CA Unpub Decisions

Ashley MacIntosh appeals from the judgment entered upon her negotiated plea of no contest to transporting a controlled substance, methamphetamine (Health & Saf. Code, 11379, subd. (a)). She was sentenced to the upper term of four years in prison. Appellant contends that remand for resentencing is required because the trial court violated her constitutional rights to a jury trial and to a finding of aggravating factors beyond a reasonable doubt when it imposed the upper term, and the imposition of that term was an abuse of discretion. Respondent contends that this appeal must be dismissed because appellants claim is a challenge to the validity of the plea and she failed to obtain a certificate of probable cause. Court affirm.

The underlying consolidated action for damages for personal injuries and wrongful death arises out of an incident on the afternoon of Wednesday, July 16, 2003, when George Weller drove his automobile through the open air pedestrian Santa Monica Farmers Market (Market) on Arizona Avenue in City of Santa Monica (City), killing or seriously injuring many people. In this proceeding, we review the trial courts July 3, 2006 order granting summary adjudication in favor of defendant City on the ground that Citys defense of design immunity defeated plaintiffs claim for dangerous condition of public property. Also before us for review is Citys petition for a writ of mandate challenging the January 19, 2007 order denying Citys summary judgment motion.
Court conclude that the evidence in the record gives rise to reasonable conflicting inferences as to whether the one-page sketch (exhibit 6 to Citys summary adjudication motion, attached to this opinion as appen. A, post) was the traffic control plan for the Market that was approved by Citys traffic engineer in 1987 and which is the basis of Citys design immunity defense. Because a reasonable inference exists that exhibit 6 does not constitute Citys approved plan or design under the design immunity defense, the order granting Citys summary adjudication motion cannot stand. Accordingly, Court direct the trial court to vacate the July 3, 2006 order. Without the July 3, 2006 order, there is no basis for summary judgment, and we thus deny Citys challenge to the January 19, 2007 order.

Melody G. (mother) appeals an order terminating her parental rights with respect to T.G. We reject mothers claim the Department of Children and Family Services (DCFS) gave inadequate notice under the Indian Child Welfare Act (ICWA) and find the notices given were adequate to convey the information known to DCFS. However, we agree with mothers claim that, on the facts presented here, DCFS had an obligation to inquire of maternal aunt Kimberly F. with respect to T.G.s Indian heritage prior to giving notice under the ICWA. Consequently, we conditionally reverse the order terminating parental rights and remand for the limited purpose of permitting DCFS to interview Kimberly F. with respect to mothers assertion T.G. has Indian heritage. If Kimberly F. is unable to provide additional information, or if no Indian tribe asserts jurisdiction as to T.G. after DCFS gives notice that includes any additional information Kimberly F. might provide, the juvenile court reinstate the order terminating parental rights.

Plaintiffs James York, Gary Gray, and Maria Behunin are partners in a dissolved partnership suing two of the partnerships partners, Ralph Costanzo and Gerard G. Adams, Jr., for an accounting and for damages for misappropriation of partnership funds. The trial court denied Costanzos special motion to strike (Code Civ. Proc., 425.16) the second cause of action for breach of fiduciary duty, rejecting Costanzos assertions that the gravamen of the cause of action was protected litigation activity and that plaintiffs could not establish a probability of prevailing. Court affirm the order because the trial court correctly determined that the gravamen of the action is defendants alleged misuse of partnership funds and that plaintiffs made a prima facie showing of facts supporting a judgment in their favor.

Petitioner, Joseph L., seeks extraordinary writ review of a juvenile court order terminating reunification services and setting the matter for a permanency planning hearing. (Welf. & Inst. Code, 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) Court find sufficient evidence supports the juvenile courts finding that petitioner did not substantially comply with the juvenile court orders and therefore deny the petition.

A jury convicted defendant Victor Raul Borbon of second degree robbery (Pen. Code, 211; count 1) and attempted second degree robbery ( 211; count 2). The jury found the deadly weapon allegation ( 12022, subd. (b)) as to each count not to be true. Sentenced to state prison for an aggregate term of five years (upper term of five years on count 1 and a concurrent midterm of two years on count 2), defendant appeals, contending (1) the trial court prejudicially erred in denying his request to discharge retained counsel, and (2) the trial courts imposition of the upper term for count 1 contravenes Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Court affirm the judgment.

A jury convicted defendant Nicholas Chernobieff of attempted murder of Officer Michael Easter while knowing the officer was in the performance of his duties (Pen. Code, 187, subd. (a), 664, subd (e) count one); assault on Officer Easter ( 245, subd. (c) count two), as well as the included offense of assault in violation of section 245, subdivision (a)(1); conspiracy to commit grand theft ( 182, subd. (a)(1), 487 count three, possession of a check with intent to defraud ( 475, subd. (b) counts four), second degree burglary ( 459 count five), possession of methamphetamine for sale (Health & Saf. Code, 11378 count six), and transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)). On appeal, defendant contends (1) the trial courts exclusion of his proffered expert testimony and the courts refusal to permit him to cross examine Detective Goucher on his use of lethal force denied him due process; (2) the court improperly admitted testimony regarding defendants arrest in an pending case in Yolo County; (3) cumulative prejudice amounted to a denial of due process; (4) conviction of both the greater and the lesser included offense in count two requires reversal and dismissal of the lesser included offense; and (5) use of aggravating factors to impose sentence without submission of those factors to a jury requires reversal of his sentence. Court find merit only in defendants fourth contention and otherwise affirm the judgment.

Defendant appeals following her conviction by jury of drug offenses with a firearm enhancement. She contends the trial court committed two errors. First, it denied her a continuance to retain counsel to investigate a motion for a new trial. Second, it failed to give sufficient reasons for denying commitment to the California Rehabilitation Center (CRC). Court find no error and affirm.

In 1999, plaintiff Michael Shaw obtained a stipulated judgment against the City of Sacramento (City) in the amount of $650,000. In September 2002, he filed a civil complaint against his attorneys in the earlier action, defendants Leo F. Donahue and the Law Offices of Leo F. Donahue, alleging defendants failed to pay him his proper share of the judgment.
Plaintiff appeals, contending: (1) section 340.6 is inapplicable to this case; (2) if section 340.6 is applicable, its one-year limitation period does not apply; and (3) if section 340.6s one-year period applies, whether plaintiff knew or should have known of the misappropriation of funds before September 2001, that is, more than one year before filing suit, is an issue of fact to be determined by a jury. Court disagree with each contention and affirm the judgment.

Defendant was convicted by jury of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), stalking while a restraining order was in effect (Pen. Code, 646.9, subd. (a)), two counts of vandalism (Pen. Code, 594, subd. (a)), four counts of making criminal threats (Pen. Code, 422), explosion of a destructive device with intent to injure or intimidate (Pen. Code, 12303.3), and arson (Pen. Code, 451, subd. (d)). The trial court found true allegations defendant had a prior serious felony (Pen. Code, 667, subds. (b)-(i); 1170.12), and a prior prison term (Pen. Code, 667.5, subd. (b)). Sentenced to 28 years 4 months in prison, defendant appeals. He contends it was error to admit evidence of his prior assaults because they were not proper domestic violence evidence under Evidence Code section 1109. He further contends trial counsel was ineffective in failing to object to such evidence. Court find the evidence was properly admitted and affirm.

Defendant Patricia Irene Gallegos appeals from the judgment awarding plaintiff Fong Her $104,589.25 in special and general damages for personal injuries sustained in an automobile collision caused when Gallegos drove her vehicle through a red light and struck Hers vehicle.
Her was taken to the trauma unit at the University of California Davis (University) where he was examined and treated. The University submitted a bill of $15,705 for its medical services. Medi-Cal paid the University $418.97 as payment in full and the University wrote off the unpaid balance. On the question of special and general damages, Gallegos proffered evidence of the amount Medi-Cal paid to the University for the purpose of limiting Hers recovery for medical expenses and to rebut Hers evidence that the amount billed by the University was the reasonable value of its services. The trial court excluded the evidence finding it would be misleading as to the reasonable value of the medical expenses and in a post verdict hearing, reduced the amount of the special damages for medical expenses to those actually paid by Medi-Cal. On appeal, defendant contends the trial court erred by excluding this evidence on the question of general damages. Court find no error and affirm the judgment.

S.B. (appellant), the mother of J.S. (the minor), appeals from an order of the juvenile court terminating appellants parental rights. (Welf. & Inst. Code, 366.26, 395; further unspecified section references are to this code.) Appellant contends the juvenile court failed to ensure that Human Services Agency (HSA) conducted a proper inquiry into the possibility the minor was an Indian child within the meaning of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. 1901 et seq.) Disagreeing with that claim, Court affirm.

Raymond C., father of the minor R.C., appeals from an order of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; all unspecified section references are to the Welfare and Institutions Code.) Appellant contends (1) the evidence does not support the juvenile courts finding the minor is generally adoptable, and (2) the juvenile court erred in failing to consider the suitability of the prospective adoptive family in determining whether the minor is adoptable. Court affirm.

A jury convicted Charles Gundelfinger of burglary of an inhabited dwelling (Pen. Code, 459, 460) and vandalism (Pen. Code, 594, subd. (a)(b)(2)(A)). The court sentenced him to 365 days in local custody after the victims, his parents, requested he be spared prison commitment.
Gundelfinger appeals, contending there is insufficient evidence of intent to support his burglary conviction and the court erred by denying his Marsden[1]motion for replacement counsel. Court affirm in full.