CA Unpub Decisions

The County of Yuba adopted the conclusions of an administrative law judge (ALJ), who found that Sharon Sager should be retired from her position as a Deputy Sheriff III due to her mental condition. Sager obtained a writ of mandate compelling the County to vacate its decision, and the County appealed. Court conclude that the trial court misapplied the standard of review, disregarded significant evidence, and applied the wrong substantive standard to determine whether Sager was fit for duty. Court reverse with directions to deny Sagers petition.

While on probation for robbery, defendant was arrested for and convicted of two charges arising from the same incident: lewd and lascivious act on a child under the age of 14 and burglary. Of the two enhancements alleged, the jury found true only Penal Code section 667.61, subdivision (e)(2),[1]that defendant committed the violation of section 288, subdivision (a) during the commission of a burglary; it rejected the section 667.71, subdivision (d)(4) enhancement that defendant committed the burglary with the intent to violate section 288, subdivision (a).
Court affirm the judgment. Because the abstract of judgment reflects an unauthorized sentence, Court remand for resentencing to permit the court to pronounce sentence on the section 667, subdivision (a) enhancement.

Two females and three males robbed an El Dorado County video store. One male brandished a handgun. The clerk was escorted to the bathroom and told to count to 100 and then exit from the back door. The robbers took $500 to $600 from the cash register and a few dollars from the clerk. Defendant Arthur Louis Smith was identified as a participant. He later surrendered to authorities without incident. When interviewed, he admitted possessing and brandishing a handgun. The judgment is affirmed.

Defendant Matthew Mark Estler pled no contest to threats to commit a crime resulting in death or great bodily injury (Pen. Code, 422)[1]in exchange for dismissal of the remaining charge of harassing by telephone ( 653m, subd. (a)) and the alleged enhancements for two prior prison terms ( 667.5, subd. (b)), and a stipulated sentence of three years (the upper term) in state prison. Defendant waived a presentence probation report and was sentenced to three years in state prison in accordance with his plea agreement. Defendant obtained a certificate of probable cause and now appeals his sentence ( 1237.5).
On appeal, defendant claims under Blakely v. Washington (2004) 542 U.S. 296, 301-304 [159 L.Ed.2d 403, 412-414] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), that the trial court erred in imposing the upper term without submitting the aggravating factors in support of the upper term to a jury for proof beyond a reasonable doubt. Defendants argument fails.
The judgment of the trial court is affirmed.

Defendant Randy Donald Hamilton possessed prescription medication that was not his own. In December 2005, he pleaded guilty to possession of a controlled substance. (Health & Saf. Code, 11350, subd. (a).) He was granted deferred entry of judgment pursuant to Penal Code section 1000.
In September 2006, the trial court took judicial notice of defendants plea in another case and found him in violation of his Penal Code section 1000 diversion. Imposition of sentence was suspended and defendant was granted Proposition 36 probation. In October 2006 and November 2006, defendant admitted violating conditions of his Proposition 36 probation. Probation was reinstated following each violation. The judgment is affirmed.

Appellant, Andre S., was charged in a petition filed on February 1, 2007 pursuant to Welfare and Institutions Code section 602, with one felony count of a lewd and lascivious act on a child under age 14 (Pen. Code, 288, subd. (a)). On March 20, 2007, Andre was advised of his constitutional rights and the consequences of his plea. Andre admitted a violation of misdemeanor statutory rape ( 261.5, subd. (c)). The court found, without an objection, a factual basis for the plea. The judgment is affirmed.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450, 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. Court deny the petition.

Disagreements among church members resulted in the resignation of the minister and a fight for control over the church. That fight landed in the lap of the superior court. One faction of ousted church trustees sought a writ of mandate to have themselves reinstated as trustees. That relief was granted, because of certain irregularities in connection with the ouster.
However, the congregation voted to ratify the ouster of these individuals. The individuals in question are still fighting. Now, they seek relief beyond that requested in their original writ petition, including an order to the effect that all acts taken by the board of trustees at the first ouster meeting and every subsequent meeting are void. The superior court did not err in declining to grant them additional relief and in entering a judgment of dismissal, inasmuch as the congregation has ratified their ouster as trustees. Court affirm.

By writ petition, the mother of a dependent child challenges the findings and orders made by the juvenile court in bypassing reunification services and setting a permanency planning hearing. Asserting that the court misinterpreted and misapplied section 361.5, subdivision (b)(10), the mother contends that she made reasonable efforts during the relevant timeframe to treat the problems that led to the removal of the childs siblings. In any event, she argues, it is in the childs best interests to provide reunification services to her. Finding substantial evidence to support the juvenile courts decision, Court deny the mothers petition.

Peter Navarro appeals his conviction by jury verdict of one count of a lewd and lascivious act on a child 14 years old by a person at least 10 years older than the victim. (Pen. Code, 288, subd. (c)(1).) He contends the court prejudicially erred in failing to give unanimity instructions. Court agree.

Steven E. was the subject on an ongoing dependency proceeding when the prosecuting attorney filed a petition seeking to have him declared a delinquent. The juvenile court sustained the allegations of the delinquency petition, finding that Steven had committed the felony of assault with intent to commit a lewd or lascivious act upon a child (Pen. Code, 220, 288), misdemeanor battery (id., 242, 243, subd. (a)), and misdemeanor false imprisonment (id., 236, 237, subd. (a)). The court then declared Steven to be a ward of the court, ordered out-of-home placement for a period not to exceed six years and six months, and terminated the dependency. Court conclude that there is no merit. In light of these conclusions, Court affirm.

The State Controllers Office (controller) appeals from a judgment and incorporated order, awarding to plaintiff Larry St. Jean $118,301.42, owed to him by Rostane Eddi, but which had escheated to the controller before plaintiff claimed it. The controller contends that plaintiff was not entitled to recover the funds without pursuing an administrative claim before the controller under the Unclaimed Property Law (Code Civ. Proc., 1500 et seq.; undesignated section references are to that code), that plaintiff was categorically not entitled to the funds, that plaintiffs California, sister state judgment was improperly obtained, and that the trial court improperly disposed of the case by judgment on the pleadings. Court conclude that the latter contention requires reversal, while the remaining contentions may be raised in the trial court on remand.

Appellant Robert J. Cortez sued his stepdaughter, respondent Diana Lynn Incledon, seeking to quiet title to two residential properties acquired during appellants marriage to respondents mother, Louise Cortez (Decedent). On appeal, appellant contends: (1) the trial court erred by placing the burden of proof on him to establish that the quitclaim deed was the result of Decedents undue influence; (2) respondent failed to rebut the presumption of undue influence; and (3) the trial court erred in failing to make findings on his cause of action for financial elder abuse and his allegations of conspiracy. Court disagree and affirm the judgment.

Cynthia Tidwell's home was sold in a nonjudicial foreclosure sale. She appeals a summary judgment entered in favor of EMC Mortgage Corporation (EMC) and Quality Loan Service Corporation (Quality) on her causes of action for fraud, negligent misrepresentation, and violation of statute. (Civ. Code, 2934 & 2924c, subd. (a)(2).) Tidwell contends that triable issues of fact exist whether EMC and Quality fraudulently induced her to pay $4,900 under duress to stop the sale. She also contends emc and Quality violated statutory notice and recordation requirements for the foreclosure sale. Finally, she contends the trial court did not consider her evidence before granting summary judgment. Court reject her contentions and affirm.