearing and denied Alexanders Marsden motion. On appeal, Alexander contends the trial court abused its discretion when it denied his Marsden motion. Court affirm.

Defendant Richard Luna was convicted of making criminal threats (Pen. Code, 422), dissuading a witness by force or threat ( 136.1, subd. (c)(1)), and assault ( 240). The trial court denied probation and sentenced him to four years in prison. The court revoked his probation on a prior conviction and sentenced him to two years, to be served concurrently.

In January 1996, a 13-year-old girl reported that she had consensual intercourse with appellant, Timothy Eves. Following a preliminary hearing, Eves pled no contest to lewd and lascivious conduct with a child under the age of 14 (Pen. Code, 288, subd. (a)). On August 7, 2006, Eves filed a combined petition for writ of errorcoram nobis and petition for writ of habeas corpus. On September 14, 2006, the court denied both petitions. On appeal, Eves contends that the court abused its discretion when it denied his petitions. Court affirm.

Following denial of his motion to suppress evidence and partial denial of his Pitchess[1]motion, defendant Chezarae Cromwell pled no contest to resisting an officer (Pen. Code, 69 On appeal, defendant contends (1) the trial court erred in the compliance with and ruling on the Pitchess motion; (2) the trial court erred and abused its discretion in denying the Pitchess motion as to one police officers records for dishonesty, denying defendant his due process rights; and (3) imposition of the aggravated sentence of three years violated Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court affirm the judgment.

This is an appeal from a postjudgment order denying a request for attorney fees. Appellants have not shown reversible error; accordingly, Court affirm the order.