CA Unpub Decisions

The People charged Bennie Dixon with assault with force likely to produce great bodily injury (Pen. Code,[1] 245, subd. (a)(1)) (count 1), resisting an executive officer ( 69) (count 2), resisting an officer ( 148, subd. (a)(1)) (count 3), and exhibiting a

deadly weapon other than a firearm ( 417, subd. (a)(1)) (count 4). In addition, with respect to count 1, the People alleged that Dixon personally used a deadly weapon, within the meaning of section 1192.7, subdivision (c)(23). The People also alleged that Dixon had suffered a prior serious felony conviction ( 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior strike conviction ( 667, subds. (b)-(i), 668, 1170.12), stemming from a conviction for assault with a deadly weapon by means of force likely to produce great bodily injury ( 245, subd. (a)(1)). Court affirm the judgment.

jury convicted defendant David Stuedemann of rape by a foreign object on an unconscious person (Pen. Code, 289, subd. (d)(3)) and oral copulation on an unconscious person ( 288a, subd. (f)(3)). The court suspended imposition of sentence and granted probation subject to numerous conditions, including a condition Stuedemann spend one year in county jail. On appeal, Stuedemann asserts the evidence was insufficient to support his convictions for those offenses because the uncontradicted evidence showed the victim, Griselda R., was not unconscious within the meaning of those sections at the time of his conduct. The judgment is reversed.

Plaintiff Gary S. Whaley appeals a judgment entered after the trial court granted defendant State of California Employment Development Department's (EDD) motion for summary judgment in Whaley's unlawful discrimination and retaliation action against it. On appeal, Whaley contends the trial court erred by: (1) concluding his cause of action for unlawful discrimination based on a disparate treatment theory was barred by the applicable statute of limitations and the doctrines of collateral estoppel and exhaustion of administrative remedies; (2) concluding his cause of action for unlawful retaliation failed for insufficient evidence of any adverse employment action; (3) excluding certain evidence he submitted in support of his opposition to EDD's motion for summary judgment; (4) concluding his cause of action for unlawful retaliation also failed because he did not rebut EDD's showing of legitimate, nonretaliatory reasons for its actions; and (5) awarding costs to EDD. The judgment is affirmed.

Timothy Lewis Finamore entered negotiated guilty pleas to burglary (Pen. Code, 459), grand theft of an automobile ( 487, subd. (d)(1)), unlawful taking or driving a vehicle (Veh. Code, 10851, subd. (a)), attempted unlawful taking or driving a vehicle ( 664/Veh. Code, 10851, subd. (a)), driving under the influence of drugs (Veh. Code, 23152, subd. (a)), unauthorized entry of a residence ( 602.5, subd. (a)), tampering with a vehicle (Veh. Code, 10852), and being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)). Finamore also admitted a prior strike conviction allegation ( 667, subds. (b)-(i)). As a condition of the plea, Finamore entered a waiver of his right to appeal issues related to his prior strike conviction and a Blakely (Blakely v. Washington (2004) 542 U.S. 296) waiver. The trial court rejected Finamore's request to dismiss the prior strike conviction allegation, and sentenced Finamore to three years four months in prison. The record on appeal does not contain a certificate of probable cause ( 1237.5). The judgment is affirmed.

Rita M. seeks review of a juvenile court order removing her foster son, J.J. from her home under Welfare and Institutions Code section 366.26, subdivision (n). She contends the court erred when it did not place J.J. in her care for adoption. She also contends the court should have granted her request for de facto parent status. Court deny the petition.

Defendant Lanny Woosley was convicted of 11 crimes, including two unusually nasty murders. He had acquired an illegally modified handgun that could fire over 30 rounds per second; in an apparent road rage incident, he or an accomplice used it to mow down a couple of high school students total strangers to them who were on their way home from a party.
Defendants appellate contentions, however, revolve around procedural issues, lesser counts, and sentencing. Court find no error affecting the conviction. However, aside from defendants challenge to consecutive sentencing, Court agree with his claims of sentencing error. Hence, Court reverse the judgment with respect to the sentence only and remand for resentencing.

A modification decision.

Defendant Mark Anthony Niehouse was initially sentenced on August 9, 2005. We remanded the case for resentencing. We ruled that the sentence violated the plea agreement because defendant was sentenced to five years, instead of the midterm of four years, for his drug offense (Health & Saf. Code, 11383, subd. (c)(1)). (People v. Niehouse (June 8, 2006, E041761) [nonpub. opn.].)
At the resentencing hearing, defendant pleaded guilty to possession of pseudoephedrine for the production of methamphetamine, as well as having a prior conviction for a similar offense. Defendant also admitted that he had not been free of custody or new convictions within five years of being released from prison under Penal Code section 667.5, subdivision (b).
On appeal, defendant contends that the $400 increase in the restitution fine after a successful appeal violated his right to due process and right not to be subjected to double jeopardy. The People simply argue that this issue has been waived by defendants failure to object. We agree with defendant and reduce his restitution fine to $1,200. The trial court is directed to amend the abstract of judgment to strike both the $1,600 restitution fine and the $1,600 parole revocation fine and to reimpose both the originally set $1,200 restitution fine and the $1,200 parole revocation fine. In all other respects, the judgment is affirmed.

In 2005, defendant pled guilty to being an ex-felon in possession of a firearm. (Pen. Code, 12021, subd. (a)(1).)[1] He was granted probation. A petition to revoke his probation was filed in 2006. While this matter was pending, the trial court declared a doubt as to defendants competency and suspended proceedings. ( 1368.) Two alienists were appointed, who examined defendant, and after considering their reports, the trial court declared defendant to be competent and reinstated proceedings. At the conclusion of the contested revocation of probation hearing, the trial court found defendant to be in violation of the terms of his probation that he break no law and not possess drug paraphernalia. It sentenced him to prison for the mid term of two years. Court offered the defendant an opportunity to file a personal supplemental brief, which has been read and considered. Court have now concluded our independent review of the record and find no arguable issues.

Appellant, Leslie Hood III, was charged in a consolidated second amended information with transportation of a controlled substance (Health & Saf. Code, 11379, subd. (a), count one), possession of a smoking device (Health & Saf. Code, 11364, count two), giving false information to a peace officer (Pen. Code, 148.9, subd. (a)[1], count three), false personation ( 529, count four), and transportation for sale of a controlled substance (Health & Saf. Code, 11352, subd. (a), count five). The complaint alleged an enhancement for prior narcotics convictions (Health & Saf. Code, 11370.2, subd. (a)), three prior prison term enhancements ( 667.5, subd. (b)), and an on bail enhancement ( 12022.1). After independent review of the record, Court have concluded no reasonably arguable legal or factual argument exists.

In August 2006, appellant Dave R., a minor, admitted allegations that he committed two misdemeanors: battery (Pen. Code, 242) and escape from a juvenile facility (Welf. & Inst. Code, 871, subd. (a)). Following the disposition hearing, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ). The court declared appellants maximum term of physical confinement (MTPC) (Welf. & Inst. Code, 731, subd. (b)) to be five years five months, by aggregating the terms for the instant offenses and offenses adjudicated in prior wardship proceedings, and awarded appellant 608 days of predisposition credit.
On appeal, appellant contends the court (1) incorrectly calculated the MTPC; (2) erroneously failed to exercise its statutory discretion in setting the MTPC; and (3) erroneously failed to declare whether an offense of which appellant was adjudicated in a 2003 proceeding was a felony or misdemeanor. Court find merit in the first of these arguments, decline to reach the second, reject the third and remand for further proceedings.

After a Welfare and Institutions Code section 300 petition was filed, infant H.D. was found to be a minor coming under the jurisdiction of the juvenile court. H.s father, Henry C. (father), appeals from the dispositional order, claiming there was insufficient evidence to support the court order to remove H. from his custody. Court affirm.

The Bakersfield City School District (School District) petitions for a writ of review from a decision of the Workers Compensation Appeals Board (WCAB). (Lab. Code, 5950; Cal. Rules of Court, rule 8.494.) The School District contends the injuries sustained by a maintenance employee while he aided police apprehend a suspect off-campus did not arise out of and occur in the course of his employment. Court agree with the WCAB and conclude the employees injuries are compensable.

Petitioner William R. Sutton asks this court to annul a decision of the Workers Compensation Appeals Board (WCAB) in which the WCAB remanded the matter for further development of the medical record to determine whether Sutton is entitled to medical treatment arising out of a 1985 stipulated award providing that future medical care may be required. To the extent the WCABs opinion is a final decision, we agree with the WCAB that it must acknowledge the current medical guidelines as set forth in Labor Code section 4600 in considering the reasonableness of Suttons request for medical treatment.