CA Unpub Decisions

After plaintiff Mary Spotts FEHA claims were dismissed on procedural grounds, the trial court granted defendant United Rentals, Inc.s, motion for summary judgment dismissing her lone remaining cause of action for wrongful termination in violation of public policy.
In case No. C050897, Spott appeals from the judgment. She claims that there were triable issues of material fact surrounding her claim for wrongful termination. In case No. C051624, United cross-appeals from the trial courts dismissal of its motion to recover fees incurred in defending Spotts FEHA claims. Court affirm both the judgment and the postjudgment order denying attorney fees.

The case arises from a series of three agreements between plaintiff JVMCM, Inc., which owned Dollar Rent a Car (Dollar), and defendants Internet Automotive Group, doing business as Autosquare USA, Inc. and Westlake Financial Services, which are owned by the same individual.
No objection was raised below to plaintiffs failure to plead the claim of fraudulent misrepresentation or to plaintiffs evidence in support of that claim. Accordingly, the dispositive issue is whether there is substantial evidence to support the unpled claim of fraudulent misrepresentation. Finding none, Court agree with defendants that the evidence is insufficient to support the verdict for fraud.
Court reverse the verdict on the unpled claim of fraud and the resulting punitive damage award. Court affirm the judgment in all other respects.

Defendant Jeffery Scott Amaral appeals after judgment from the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5. We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Thereafter, counsel filed a supplemental brief contending the trial courts imposition of the upper term sentence violated the rule set forth in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham).
Court have reviewed the record on appeal. Court correct an error discovered in our review of the record and address defendants Blakely claim.

Plaintiff Tim Holland filed this action alleging employment discrimination. Defendant Union Pacific Railroad Company (UPRR) successfully moved for summary judgment. In his timely appeal from the ensuing judgment, the plaintiff first contends that the court commissioner who heard the motion lacked jurisdiction over the matter. On the merits, he asserts that his failure to file a timely, verified administrative complaint was excusable. Court reverse.

Defendant KC Ward was convicted in a court trial of felony possession of a firearm by a person previously convicted of a felony (Pen. Code, 12021, subd. (a)(1)), and misdemeanor possession of paraphernalia used for unlawfully injecting or smoking a controlled substance (Health & Saf. Code 11364(a)). Defendant contends that the trial court erred by admitting inculpatory statements made to police officers in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). He argues that the trial court abused its discretion by unfairly shifting the burden of proof from the prosecution to the defense, thereby unreasonably allowing defendants statements into evidence. Court affirm.

In this second appeal in this action by cross complainants Pearle Vision, Inc. (Pearle), Pearle VisionCare, Inc. (Pearle VisionCare) (together, sometimes appellants), appellants assert that the court erred in sustaining cross defendants the California Attorney General and the Director of the California Department of Consumer Affairs' (DCA) demurrer to their cross complaint. That cross complaint against the Attorney General and DCA asserted that Business and Professions Code sections 655 and 2556, as well as other code sections restricting relationships between opticians/optical retailers and optometrists violated, among other things, the commerce clause and due process clause of the federal Constitution. The Attorney General and DCA demurred to the cross complaint, and the court sustained that demurrer without leave to amend and dismissed the cross complaint.
On appeal, Pearle and Pearle VisionCare assert that the court erred in sustaining the Attorney General and DCA's demurrer because the cross complaint properly alleged the challenged laws and regulations violated the commerce clause of the federal Constitution because they (1) discriminate against out of state optical retailers in both purpose and effect; (2) are unduly burdensome on out of state optical retailers; and (3) out of state optical retailers and in-state optometrists are "similarly situated" for purposes of a commerce clause analysis. Pearle and Pearle VisionCare also assert that the cross complaint properly alleges a violation of the due process clause of the federal Constitution because Business and Professions Code section 655, as interpreted by the Attorney General and DCA, does not give parties such as Pearle and Pearle VisionCare fair notice of what practices are in violation of that section. While this appeal was pending, in a case entitled National Ass'n of Optometrists & Opticians v. Lockyer (E.D.Cal. 2006) 463 F.Supp.2d 1116 (NAOO), the federal district court found that Business and Professions Code sections 655 and 2556, as well as some companion statutes and regulations, were unconstitutional because they violated the dormant aspect of the commerce clause. That decision is currently on appeal before the Ninth Circuit Court of Appeals.
The parties have now settled this case by agreeing that the constitutional claims raised in this action will be litigated in federal court by the Attorney General and the plaintiffs in NAOO, and that Pearle and Pearle VisionCare will abide by the final adjudication of that case. In conjunction with that settlement, the parties have stipulated to vacate the trial court's ruling sustaining the Attorney General and DCA's demurrer and dismissal of Pearle and Pearle VisionCare's cross-complaint, so as to avoid the danger of inconsistent rulings and the possibility of regulatory confusion in California. The parties assert that vacation of the superior court's ruling will also promote efficiency by having the issue litigated in a single forum.
Court accept the parties' stipulation under Code of Civil Procedure section 128, subdivision(a)(8) (section 128(a)(8)) and grant the parties' joint motion for vacatur of judgment.

The People charged Bernard A. Hill with selling cocaine base (Health & Saf. Code, 11352, subd. (a))[1](count 1), possessing cocaine base for sale ( 11351.5) (count 2), and possessing narcotics paraphernalia ( 11364) (count 3). The People also alleged that Hill had suffered four prior narcotics related convictions ( 11370.2, subd. (a)), two
prior prison term convictions (Pen. Code, 667.5, subd. (b), 668), and one prior strike conviction (Pen. Code, 667, subds. (b)-(i), 668, 1170.12). A jury found Hill guilty on all counts. Hill subsequently admitted all prior conviction allegations. At sentencing, the court refused to dismiss Hill's strike prior and sentenced him to a total term of 12 years in prison, comprised of eight years on count 1 pursuant to the Three Strikes law, three years for one of the four prior narcotics-related conviction enhancements, and one year for one of the prior prison term enhancements. The court imposed a sentence of 180 days on count 3, and ordered that this sentence run concurrently with the sentence imposed on count 1. The court stayed the sentence on count 2. In addition, the court struck the remaining enhancements. On appeal, Hill claims there is insufficient evidence to support his convictions for selling cocaine base and possessing cocaine base for sale. In addition, Hill claims that the trial court erred in admitting evidence of Hill's commission of an uncharged offense, refusing to allow Hill to recall a witness for the purpose of conducting further examination, refusing to instruct the jury regarding the defense of entrapment, and refusing to dismiss his prior strike conviction. Court affirm the judgment.

In a bench trial, John D. Lockhart was convicted of selling marijuana (Health & Saf. Code, 11360, subd. (a)) and possession of marijuana for sale (Health & Saf. Code, 11359). Lockhart admitted two prior strike convictions (Pen. Code, 667, subds. (b) - (i)) and two prior prison terms ( 667.5, subd. (b)). The trial court granted Lockhart's request to dismiss the prior strike conviction allegations, and sentenced him to three years in prison for selling marijuana and a concurrent two years in prison for possession of marijuana for sale. The court dismissed the two prior prison term enhancement allegations.

Lockhart contends the court erred by imposing a concurrent sentence for the possession for sale count rather than staying execution of the sentence for that count under section 654. In a supplemental brief, Lockhart claims his conviction for possession of marijuana for sale violated double jeopardy principles because under the facts of this case the possession for sale crime is a lesser included offense of the selling crime. He also contends the principles of double jeopardy preclude his conviction for possession for sale even if that offense is not a lesser included offense of sale.
The sentence on the possession for sale count (count 2) is modified to stay execution of the sentence. In all other respects, the judgment is affirmed.

Carl M. Delane entered a negotiated plea to second degree burglary (Pen. Code, 459) and admitted having one prior strike within the meaning of section 667, subdivisions (b) through (i). The trial court sentenced Delane to 32 months in prison: double the lower term of 16 months for burglary . Delane's request for a certificate of probable cause was denied. (Cal. Rules of Court, rule 8.304(b).) The judgment is affirmed.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Quisteen Shum and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted defendant of receiving stolen property. (Pen. Code, 496(a).) In bifurcated proceedings, the trial court found he had six prior convictions for which he served prison terms. (Pen. Code, 667.5, subd. (b).) He was sentenced to prison for eight years and appeals claiming insufficient evidence supports the verdict and the trial court erred in denying his motion to reduce his crime to a misdemeanor. Court reject his contentions and affirm, while directing the trial court to correct an error in the abstract of judgment.

Defendant pled guilty to one count of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and was granted three years of supervised probation on the condition, inter alia, that he keep his probation officer informed of his household pets and give written notice twenty four (24) hours prior to any changes. He here contends that this condition is invalid.
Court therefore remand the case to modify probation condition No. 7 to strike the reference to pets in general but to add a new condition narrowed to deal with dogs and/or animals which pose a foreseeable risk of injury to persons entering the premises.

An original juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a) was filed on September 21, 2006. The petition alleged that minor and appellant, Julian T. (minor) committed the following offenses: (1) count 1 vandalism (Pen. Code, 594, subd. (b))[1]; and (2) count 2 conspiracy to commit vandalism ( 182, subd. (a).)
On September 22, 2006, minor admitted committing count 1 in exchange for a dismissal of count 2 and a deferred entry of judgment. At the disposition hearing, the juvenile court stated the conditions of minors probation, including a condition that minor shall not appear at any court building, including the lobby, hallway, courtroom or parking lot, unless he/she is a party, defendant or subpoenaed as a witness to a court proceeding. The court placed minor on deferred entry of judgment subject to the terms and conditions of the probation report.
Minor filed a timely notice of appeal.

Petitioner Ruby D. (Mother) is the mother of a three-year-old girl (Daughter) and a two-year-old boy (Son). Mother filed this writ petition pursuant to California Rules of Court, rule 8.452(a) challenging an order setting a Welfare and Institutions Code section 366.26 permanency planning hearing as to the children. Mother contends that the juvenile court erred in finding that she had not substantially complied with her case plan and therefore erred in denying her request for additional reunification services. For the reasons provided below, Court reject Mothers challenge and deny her petition.

Arnoldo Trujillo was convicted of four counts of molesting A.R. (Pen. Code, 288, subd. (b)(1).)[1] He was sentenced to an aggravated term on each count, and the terms were imposed consecutively for a total term of 32 years.
Trujillo argues the trial court erred in (1) denying his Wheeler[2]motion; (2) permitting a police officer to testify to the veracity of the victim; (3) excluding evidence that the victim had been molested by Trujillos son; (4) admitting evidence that Trujillo attempted to molest his daughter; (5) refusing to rule on his oral new trial motion at the sentencing hearing; and (6) imposing aggravated sentences on each count.
There is merit to several of Trujillos arguments. The police officer should not have been permitted to testify to the veracity of the victim, and the evidence that Trujillo attempted to molest his daughter was weak. Also, the instructions on the attempted molestation were incomplete. In addition, the trial court should have considered Trujillos new trial motion. As will be explained, we conclude these errors do not require reversal of the conviction. Court vacate the sentence, however, because the trial court relied on aggravating factors not found true by the jury.