CA Unpub Decisions

Mark Anthony Berryman appeals from the judgment following his guilty plea to two counts of forgery and one count of second degree commercial burglary. (Pen. Code, 476, 470, subd. (d), 459.)[1] Appellant admitted that he had suffered one prior serious felony conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds .(a)-(d)) and served a prison term for three prior felony convictions ( 667.5, subd. (b)). Appellant contends that the court abused its discretion in denying his motion to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Court affirm.

Defendant Robert Lee Cole was convicted by a jury of 12 counts of lewd conduct with a child (Pen. Code, 288, subd. (a),[1]sodomy of a child ( 269, subd. (a)(3)), rape of a child ( 269, subd. (a)(1)), and a lewd act upon a child by force or fear ( 288, subd. (b)(1)), crimes that were perpetrated on two stepdaughters over a five year period. The jury also rendered special Blakely findings that defendant inflicted great bodily injury, abused a position of trust and confidence and evinced cruelty, callousness and viciousness in committing the offenses.
After the court found that defendant had two prior strike felonies ( 1170.12) and one prior prison term ( 667.5, subd. (b)), he was sentenced to state prison for 630 years to life, plus 14 years. On appeal, defendant raises a host of instructional, evidentiary and sentencing errors by the trial court. With the exception of minor sentence modifications, Court affirm the judgment.

Mark Abraham and Abraham & Associates Insurance Services, Inc., appeal from a judgment of dismissal after the trial court dismissed the action for failure to bring to trial within five years. (Code Civ. Proc., 583.310.) They contend (1) it was impossible to bring the suit to trial within five years because defense counsel was unavailable; (2) defendants are estopped from asserting the five year statute; and (3) the five year period was tolled when defendants were the cause of the delay. Because plaintiffs were not diligent in prosecuting the case, and because the final continuance was due to their lack of diligence, Court reject these contentions and affirm.

Norris H.[1] and Lori S. (together parents) appeal a judgment terminating their parental rights to their minor children, Anthony S., Andre S., and Tatiana S. (collectively the minors) under Welfare and Institutions Code section 366.26.[2] Norris challenges the sufficiency of the evidence to support the court's finding that the minors are adoptable. Lori joins in Norris's argument and challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. Norris joins in Lori's argument. Court affirmed.

In April 2002, Ollie Veasey, an African-American employee of the City of Los Angeles (City) was denied a promotion to the position of Wastewater Collection Supervisor. Believing he had performed well in the interview, Veasey asked the interview panel for feedback. Veasey was told that his answer to one particular question was inadequate. Veasey disbelieved this explanation, and thought the panel was giving [him] the runaround. He chose, however to just let it go and focus on obtaining a different promotion, to Wastewater Treatment Mechanic Supervisor, a promotion that he received in April 2003.
In August 2005, more than three years after Veasey had been denied the promotion, and two years after he had received a better promotion, Veasey brought the instant action, alleging that he was wrongfully denied the Wastewater Collection Supervisor promotion on the basis of race. Summary judgment was entered against Veasey on the basis of the statute of limitations. Court affirm.

Kumeyaay Indians as a result of his mother's ancestry. He is placed with a maternal relative who is also a member of the tribe, and the tribe supports the placement. Ivan's father, Antonio M., claimed Indian heritage through the Potawatomi tribe. At the detention hearing, the court ordered the Agency to provide notice to the Viejas and Potawatomi tribes. Antonio later claimed Indian heritage through the Navajo tribe. At the June 2006 six month review hearing, the court found Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) notice was given.
Antonio appeals the judgment terminating his parental rights. His opening briefs contend the San Diego County Health and Human Services Agency (the Agency) did not comply with the notice provisions of ICWA and the juvenile court did not make a finding pursuant to title 25 United States Code section 1912(f). The judgment terminating parental rights is reversed.

Defendant appeals after he pleaded guilty to possession of marijuana for sale. (Health & Saf. Code, 11359.) He complains that one of his probation conditions was overly broad. Court agree. Court order the probation stricken, but without prejudice to the trial courts modification of the probation terms to include an appropriately drawn condition.

In this consolidated appeal, Patrick Pyles (Pyles) challenges an order and a judgment entered in two separate but related actions. Both of those actions arise out of a subcontract agreement whereby Pyles agreed to perform lath and plaster work on a construction project for which Shook Building Systems, Inc. (Shook) was general contractor. In case No. E039941, Pyles contests an order of dismissal entered after the trial court sustained, without leave to amend, demurrers of American Arbitration Association (AAA) and its assigned arbitrator, Edward J. Costello, Jr. (Costello), to Pyless complaint seeking to enjoin AAA and Costello from proceeding with arbitration of his dispute with Shooka dispute which Pyles insists was not subject to arbitration. In case No. E040730, Pyles challenges a judgment confirming the award entered in Shooks favor after arbitration was allowed to proceed, again contending there never was a contract to arbitrate the underlying dispute.
The dispositive issue in both appeals is whether Pyles, as an individual doing business as Sterling Plastering Company, entered into a valid enforceable subcontract agreement with Shook providing for arbitration of any claim or controversy arising therefrom. Court conclude that there was an enforceable contract, that the arbitration was properly conducted, that judgment was lawfully entered, and that Pyless various arguments to the contrary are meritless.

A modification decision.

A jury found defendant and appellant JeCarr Merchant (hereinafter defendant) guilty of criminal threats (Penal Code,[1] 422; count 1), and felon in possession of a firearm, to wit, a handgun. ( 12021, subd. (a); count 2.) The jury also found that defendant, in the commission of the offense charged under count 1 of the information, did not personally use a firearm. ( 12022.5, subds. (a)(1) & 1192.7, subd. (c)(8).) The court sentenced defendant to four years and eight months in state prison.
Defendant raises various claims of error. First, he contends that the judgment of guilt should be reversed because the trial court refused to give jury instructions on self defense. He maintains that the victim was the initial aggressor and that defendant uttered threats in self defense. Court find that an instruction on self defense was not supported by substantial evidence.

Cynthia Gury (Gury) appeals from the trial courts ruling denying her petition for writ of mandate to set aside the San Bernardino County Employees Retirement Associations (the Association) denial of her application for disability retirement. On appeal, Gury claims the trial court erred in finding certain evidence to be irrelevant, that insufficient evidence supported the courts decision, and that the ruling was vague. Court disagree and affirm the courts ruling.

A jury convicted Bruce Dillard, Sr. (appellant) of petty theft (Pen. Code, 484, subd. (a)). Appellant admitted a prior petty theft conviction, which elevated the current conviction to a felony. Appellant also admitted that he had suffered a prior serious or violent felony conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had served three prior prison terms. The trial court sentenced appellant to a total prison term of seven years, consisting of the midterm of two years for the petty theft conviction, doubled pursuant to his prior strike, plus three consecutive one-year terms for his prison priors. Appellant contends the trial court erred when it denied his Wheeler/Batson motion, and that he received ineffective assistance of counsel. Court disagree and affirm the conviction.

A jury convicted Bart Richard Hughes (appellant) of possession of a fictitious or altered bill or check (Pen. Code, 476) and receiving stolen property ( 496, subd. (a)). The jury acquitted appellant of one count of possession of ammunition by a person prohibited from possession of a firearm ( 12316, subd. (b)(1)). In a bifurcated proceeding, the trial court found four prior prison term allegations to be true. The trial court sentenced appellant to six years in state prison and imposed various fines.
On appeal, appellant contends the trial court erred: (1) when it failed to respond to a note from the jury and to give a unanimity instruction; and (2) when it improperly ordered appellant to pay $900 for the cost of preparing his probation report. Court disagree and affirm. We agree, however, with appellants contention that the matter must be remanded for correction of the abstract of judgment, because the trial court failed to specify the statutory bases for the imposition of fines and fees.

Cristina Joiner petitions for a writ of review (Lab. Code, 5950; Cal. Rules of Court, rule 8.494) contending the Workers Compensation Appeals Board (WCAB) improperly rated her permanent disability under the 2005 permanent disability rating schedule instead of the 1997 schedule in effect at the time of her injuries. Given the parties stipulation that none of the specific statutory exceptions applied that would have authorized the use of the former rating schedule, we agree with the WCAB that the workers compensation administrative law judge (WCJ) appropriately rated Joiners permanent disability under the revised standards. Court therefore deny the petition.