CA Unpub Decisions

Jesus Osbaldo Martinez appeals following a court trial that was heard simultaneously with his motion to suppress evidence. The court found him guilty of possession of marijuana for sale (Health & Saf. Code, 11359) and transportation of marijuana (Health & Saf. Code, 11360, subd. (a).) Allegations of a prior strike and two prior prison terms were found true. The court denied appellants motion to strike the strike allegation and sentenced him to the low term of two years in state prison, doubled to four years for section 11360, subdivision (a) and a concurrent low term of 16 months in state prison, doubled to 32 months for section 11359, to be served concurrent to any other time appellant was serving. The only issue presented on appeal is the legality of the search. Concluding the trial court properly denied the motion to suppress, Court affirm the judgment.

Defendant State of California, Department of Transportation (hereafter State) appeals a judgment in favor of plaintiff Carol Sirott in her negligence action for injuries she suffered while riding a bicycle on a highway. We conclude, among other things, that: 1) the State's appeal is timely, 2) there was substantial evidence of a dangerous condition on the roadway, 3) the State is not immune from liability under the hazardous recreational activities doctrine and 4) Sirott did not assume the risk of this dangerous road condition. Court affirm.

Johnny Leroy Reed (Reed) and Damion Byrd (Byrd) were convicted of first degree murder of Harold Butler, Jr., premeditated attempted murder of Akwood Rollins and Jaswant Deol, and assault with a semiautomatic firearm on Luis Leon and Aracelli Leon. Byrd was also convicted of committing a residential burglary. With respect to the murder of Harold Butler, Jr., the jury found true an allegation that Reed personally discharged a firearm proximately causing death (Pen. Code, 12022.53, subd. (d),[1] and that Byrd personally discharged a firearm ( 12022.53, subd. (c)). With respect to the two attempted murder counts, the jury found true allegations that Reed and Byrd personally discharged a firearm in the commission of the offense ( 12022.53, subd. (c)). The jury also found true, with respect to each count of murder and attempted murder, that each defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1).
The court sentenced Reed to 98 years to life in state prison, and Byrd to 74 years four months in prison. They each filed timely notices of appeal.
The judgment is affirmed,

A jury convicted defendant of three counts of furnishing a minor with a controlled substance in violation of Health and Safety Code section 11380, subdivision (a), and two counts of unlawful sexual intercourse with a minor in violation of Penal Code section 261.5, subdivision (c).[1] Defendant appeals and challenges the lower courts decision to dismiss a juror after deliberations had started and its refusal to conduct an evidentiary hearing after the jury verdict when the dismissed juror alleged another juror had engaged in misconduct. Additionally, defendant contends that the lower court improperly sentenced him to the upper term for his convictions of furnishing a minor with a controlled substance. He asserts that imposing the upper term violated the dual use doctrine and his due process and Sixth Amendment rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We are unpersuaded by defendants arguments regarding the lower courts decision to remove one juror and not to conduct an evidentiary hearing regarding the alleged misconduct of another juror. Court also conclude that defendant has forfeited any challenge to his sentence based on the dual use of facts doctrine because he did not object to the aggravated sentence in the lower court. Furthermore, imposing the upper term did not violate his constitutional right to a jury trial because there were three recidivism factors in aggravation.

A jury convicted defendants Markell Scott and Willie Ramsey of multiple offenses committed during a home invasion. Defendants challenge their convictions and prison sentences. Court affirm the convictions and Scotts sentence but remand Ramseys case for resentencing on a limited issue.

In appellant Roberta A. Steeles personal injury action, the trial court granted nonsuit in favor of respondent Cingular Wireless LLC (Cingular). Steele appeals, contending that Cingular was vicariously liable for its employees motor vehicle accident. Court affirm the judgment.

Section 24 (Fifth) of the National Bank Act (NBA) provides the following powers to a duly organized national banking association: To elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places. (12 U.S.C.A. 24 (Fifth).) Courts have long recognized that the power conferred by Section 24 (Fifth) on national banks to dismiss its officers at pleasure is protected by the doctrine of preemption from all state law claims filed by their former officers for breach of an employment agreement. (See, e.g., Mackey v. Pioneer Nat. Bank (9th Cir. 1989) 867 F.2d 520, 524-536.) Courts have also acknowledged the doctrine of preemption protects national banks that dismiss their officers under Section 24 (Fifth) from state law discrimination claims filed by their former officers, although in this regard, courts have differed on whether such preemption is total or partial. (Cf. Aalgaard v. Merchants Nat. Bank, Inc. (1990) 224 Cal.App.3d 674, 695 [claims under state age discrimination statute totally preempted by Section 24 (Fifth)] with Marques v. Bank of America (1997) 59 Cal.App.4th 356, 363-364 [state antidiscrimination claims under FEHA preempted only to the extent they conflict with federal antidiscrimination laws].)
Because the Bank failed to prove Ramanathan was an officer of the bank under Wells Fargo, it was not entitled to summary judgment on grounds of preemption under Section 24 (Fifth). Accordingly, Court reverse the summary judgment awarded in favor of the Bank and remand for further proceedings.

Defendant Chili Willie purports to appeal from the trial courts failure to return to him money that was confiscated when he was arrested. Court conclude the ruling from which he has appealed is a nonappealable order and dismiss his appeal.

In this employment discrimination action, the trial court granted respondent City and County of San Franciscos (city) motion for summary judgment on appellant Timothy Hessongs action for violation of the state Fair Employment and Housing Act (FEHA). (See Gov. Code, 12900-12996.) On appeal from the subsequent judgment dismissing his action, Hessong contends that (1) his objections to evidence should have been sustained; (2) the city deliberately failed to accommodate him; (3) it deliberately violated the law regarding its duty to accommodate him, specifically by its requirement that he file Americans with Disabilities Act (ADA) forms; and (4) there are multiple triable issue of material fact that preclude summary judgment. Court affirm the judgment.

This case consolidates defendant and appellant Cesar Valadezs direct appeal of the trial courts denial of his motion to vacate his conviction in Alameda County Superior Court case number H36847B (H36847B), and his concurrent petition for a writ of mandate challenging the trial courts denial of his request for a certificate of probable cause to file an appeal of its decision to deny the motion to vacate. Court dismiss the appeal and deny the petition for writ of mandate. On direct appeal appellant also challenges the trial courts denial of his motion to withdraw his guilty plea in Alameda County Superior Court case number H39895A (H39895A). The judgments in H36847B and H39895A are affirmed. The petition for writ of mandamus is denied.

Michael Sawyers (Sawyers) appeals from a summary judgment entered against him on his complaint for racial discrimination and retaliation under the California Fair Employment and Housing Act (FEHA). (Gov. Code, 12900 et seq.) He contends that the trial court erred with respect to his retaliation claim because: (1) the court sustained respondents objections to certain evidence; and (2) there is at least a triable issue of fact material to his claim.Court affirm the judgment.

A modification decision.

Appellants Heather H. (mother) and Robert H. (father) appeal from the juvenile courts orders, pursuant to Welfare and Institutions Code section 366.26,[1] terminating their parental rights with respect to their son, Thomas H. (now three years old). Mother contends (1) the juvenile courts findings that the sibling, parent child, and other family members relationship exceptions to adoption did not apply were not supported by substantial evidence, and (2) the juvenile court failed to require and consider an adequate assessment report before terminating parental rights. Father joins in the arguments raised by mother, and also contends (1) his constitutional and statutory rights to notice were violated when the juvenile court failed to ensure he was properly renoticed regarding the continued section 366.26 hearing, and (2) the order terminating his parental rights must be reversed because the court never made a finding that he was an unfit parent. Court affirm the juvenile courts orders.

Defendant and appellant Stanley Holton appeals from a final judgment revoking probation and imposing sentence following a contested revocation hearing. Appellants counsel has filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) Court affirm.