CA Unpub Decisions

Plaintiff and appellant Dan Mariscal (plaintiff) filed an unfair employee relations practice claim against the City of Los Angeles Department of Public Works (the Department) for purportedly denying him a promotion in retaliation for engaging in protected activity. Plaintiff alleged that he was denied certification as an eligible candidate for a supervisory position because of his activities as a union shop steward representing employees in grievance claims against the Department. Plaintiff further alleged that article X, section 1010(f) of the Los Angeles City Charter (City Charter) required the Department to certify him for the position because his name appeared on a list of eligible candidates at least three times. The City of Los Angeles Employee Relations Board dismissed plaintiffs claim. Plaintiff petitioned for administrative mandamus and asked the trial court to interpret section 1010 (f) of the City Charter to require plaintiffs certification. The trial court denied plaintiffs petition, and this appeal followed. Court affirm the judgment.

In this marital dissolution action, plaintiff and appellant Philip Niedermann (husband) appeals from the trial courts determination that husband separated from defendant and respondent Donna Niedermann (wife) on January 8, 2004. Husband contends the date of separation was much earlier on November 29, 1993, and that the trial courts finding is legally and factually unsupported. Husband further contends the trial court committed reversible error by failing to issue a timely statement of decision after husband requested one. Court affirm the judgment.

USC University Hospital, Inc. (USCUHI) appeals from an order denying its petition to compel arbitration of a dispute between it and the University of Southern California (USC) regarding USCs termination of the agreements governing USCUHIs operation and management of a medical complex (the Complex) on the USC campus. The trial court found that a contractual provision that required arbitration before termination did not apply if the termination was based upon certain events set forth in a different provision. Because USC alleged that it terminated the agreements based upon the latter provision, the trial court denied USCUHIs petition to compel arbitration. Court affirm the trial courts order.

In this juvenile court dependency case (Welf. & Inst. Code 300 et seq.),[1]T.U., the mother of the minor children Destiny L., Christopher J., and Christina J. (Mother, Destiny, Christopher, and Christina, respectively), has petitioned the court for extraordinary writ, seeking relief from the setting of a section 366.26 hearing to determine a permanent plan for the minors and perhaps terminate Mothers parental rights. Mother contends there is insufficient evidence to support the trial courts finding that reasonable reunification services were provided to her after the court made her disposition case plan. Court find sufficient evidence does exist to support the trial courts finding. Therefore Mothers petition denied.

Defendant Daniel James McRoberts was convicted by jury of attempting to kidnap a child under 14 years of age for the purpose of committing a lewd and lascivious act (count I), and attempting to commit a lewd and lascivious act on a child under the age of 14 (count II). He was sentenced to the upper term of five years and six months for count I, and an upper term of four years was imposed for count II, but stayed pursuant to Penal Code section 654. On appeal, defendant raises numerous claims of error, which Court reject and affirm the judgment.

This is one of those disputes that keeps on giving at least to the lawyers involved. This is our third opinion. Our first two forays were largely procedural. This one is substantive. At issue in these two consolidated appeals is the administration of a relatively modest trust and related estates, and an award of costs. Court affirm the judgment regarding the administration issues (C051275), but reverse the cost order to the extent it awards $50,513.52 as forensic accounting costs (C052269).

Following consolidation of two matters pending against him, defendant entered a negotiated plea of no contest to two counts of robbery (Pen. Code, 211) and admitted use of a firearm in connection with one of the offenses (Pen. Code, 12022.53, subd. (b)). All other charges were dismissed in the interest of justice. Defendant was sentenced to a stipulated term of 14 years in state prison. He appeals, contending the trial court erred in denying his motion for continuance and granting the Peoples motion to consolidate. Court conclude defendants contentions are not cognizable on appeal and affirm the judgment.

A jury convicted defendant Sanjeet Singh of carjacking (Pen. Code, 215, subd. (a); further statutory references are to the Penal Code) and second degree robbery ( 211, 212.5, subd. (c))). It found that he personally used a knife ( 12022, subd. (b)(1)) in the commission of the carjacking, but not in the commission of the robbery. Imposition of sentence was suspended and defendant was placed on probation for five years on the conditions, among others, that he serve one year of incarceration with 195 days of credit and pay a $200 restitution fine ( 1202.4) and a $200 restitution fine suspended unless probation is revoked ( 1202.44).
On appeal, defendant contends (1) his trial counsel rendered ineffective assistance by expressly refusing jury instructions on lesser included offenses of robbery, (2) the jury was erroneously instructed with CALJIC No. 2.21.2 on rejection of witness testimony, and (3) the stayed restitution fine must be stricken because section 1202.44 cannot be applied retroactively to this case; the Attorney General concedes this point. Court modify the judgment.

The trial court found defendant Carl Duane Goodsby guilty and sentenced him to five years in state prison for stalking and making criminal threats against E.K. and her family. The court denied defense counsels request pursuant to Penal Code section 646.9, subdivision (m), for a recommendation to the Department of Corrections and Rehabilitation that defendant be certified for mental health treatment at a state hospital. Defendant contends, on appeal, that (1) there was insufficient evidence to prove he made a criminal threat, (2) the court abused its discretion by denying his section 646.9, subdivision (m) request, and (3) the courts imposition of the upper term violated his Sixth and Fourteenth Amendment rights based on the holding in Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm the judgment.

Defendant Ronald Gilbert Jackson entered a plea of no contest to possession of methamphetamine (Health & Saf. Code,

11377, subd. (a); further undesignated statutory references are to the Health & Safety Code) in exchange for dismissal of a remaining count and dismissal of case No. CRF03712. The court suspended imposition of sentence, placed defendant on three years of formal probation pursuant to Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (the Act) (Pen. Code, 1210 et seq.)), and ordered that he pay fees and fines, including a rehabilitation program fee of $510 pursuant to section 11372.7, and a lab analysis fee of $170 pursuant to section 11372.5.
Defendant contends on appeal that (1) the abstract of judgment should be amended to separate the base amount of fines from the penalty assessments, and (2) the courts imposition of the upper term violated his Sixth and Fourteenth Amendment rights based on the holding in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham). Court agree with defendants first contention and direct the trial court to correct this error. Court otherwise affirm the judgment.

On November 19, 2005, Nevada County Sheriffs deputies saw defendant Jason Scott Ortiz driving with a cracked windshield and expired registration tags. The deputies pursued defendant, turning on their patrol cars lights and siren. Defendant initially pulled over, then sped away at a high rate of speed, driving on the wrong side of the road and failing to stop at stop signs. The deputies eventually lost sight of defendant and terminated their pursuit. A few minutes later, Nevada County Police officers saw defendant and gave chase. A California Highway Patrol unit joined the pursuit. Defendant again failed to stop, driving at speeds in excess of 110 miles per hour. He ultimately lost control of his car and spun out. He was arrested and taken to jail, where over eight grams of methamphetamine were found in his pocket. Defendant had been convicted, in December 2000, of vehicle theft (Veh. Code, 10851) and served a prison term for that offense. The judgment is affirmed.

A jury convicted defendant Leroy Kingsley Woods of possession with intent to sell cocaine base (Health & Saf. Code, 11351.5). The jury also found true allegations that defendant had one prior conviction for assault with a deadly weapon (Pen. Code, 245, subd. (a)(1) [hereafter 245(a)(1)])[1]and served three prior prison terms (id., 667.5) for evading a peace officer (Veh. Code, 2800.2), possession of marijuana for sale (Health & Saf. Code, 11359), and assault with a deadly weapon (Pen. Code, 245(a)(1)). The court determined that defendants prior conviction for assault with a deadly weapon was a serious felony, qualifying it as a strike and doubling his sentence under section 667, subdivision (e)(1). In addition to raising claims of prosecutorial misconduct and evidentiary error, defendant attacks the sufficiency of the evidence to support the conviction and the strike enhancement. Court affirm.

After he passed counterfeit $20 bills at a casino, defendant Derek Anthony Hanson pleaded no contest in Yolo County Superior Court (case No. CR F 05 0003574) to making or possessing a fictitious instrument (Pen. Code, 476).
Before he could be sentenced in this action, however, he was convicted in San Mateo County Superior Court (case No. SC06 0875A) of conspiracy (Pen. Code, 182, subd. (a)(1)), and was sentenced to state prison for one year four months. The People concede the error and Court agree.

In 1997, defendant Ernest Leonard Detore was convicted of numerous counts of child molestation and sentenced to 39 years in prison. In 2006, after discovering several sentencing errors, the trial court vacated the original sentence and imposed a corrected sentence of 34 years.
This court denied defendants request for substitution of appellate counsel. However, Court address the issues raised in his supplemental opening brief, in addition to undertaking a review of the entire record as required by Wende, and affirm the judgment.