CA Unpub Decisions

Husband has paid support to his wife (respondent) since the termination of their marriage in 1989. Is husband entitled to decrease substantially or cease that support because of his desire to retire at age 70? In objecting to husbands request to do so, is respondent entitled to assert, among other factors, her continuing obligation to care for the parties grandchild.
Court reverse the trial court decision, directing the trial court to reconsider its order in light of husbands decrease in income, any additional income received by respondent from her own investments, and our finding that husband has no obligation to provide for the support to his granddaughter.

A jury convicted defendant of possession of a firearm by a felon (count 1 Pen. Code, 12021, subd. (a)(1)), possession of ammunition by a felon (count 2 12316, subd. (b)(1)), and carrying a loaded firearm, of which he was not the registered owner, on a public street (count 3 12031, subd. (a)(2)(f)). On appeal, defendant contends the trial court erred in denying his motion to suppress the firearm because (1) the discovery of the firearm was a result of defendants illegal detention, and (2) defendant never gave consent to search his car. Court find the courts ruling on the motion to suppress supported by substantial evidence and, therefore, affirm the judgment below.

This is defendants second appeal in this matter. In his first appeal, case No. E036788, we found that the trial court erred in imposing a full, consecutive term on count 2 pursuant to Penal Code section 667.6, subdivision (c) because it was unaware of its sentencing discretion, and we remanded the matter for resentencing for the trial court to exercise that sentencing discretion. We also directed the trial court to prepare and forward to the appropriate agencies an amended abstract of judgment that reflected the noted modifications to defendants sentence and that also reflected that defendant was convicted of assault with intent to commit oral copulation on count 2. In all other respects, we affirmed the judgment. (See People v. Owens (June 20, 2006, E036788) [nonpub. opn.] (Owens I).)
Following remand, the trial court exercised its sentencing discretion as ordered by this court, then imposed the same 25 year sentence it had previously imposed, including the upper term sentence on count 2. In this second appeal, defendant claims the he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) U.S. , [127 S .Ct. 856, 868] (Cunningham), Blakely, supra, 542 U.S. 296, and Apprendiv. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 2. Under the California Supreme Courts recent decision in People v. Black (2007) Cal.4th [2007 WL 2050875] (Black II), Court reject this contention and affirm the judgment.

On November 29, 2005, the Fresno County District Attorney filed a second amended information in superior court charging appellant George Washington, Jr. as follows:
Count Isecond degree robbery (Pen. Code, 211) with personal use of a firearm ( 12022.53, subd. (b)); and Count IIpossession of a firearm by an ex-felon (Pen. Code, 12021, subd. (a)(1)) with a prior serious felony conviction ( 667, subd. (a)(1)). The district attorney specially alleged appellant suffered two prior felony convictions (Pen. Code, 667, subd. (a)(1)), two prior strike convictions ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served a prior prison term ( 667.5, subd. (b)). On November 30, 2005, a jury was impaneled.
The judgment is affirmed. The superior court is directed to correct the abstract to reflect imposition of a concurrent term on count II and to transmit certified copies of the corrected abstract to all appropriate parties and entities.

On January 31, 2006, the Kern County District Attorney filed an information in superior court charging appellant Joshua Shannon McProud aka Robert Steven Buckingham with second degree burglary of a vehicle (Pen. Code, 460, subd (b)). On February 1, 2006, appellant was arraigned and pleaded not guilty to the substantive count. Appellants sister, Roni Shannon Dansby, and mother, Shirlee Baker, testified appellant spent Christmas and New Years with them at their family home in Coleman, Texas. Baker said her mother was suffering from terminal cancer and appellants trip to Texas was a Christmas present to her. Dansby and Baker also said appellant did not leave Texas until January 2, 2000. On that date, he drove home to California with Dansby. Dansby said she and appellant arrived in Santa Clarita on January 3, 2000. Neither Dansby nor Baker had ever heard appellant use the name Joshua McProud.
In view of trial counsels acknowledgment that McProud and appellant Buckingham were one and the same person, we may reasonably conclude that the issuance of the warrant shortly after the commission of the crime tolled the limitations period as a matter of law. Reversal on this ground is not required. The judgment is affirmed.

Appellant contends the trial court unconstitutionally imposed the upper term after he pled guilty to grand theft (Pen. Code, 487, subd. (a)), and unlawful possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), and admitted two prior strike convictions. Allegations that Berry operated a motor vehicle without adequate illumination of the rear license plate (Veh. Code, 24601) and without two mirrors (Veh. Code, 26709, subd. (a)) were dismissed, and the court granted the prosecutions motion to strike three prior prison term allegations. Before entering his plea, Berry acknowledged his understanding he could be sentenced to up to 25 years to life on each count, to be served consecutively, but pursuant to the plea agreement, the court would entertain a motion to strike the priors.
Berry filed a motion requesting the court exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and Penal Code section 1385, subdivision (a), to strike one of the strike priors. At the August 1, 2006, sentencing hearing, the court granted the motion and struck one of the strike priors. The court imposed an aggregate sentence of seven years, four months, comprised of the six year upper term for grand theft and a consecutive 16 months, or one-third the mid-term, for possession of methamphetamine. In imposing the upper term, the court found there were no mitigating factors, but found the following aggravating factors: (1) Berry had been convicted of other crimes for which consecutive sentences would have been imposed; (2) Berry had engaged in violent conduct; (3) Berrys prior convictions as an adult were numerous; (4) Berry served two prior prison terms; (5) Berrys performance on misdemeanor probation, felony probation, and parole had been unsatisfactory in that he violated the terms and committed new law violations; and (6) the way the crime was carried out indicated some degree of sophistication. The court concluded the aggravating circumstances warranted the upper term of six years.
A timely notice of appeal was filed on September 18, 2006. A request for a certificate of probable cause on the stated ground that Berry was claiming bad guidance from my paid attorney was granted on September 20, 2006.
Berry initially filed an appellate brief pursuant to People v. Wende (1979) 25 Cal.3d 436, but subsequently effectively withdrew that brief by filing a brief challenging his upper term sentence in light of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court affirm.

Defendant beat his girlfriend and cohabitant, Suzanna Stuckey, on the afternoon of July 5, 2006. Defendant elbowed Stuckey in the arm (raising a bruise), pushed her against a door, slapped her several times, and hit her in the nose with his closed fist, causing her nose to bleed and to remain cockeyed.
Defendant was charged with one count of corporal injury to a cohabitant, Penal Code section 273.5, subdivision (a). A jury found him guilty after he testified, in the alternative, that (1) he did not beat Stuckey or (2) he did not remember whether he beat her and did not notice if she was bleeding when she left the apartment.
In defendants presentence interview with the probation officer, defendant said Stuckey had a methamphetamine problem and he had kicked her out of his apartment. While not explicitly denying that he beat her, defendant said his trial was not done fairly and that his trial attorney was a dump truck. At the sentencing hearing, the court noted that Stuckey had testified defendant had changed after he had a stroke a few years before. The court found that this was a mitigating factor in terms of sentence, but was not sufficient to make probation appropriate. The court was concerned that defendants continued denial of responsibility for the incident, together with the fact that he had a prior prison term and the present crime was serious, made defendant an inappropriate candidate for probation. The court therefore denied probation and sentenced defendant to the lower term of two years in prison. Defendant filed a timely notice of appeal.

On May 13, 2006, at approximately 5:00 a.m. appellant, Juan Ramon Rodriguez, broke a window to get into his ex-girlfriends apartment. Once inside, Rodriguez slapped his ex-girlfriend, pushed her to the ground, and began choking her. He then took out a fixed blade knife, walked to the bedroom where his ex-girlfriends boyfriend was and began swinging it at the boyfriend. When his ex-girlfriend attempted to stop him, he threw her into the closet, breaking the door. He then threw her on the ground in the hallway and began choking her again. Rodriguez told his ex girlfriend that she was not going to call the police and ripped the telephone line from the wall before leaving. Thus, following independent review of the record, Court find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.

This is an appeal from a judgment entered after no contest pleas pursuant to a plea agreement. Contending he did not understand that the plea bargain would subject him to a prison term of 21 years to life, defendant and appellant Agustin Martinez Moreno asserts that the trial court abused its discretion when it denied his motion to withdraw his pleas of no contest.
After hearing the evidence, the court concluded defendants testimony was not credible; the court denied the motion to withdraw the plea. The court then sentenced defendant to prison for 21 years to life. Defendant filed a notice of appeal.
The judgment is affirmed.

Plaintiff Carl Williams sued his former employer Sun Microsystems, Inc., alleging causes of action for employment discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.), violation of Labor Code section 202 et seq., breach of implied contract, emotional distress, defamation, and invasion of privacy. Plaintiff alleged that he had been disciplined, denied a promotion, raises, bonuses, and stock options based upon his sexual orientation and in breach of an implied in fact contract, and that he had been defamed and suffered false light invasion of privacy by defendants publishing untrue statements about his conduct and behavior with coworkers.
The trial court granted defendants motion for summary adjudication of the FEHA, emotional distress, and Labor Code causes of action. Trial of the remaining contract and tort claims resulted in a defense verdict. Plaintiff appeals. He challenges the trial courts summary adjudication decisions. He also claims that the trial court erred in excluding certain evidence at trial and that it improperly rejected his special instruction pertaining to the tolling of the statute of limitations for the tort claims.
Court reject plaintiffs claims of error relating to summary adjudication of the Labor Code causes of action and to the rulings made at trial. Court agree that the trial court erred in granting summary adjudication of the FEHA cause of action. Accordingly, Court reverse.

Defendants Miguel Angel Ruiz (Ruiz) and Juana Rodriguez Garcia (Garcia) were charged by separate informations with felony possession of cocaine for sale (Health & Saf. Code, 11351) and misdemeanor child endangerment (Pen. Code, 273a, subd. (b)). Ruiz was also charged with felony possession of heroin (Health & Saf. Code, 11350 subd. (a)). Garcia filed a motion to set aside her information pursuant to sections 995 and 739. The court granted the motion as to the charged violation of section 273a, subdivision (b), but denied the motion as to the charged violation of Health and Safety Code section 11351. Ruiz filed a motion to suppress evidence pursuant to section 1538.5 based upon violations of the knock-notice rule of section 1531. The trial court granted Garcias request to join in Ruizs motion. The trial court subsequently granted the motion to suppress and then dismissed all counts against Ruiz and Garcia pursuant to section 1385.
The People appeal the superior courts dismissal order pursuant to section 1238, subdivision (a)(7). The People contend that the police in this case did not violate the knock-notice rule. Further, they contend that, even if there was a violation of the knock-notice rule, the evidence was improperly suppressed.
Court find that there was no knock notice violation and that, even if there was, the evidence should not have been suppressed. Accordingly, Court reverse the order of dismissal and remand the matter to the trial court with directions to deny the motion to suppress.

Defendant Rafael Casas was convicted after court trial of attempted second degree murder (Pen. Code, 664, subd. (a), 187).[1] The court further found that defendant personally used a deadly or dangerous weapon in the commission of the offense ( 12022, subd. (b)(1)); that he committed the offense for the benefit of, or in association with, a criminal street gang ( 186.22, subd. (b)(1)(C)); and that he had served a prior prison term ( 667.5, subd. (b)). Defendant was sentenced to 15 years in state prison.
On appeal, defendant contends that: (1) there is insufficient evidence to support the conviction; (2) he was denied effective assistance of counsel; and (3) there is insufficient evidence to support the finding that he committed the offense for the benefit of, or in association with, a criminal street gang. Court disagree with these contentions and, therefore, affirm the judgment.

Defendant appeals from an order denying his motion to set aside a default judgment entered in favor of plaintiff James R. Orosco. Orosco has failed to file a responsive brief. Because of that failure, we have denied Oroscos request for oral argument, and decide the case on the record and Smiths opening brief. (Cal. Rules of Court, rule 8.220(a)(2).) Court strike the award of punitive damages from the judgment and affirm the order denying relief from default.

Plaintiffs worked as stone masons on a project commissioned by the State of California. While working on a mastclimber platform outside the buildings third floor, plaintiffs heard a loud noise as the platform collapsed. They fell to the ground and were buried under rubble. The state contracted with defendant Clark/Gruen Design Build, Inc. (Clark/Gruen) to act as designer and builder for the project. Clark/Gruen contracted with The Clark Construction Group, Inc. (Clark Construction) as general contractor. Clark Construction contracted with Italian Marble and Tile Co., Inc. (IMT) to affix stone to the outside of the building. Plaintiffs worked for IMT.
Plaintiffs filed suit against Clark/Gruen and Clark Construction (collectively Clark) and the State Department of General Services, Real Estate Services Division (State) (Clark and State are referred to collectively as defendants) for negligence and on products liability theories. Clark moved for summary judgment, arguing it was not liable because it did not actively control the premises or the work performed by plaintiffs. The trial court granted the motion, finding that plaintiffs failed to raise a triable issue of material fact that Clark contributed to plaintiffs injuries by any affirmative conduct. Plaintiffs appeal, contending Clark retained control over safety conditions at the work site and this exercise of control affirmatively contributed to plaintiffs injuries. In addition, plaintiffs contend the court erred in disregarding evidence establishing affirmative conduct. Court affirm the judgment.