CA Unpub Decisions

Dennis Ott was convicted of murder and currently is incarcerated as a result of that conviction. In January 2002, Ott and his parents, Marin and Ken Atkinson, hired Kathleen E. McCasey, an attorney, paying her a retainer of $7,500 to review Otts case and consult about whether habeas corpus proceedings should be pursued. Otts parents later paid McCasey an additional $10,000. Approximately six months later, Ott and his parents became unhappy with McCaseys work. Ott fired McCasey and directed her to return the money that had been paid to her. McCasey responded by providing Ott and his parents with an accounting of the time she had spent on his case and a check for $545, representing the unearned portion of the sums paid to her.

Nicholas G., a minor, appeals from a dispositional order placing him in juvenile hall for six months, and also ordering him to pay $27,886.57 restitution to the victim. Appellate counsel has raised no issues and asks this court for an independent review of the record to determine if it discloses the presence of any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. Court have conducted the requested review, and finding no arguable issues, affirm the order.

In these appeals from the order terminating their parental rights to L.C., appellants Dan C. (father) and Michelle M. (mother) raise issues concerning compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) As well, they challenge the juvenile courts adoptability finding, assert that the beneficial exception to adoption applied but was not invoked, and argue that mothers Welfare and Institutions Code section 388 petition should have been granted. The Humboldt County Department of Health and Human Services (Department) concedes that a limited reversal is required because ICWA notice documents were not filed with the juvenile court. Because Court cannot make a complete assessment of the adequacy of notice due to this deficiency, a limited reversal and remand is in order. In all other respects Court affirm the order.

Appellant Donald Lee McMullen files this appeal from an order imposing consecutive sentences. Appellant argues that the trial courts imposition of consecutive terms violated the United States Supreme Courts decision in Blakely v. Washington (2004) 542 U.S. 296, and appellants constitutional rights to due process and a jury trial. For the reasons stated below, Court affirm the imposition of consecutive sentences.

P.M. appeals from orders terminating her parental rights to two of her daughters. She contends the trial court violated her constitutional right to due process and acted contrary to the best interests of the children by prohibiting an expert witness from observing visits between her and the children and testifying about the bond between them. She further contends the trial court abused its discretion in failing to apply a statutory exception to termination of parental rights based on the bond between her and the children. Court affirm.

Appellant Malcolm Likolo Haney, Sr. entered a plea of no contest to a violation of Penal Code section 496, subdivision (a) (receiving stolen property) and admitted a prior strike allegation. He was sentenced to the low term of 16 months, doubled to 32 months under Penal Code section 1170.12, subdivision (c)(1). Counsel for appellant has filed an opening brief raising no issues and asking this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Court have conducted the requested review and conclude that there are no arguable issues. Judgment affirmed.

Gerardo Gradillas appeals his conviction, by jury, of the second degree murder of Pedro Alcala (Pen. Code, 187, subd. (a)), shooting at an occupied motor vehicle ( 246), and conspiracy. ( 182, subd. (a)(1).) The jury further found that Gradillas personally used and intentionally discharged a firearm causing death ( 12022.53, subd. (d)) and that he committed the offenses for the benefit of a criminal street gang. ( 186.22, subd. (b)(5).) He was sentenced to an indeterminate term in state prison of 40 years to life. Jerry Reyes, Gradillas' co-defendant, appeals his conviction, by the same jury, of voluntary manslaughter ( 192, subd. (a)), shooting at an occupied motor vehicle, throwing a substance at a vehicle (Veh. Code, 23110, and conspiracy. ( 182, subd. (a)(1).) The jury found that Reyes committed these offenses for the benefit of a criminal street gang. He was sentenced to a determinate term in state prison of 37 years. As to both appellants, the clerk of the superior court is directed to prepare and forward to the Department of Corrections amended abstracts of judgment ordering each appellant, jointly and severally, to pay restitution in the amount of $4,975 to the Restitution Fund in the state treasury. In all other respects, the judgments are affirmed.

Defendant and appellant Theresa Kariger appeals from her conviction of the second degree murder of Jeffrey Segale, with whom she was living at the time of the killing. She contends that she is entitled to a new trial because there is no reporters transcript for the first day of her five day trial. Court agree.

Plaintiffs and appellants Larry Stone (plaintiff Stone) and Linda Della Pelle (plaintiff Pelle) (collectively plaintiffs) sued defendant and appellant Fidelity National Insurance Co. (Fidelity) for breach of an insurance contract and for bad faith for allegedly undervaluing damage to plaintiffs home, which was damaged during a fire. Upon a loss, the insurance policy required Fidelity to pay actual cash value until plaintiffs completed repair of the home within a certain time period, at which point, the policy required Fidelity to pay replacement cost value.
Following a jury trial, the trial court entered judgment awarding plaintiffs $160,956.42 in economic damages, which amount represented the difference between the actual cash value amount actually paid by Fidelity and the amount of actual cash value the jury determined that Fidelity should have paid. The jury also awarded plaintiffs $5,163,217 in punitive damages. In the judgment, the trial court awarded plaintiffs $64,382.56 for attorney fees pursuant to Brandt v. Superior Court (1985) 37 Cal.3d 813 (Brandt), leaving costs for a later determination.
Finally, the trial court did not abuse its discretion by ruling that if Fidelity intended to produce an out of state witness for its case in chief, it must also produce the same witness for plaintiffs case in chief.

Plaintiff, Mercedes Greene, appeals a summary judgment in favor of defendants, Frank Duda, Anne Babb and Countrywide Home Loans, Inc. (Countrywide), her former employer, in her wrongful termination, sexual harassment, retaliatory discharge and disability discrimination action. We conclude, among other things, that the trial court properly granted summary judgment. Countrywide had a legitimate nondiscriminatory reason to terminate Greene after she made death threats against her coworkers. Greene did not meet her burden to show that her employer's reasons for firing her were false or a pretext for sexual or disability discrimination. Countrywide is not required under the Fair Employment and Housing Act (FEHA) (Gov. Code, 12940, subd. (a)(1)) to accommodate Greene's mental disabilities and maintain her at the jobsite after she made death threats. Greene did not show that Countrywide subjected her to a hostile work environment or that it retaliated against her for engaging in protected activities. She has not shown that there are triable issues of fact on her causes of action against Countrywide for negligent and intentional infliction of emotional distress. Court affirm.

Byrde Hill appeals a judgment after a nonjury trial awarding Raul Cardoso $60,000 in damages for breach of an oral contract. Cardoso alleged and the court found that Hill agreed to purchase two horses from Cardoso for a total price of $80,000, accepted delivery of both horses, but paid only $20,000. Hill contends she agreed to purchase only one stallion, known as Quimbanda (also known as Fabio), for $15,000 and paid an additional $5,000 as a down payment on a conditional purchase of the second stallion, Pinguim. She also contends the alleged contract is unenforceable because it is not in writing, Cardoso failed to mitigate his damages, and the court abused its discretion by setting a trial date so soon after the filing of her answer as to effectively preclude written discovery. Court conclude that Hill has shown no error and affirm the judgment.

Appellant Donald McCrary brought suit against Miguel Rivera and respondent United Air Lines, Inc. in March 2005. According to the complaint, on February 27, 2004, appellant, then employed by respondent, became involved in an altercation at work with Rivera, a fellow employee who held a supervisory position. During the incident, Rivera allegedly yelled at appellant, grabbed his arm, and pushed him. As a result, appellant became dizzy and began experiencing chest pain. In addition, his blood pressure rose to dangerous levels. On May 18, 2004, after an administrative hearing, respondent terminated appellants employment. Appellants complaint contained claims for assault, battery, intentional infliction of emotional distress, and disability discrimination under the Fair Employment and Housing Act based on appellants medical problems. Respondent answered the complaint in April 2005. The judgment is affirmed.

Andre Johnson appeals from the judgment entered following his conviction by a jury of inflicting corporal injury upon the mother of his child (Pen. Code, 273.5, subd. (a))[1]and of misdemeanor child endangerment. ( 273a, subd. (b).) Appellant admitted an allegation that, within the previous seven years, he had suffered a prior conviction for violating section 273.5, subdivision (a). ( 273, subd. (e)(1).) The imposition of sentence was suspended, and he was placed on probation. One of the conditions of probation was that he serve 365 days in county jail. Appellant contends that the trial court erroneously failed to give sua sponte a unanimity instruction requiring the jury to agree on one act as the basis for the misdemeanor child endangerment conviction. In addition, appellant contends that the trial court erroneously instructed the jury pursuant to CALJIC Nos. 2.50.02 and 2.50.1. Court affirm.

Defendant and appellant Jimmy Barretts sole contention on appeal is that the trial court violated his Sixth and Fourteenth Amendment right to a jury trial by imposing the upper term sentence on his conviction for sale and transportation of marijuana. Court affirm.