CA Unpub Decisions

James Joseph Fox entered negotiated guilty pleas to selling a controlled substance (Health & Saf. Code,[1] 11352, subd. (a)) and possessing a controlled substance for sale ( 11351). He admitted a prior conviction of possessing a controlled substance for sale. ( 11378, 11370.2, subd. (a).) After Fox entered the guilty pleas, he retained private counsel and the court relieved appointed counsel. Fox moved to withdraw the guilty pleas. The court held a hearing and denied the motion. It sentenced Fox to prison for the four-year middle term for selling a controlled substance, stayed sentence for possessing a controlled substance for sale (Pen. Code, 654), and struck the prior drug conviction enhancement. The court issued a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)

Plaintiffs, John A. Torres, Ronald L. Saathoff, Cathy Lexin, Terri A. Webster, Sharon K. Wilkinson and Mary Vattimo, and plaintiff-in-intervention, Bruce Herring, are former members of the Board of Administration of the San Diego City Employees' Retirement System (SDCERS).[1] The board members sued the City of San Diego (City) for specific performance and declaratory relief, alleging that under a City resolution and Government Code section 995 the City was required to pay for their defense in a civil action the San Diego City Attorney, Michael Aguirre, filed against them on behalf of the People of California, and in another civil action in which he filed a cross-complaint against them on behalf of the City. The board members obtained summary judgment against the City. The City filed a late notice of appeal and Court dismissed the matter.
Subsequently, the trial court issued an order awarding the board members attorney fees incurred in this action, under the City's resolution. The City has timely appealed the order, but also purports to raise issues pertaining to the summary judgment. We dismiss the appeal to the extent it concerns the summary judgment ruling as Court lack jurisdiction to consider it. Court affirm the order on the attorney fees incurred in this action.

Tomas G. and Mariana G. appeal a judgment terminating parental rights to their son, Tomas G. They also appeal an order denying their petitions for modification under Welfare and Institutions Code section 388. Court affirm the judgment and order.

A jury found defendant and appellant Curtis Purnell Robinson guilty of selling cocaine base. (Health & Saf. Code, 11352, subd. (a).) In a bifurcated trial, the trial court found true the allegations that defendant had two prior convictions of Health and Safety Code section 11351.5, within the meaning of Health and Safety Code section 11370.2, subdivision (a), three prior prison convictions, within the meaning of Penal Code section 667.5, subdivision (b), and one prior strike conviction (Pen. Code, 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). The court sentenced defendant to a total term of 19 years in state prison, which included the upper term of five years for selling cocaine base.
Defendants sole contention on appeal is that the sentence violates his Sixth Amendment right to trial by jury under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and United States v. Booker (2005) 543 U.S. 220. Defendant has submitted supplemental briefing asserting that Cunningham v. California (2007) U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) requires that a jury find aggravating factors true before a trial court may impose the upper term. Court affirm.

Hao Jian appeals from a judgment of dismissal entered after the trial court sustained the Regents of the University of Californias (the Regents) demurrer to his third amended complaint without leave to amend. Jian was acting without the benefit of counsel below, and the trial court had difficulty deciphering his allegations. On appeal, Jian wisely retained counsel to assist him, alleging he should be given leave to amend his complaint one more time. Court agree only with respect to his breach of academic contract claim. Judgment was properly entered as to his other causes of action. Accordingly, Court reverse the judgment only as to the breach of contract claim, and in all other respects, affirm the judgment.

Salvador Lara Garcia appeals from a judgment after a jury convicted him of sex related offenses and found true sex related enhancements. He argues there were instructional and sentencing errors. Court agree there was instructional error, but conclude it was harmless. His other contention has no merit, and Court affirm the judgment.

Tommy Lee McGuire (defendant) was charged by information with the murder of Matthew Large (Large), in violation of Penal Code section 187, subdivision (a). A jury found defendant guilty of first degree murder. The court sentenced defendant to state prison for a term of 25 years to life. Defendant appeals.
Substantial evidence supports the finding that defendant committed murder in the first degree, that is, the willful, deliberate and premeditated killing of Large. (Pen. Code, 189.) Accordingly, Court affirm.

The trial court denied Valerie Drellings petition to prohibit harassment (Code Civ. Proc., 527.6; all further statutory references are to this code, unless otherwise noted). For the reasons expressed below, Court affirm.

Plaintiff Palmia Master Association (the Association) appeals from an order denying its anti SLAPP motion to strike a cross complaint filed by defendant Helene Rufran. The Association contends the cross complaint arose out of its disciplinary hearing against Rufran, which it claims is protected free speech or petitioning activity. While the cross complaint does arise from the disciplinary hearing, the hearing is not protected activity. It does not fall within any of the categories of protected activity specified by the anti SLAPP statute. (Code Civ. Proc., 425.16.) It is not an official proceeding authorized by law and does not involve an issue of public interest. ( 425.16, subd. (e).) Thus, the court correctly denied the motion. Court affirm.

Plaintiff Bryan A. Cassell appeals from a judgment entered after the trial court granted defendant Walters & Wolf Glass Companys motion for summary judgment. We concur with the trial court that several of plaintiffs contentions in opposition to the summary judgment motion were not pleaded in the complaint and that plaintiff raised no triable issues of material fact on those claims properly pleaded. Court therefore affirm the judgment.

On appeal, defendant Ralph Aceves complains that the trial court erred by summarily denying his requests at sentencing to withdraw his guilty plea and for substitute appointed counsel. Pursuant to a previously accepted court offer, the court sentenced defendant, then age 78, to 13 years in prison on six counts of aggravated lewd touching of a child under 14 years of age (Pen. Code, 288, subd. (b)(1)) between March 1989 and December 1993, with an admitted prior rape conviction. For the reasons stated below, Court remand for a hearing on defendants request for substitute counsel after concluding that defendant was not required to obtain a certificate of probable cause.

Appellant Larry Marshall challenges the trial courts grant of summary judgment in favor of Armed Forces Insurance Exchange in this declaratory relief action. The judgment determined the absence of coverage under a homeowners insurance policy for bodily injury Marshall had suffered as a result of being shot multiple times by his former wife, Ellen Barrett, at her parents home in Saratoga where she was then residing. After shooting Marshall and then being criminally prosecuted, Barrett entered a no contest plea to a charge of assault with a firearm and she admitted great bodily injury enhancement allegations. She was sentenced to five years in prison.

Marshall sued Barrett in tort for his injuries. Barrett sought a defense of the action and indemnity from Armed Forces, which had issued a homeowners insurance policy to Barretts parents relating to their property where Barrett resided and where the shooting had taken place.[1] Armed Forces responded with this declaratory relief action, which it filed against Barrett as an insured under the policy and Marshall as Barretts potential judgment creditor under Insurance Code section 11580, subdivision (b)(2).[2][3] Armed Forces sought a judicial determination that it owed no defense under the policy to Barrett for the Marshall claim and that there was no coverage for it, eliminating any policy benefits that Marshall might derive from a judgment against Barrett as an insured. The basis of Armed Forces position was that Barretts shooting of Marshall had been an intentional act expressly excluded from coverage under the policy and as a matter of law under section 533.[4]

Armed Forces ultimately moved for summary judgment. In support of its motion, it urged that Barretts no contest plea to assault with a firearm, the elements of which include the intent to willfully commit an act the direct, natural, and probable consequences of which will be injury to another (People v. Colantuono (1994) 7 Cal.4th 206, 214 (Colantuono)), coupled with Marshalls deposition testimony as to the events of the shooting, established the absence of a triable issue of material fact as to the intentionality of Barretts actions, thus precluding coverage or any other benefit owing under the policy for Marshalls claim. Over Marshalls opposition, the trial court concluded that Armed Forces was entitled to summary judgment. Marshall now appeals, contending that the court below improperly weighed evidence in granting the motion. Like the trial court, on this record that includes inadmissible evidence offered by Marshall that the trial court properly refused to consider, Court conclude that Armed Forces was entitled to summary judgment and Court accordingly affirm.

Defendant Antonio Cruz Hernandez pleaded no contest to one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, 288.5, subd. (a)).[1] The court sentenced defendant to a total prison term of 12 years, based upon a midterm sentence for the count.
On appeal, defendant challenges the courts order that defendant submit to testing for the HIV (human immunodeficiency virus), pursuant to section 1202.1. We hold that there was insufficient evidence to support the courts implied finding, required under section 1202.1, subdivision (e)(6)(A), that there was probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV ha[d] been transferred from the defendant to the victim. Consistently with the Supreme Courts holding in People v. Butler (2003) 31 Cal.4th 1119, 1129 (Butler), Court reverse the judgment, vacate the testing order, and remand the matter for the limited purpose of permitting a further hearing on the issue of HIV testing at the election of the prosecution.

In this juvenile dependency proceeding, the father of a dependent child appeals the juvenile court order terminating his parental rights. He challenges the courts finding that the child is likely to be adopted and that the benefits of adoption outweigh the detriment from severing the biological parent-child relationship. Court find substantial evidence to support the juvenile courts determinations. Court therefore affirm.