CA Unpub Decisions

LaShawnda Trenell OBrien Allen pled guilty to a single count of receiving stolen property. (Pen. Code, 496, subd. (a).)[1] The plea agreement also provided that the People would dismiss the remaining 27 counts in the complaint, and Allen would serve an aggravated term of three years. After obtaining a certificate of probable cause ( 1237.5), Allen argues the judgment must be reversed because the trial court violated section 1192.5 by failing to obtain an adequate factual basis for her plea. Court conclude the trial court erred, but find the error harmless and therefore affirm the judgment.

Ituau Leauasoga appeals from the judgment sending him to prison for two, 25-years-to-life terms for using a gun in the first degree murder of Michael Decker. (See Pen. Code, 187, 12022.5, subd. (a), 12022.53, subd. (d).) On appeal, Leauasoga contends the trial court erroneously instructed the jury regarding one term affecting self-defense and imperfect self defense, the trial court improperly denied his request for juror identification information, and the prosecutor erred in his argument to the jury. Finally, he notes the sentencing court failed to accord him all the days of actual, presentence custody credit to which he was entitled. This last issue is correct as conceded by the Attorney General, and the judgment must be modified to correct the miscalculation. ( 1260.) In all other ways, the judgment is affirmed.

A jury convicted Armaghan Estifi Pirhadi of second degree robbery and found she used a knife in the commission of the offense. The court imposed a total term of three years, selecting the low term of two years for second degree robbery and adding one year for Pirhadis use of a knife. Pirhadi received presentence credits in the amount of 225 actual days and 34 days conduct credit as provided for in Penal Code section 2933.1.
Pirhadi argues the trial court committed prejudicial misconduct by intervening in the examination of the prosecutions complaining witness. She challenges the sufficiency of the evidence to support the jurys knife use finding. She claims absent proof she used a knife the prosecution failed to prove she committed a theft by the use of force or fear. Finally, Pirhadi asserts she is entitled to three additional days of presentence custody credit. The Attorney General concedes Pirhadi should have received 228 actual days presentence credit. Court accept the Attorney Generals concession and order the abstract of judgment corrected to reflect Pirhadi served 228 actual days in custody awaiting trial. In all other respects, the judgment is affirmed.

A jury convicted Freddy Gonzalez of first degree burglary (Pen. Code, 459, 460, subd. (a)),[1] three counts of robbery, ( 211, 212.5, subd. (a)), two counts of false imprisonment ( 236, 237, subd. (a)), assault ( 245, subd. (a)(1)), and misdemeanor vandalism ( 594, subds. (a), (b)(1)). The jury also found defendant personally used a deadly weapon to commit the robbery offenses. ( 12022, subd. (b)(1), 1192.7.) Defendant argues his attorney rendered ineffective assistance of counsel by failing to seek a mistrial or, alternatively, the trial court violated his right to a fair trial by failing to declare a mistrial sua sponte. Specifically, defendant contends a mistrial was required after a witnesss mother complained aloud in Spanish from the gallery that he made a threatening hand gesture at her during trial. Defendant also claims the trial court misinstructed the jury to view his oral statements to police with caution (CALCRIM No. 358). For the reasons discussed below, Court conclude these contentions have no merit, and Court therefore affirm the judgment.

Harvey V. (the father) appeals the termination of parental rights as to twins S.P. and R.P. (collectively the twins or the children). The father argues his petition under Welfare and Institutions Code section 388 asking for reunification services and placement of the children with Harveys mother, Eva P., was incorrectly denied by the trial court. Amy P. (the mother) does not appeal separately, but argues that if we reverse the order terminating the fathers parental rights, the order terminating her rights should be reversed also. Court find no error and affirm.

Appellant, Patricia H. (mother) appeals the jurisdiction and disposition orders made regarding her daughters C. and Amelia. On appeal, mother asserts the court erred by improperly allowing C. to refuse to visit with her, and failing to comply with the statutory requirements of the Indian Child Welfare Act (ICWA).
The order appealed from is affirmed.

Appellant Kevin Leon Morris, Sr. (appellant or Morris)was charged with assault on a custodial officer (Pen. Code, 241.1) and battery ( 243.1), both committed on Correctional Officer Jared Bussard, and resisting a peace officer, Dennis Bierman ( 148, subd. (a)(1)). The information further alleged a prior conviction under the three strikes law ( 1170.12, subds. (a)-(d), 667 subds. (b)-(i)) and three prior prison terms ( 667.5).
A jury found appellant guilty of all three counts. Appellant admitted the prior strike conviction and the prior prison terms. The trial court sentenced him to the upper term of three years on both the assault and battery convictions, and doubled each term under section 1170.12, subdivision (c)(1). The court also sentenced appellant to one year for resisting a peace officer, and ordered the sentences on all three counts to run concurrently. The court imposed three one-year enhancements for each of the prior prison terms under section 667.5, for a total prison term in the underlying case (case No. CR32555) of nine years.
Appellant raised numerous issues in his appeal to this court, including ineffective assistance of counsel, errors in admission of evidence, prosecutorial misconduct, and unconstitutionality of the statutory scheme pertaining to battery on a custodial officer. He also raised a number of sentencing issues, including the claim that his sentence is unconstitutional and must be reversed pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Lastly, appellant also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel and denial of his constitutional right to testify, which we considered with his original appeal.
Appellant submitted a letter on March 9, 2007, requesting that in light of Cunningham we reissue our original opinion with appropriate modification, and without the need for further briefing. Thereafter, on July 19, 2007, our Supreme Court issued decisions in People v. Black (2007) Cal.4th [2007 Cal. Lexis 7604] (BlackII), and People v. Sandoval (2007) Cal.4th [2007 Cal. Lexis 7606] (Sandoval). Court provided the parties the opportunity to file letter briefs discussing the impact of these decisions to this appeal. Court now affirm.

A modification decision.

Plaintiff Kristen H. Niesar appeals from a judgment of the Alameda County Superior Court following entry of summary judgment in favor of defendants Zantaz, Inc., a California corporation (Zantaz) and various other entities and individuals in plaintiffs shareholders derivative lawsuit against them. The superior court granted the defense motion for summary judgment on the ground that a special litigation committee appointed by the Zantaz board of directors made a good faith determination that it was not in the companys best interest to prosecute plaintiffs claim. On appeal, plaintiff contends: (1) the special litigation committee defense is inapplicable to actions such as this, where there are allegations of self dealing by a majority of the corporations board of directors (Corp. Code, 310, subd. (a)), and (2) the trial court erred in determining that there were no triable issues of material fact as to the adequacy of the investigation conducted by the special litigation committee. Court affirm the judgment.

Plaintiff Susan Jama claimed to be injured as a result of a slipping incident at Penguins Restaurant and Bar (Penguins), where she worked. Her employers had no workers compensation insurance, so Jama sued in the Superior Court, as she was allowed to do. A jury heard less than three days of testimony and quickly returned a special verdict, answering no to the first question on the verdict form, whether Jama was injured on the job. Jama contends that submission of that question was an abuse of discretion. Court disagree, and conclude that submission of the question was not improper in the circumstances here and, even if it were, that Jama did not preserve the issue for appeal or show that any such error was reversible. Court thus affirm.

Defendant and appellant Richard Michael Colombo was convicted of second degree burglary (Pen. Code, 460, subd. (b)). Because the trial court erred in admitting, under Evidence Code section 1101, subdivision (b), evidence of three prior theft-related convictions, and this error was prejudicial, Court reverse and remand for a new trial.

Paul Leo Fitzpatrick appeals a felony conviction after a bench trial of one count of making criminal threats (Pen. Code, 422) (hereafter section 422). Appellant was sentenced to the upper term of three years. On appeal, appellant contends the evidence was insufficient to support his conviction and the trial court erred in imposing the upper term sentence. Court disagree and affirm.

Appellant Belinda W. appeals from the juvenile courts orders removing her children, K.B. (now 12 years old) and Ken W. (now nine years old), from her custody, terminating family maintenance services, denying reunification services, and selecting a planned permanent living arrangement as a permanent plan for the children. She contends (1) the juvenile courts order on a supplemental petition filed pursuant to Welfare and Institutions Code section 387[1] was barred by res judicata; (2) there was insufficient evidence to support the order removing the children from parental custody; (3) there was insufficient evidence to support the order denying reunification services to appellant; (4) the court abused its discretion when it placed the children in foster homes without fully considering placement with three relatives who had requested custody; and (5) the courts visitation order delegated too much authority to the social workers. Court affirm the juvenile courts orders.

The Workers Compensation Appeals Board (Board) awarded permanent disability benefits to applicant Catherine Watts using the 1997 permanent disability rating schedule that was in effect at the time of her work-related injury in 2004. Zenith Insurance Company (Zenith), the workers compensation carrier for Wattss employer, petitioned for a writ of review, arguing that the Board should have applied the new permanent disability rating schedule that went into effect on January 1, 2005. (Labor Code, 4660, subdivision (d).) Court agree and annul that portion of the award.