CA Unpub Decisions

In this sexual harassment case, three of the plaintiffs were asked at their depositions if they suffered any emotional distress as a result of the offensive conduct in the workplace and each answered no. Based on this deposition testimony and other evidence, defendant employer Heart N Soul Tax Services of Vallejo, Inc. moved for summary judgment on the ground that plaintiffs sustained no damages. A critical component of defendants motion was the attempt to negate the existence of all general damages for emotional or mental suffering. The trial court found defendants showing to be sufficient, and granted summary judgment against the three plaintiffs. They now appeal on the grounds that (1) defendant failed to meet its initial burden as moving party because the referenced deposition testimony was insufficient to negate all general damages allegedly caused by the wrongful conduct and (2) other deposition testimony created a reasonable inference that plaintiffs sustained emotional harm in the form of revulsion, humiliation or indignity. Court agree and accordingly reverse the judgment of the trial court.

Appellant D.K. contends (1) the juvenile court failed to comply with applicable law in determining he was not an individual with exceptional educational needs; (2) the juvenile court erred in failing to declare at disposition whether his offenses in the current and previously sustained petitions were misdemeanors or felonies; and (3) the juvenile court abused its discretion in its commitment choice.
Court affirm the order.

Appellant Matthew M., a minor, admitted allegations, contained in three separate juvenile wardship petitions (Welf. & Inst. Code, 602), that he carried a concealed firearm while he was an active participant in a criminal street gang (Pen. Code, 12025, subd. (b)(3)); committed that offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members (Pen. Code, 186.22, subd. (b)(1)); carried concealed on his person a dirk or dagger (Pen. Code, 12020, subd. (a)); in committing that offense, violated probation granted in a prior wardship proceeding; possessed a firearm, after having been previously adjudicated of a felony (Pen. Code, 12021, subd. (a)(1)); and violated probation in committing that offense. Following the subsequent disposition hearing, the juvenile court ordered appellant committed to the California Youth Authority, which is now known as the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ). The court declared appellants maximum period of physical confinement (MPPC) to be nine years four months, consisting of three years for carrying a concealed firearm; five years for the accompanying gang enhancement; and eight months on each of the two remaining offenses. On appeal, appellant contends the juvenile court erroneously failed to exercise its discretion under section 731, subdivision (b) (section 731(b)) in setting the MPPC. Court affirm.

L.T., Sr. appeals from orders terminating his parental rights (Welf. & Inst. Code, 366.26) to his six year old daughter and five year old son.[1] At the section 366.26 hearing, the attorneys for the parents and the children disputed the likelihood that the six year old would be adopted, based on her age and by challenging the suitability of her prospective adoptive parents. Counsel also urged termination would be detrimental to the children based on their sibling relationship. The superior court was not persuaded. It found each child was generally adoptable and therefore rejected any bid to evaluate the suitability of the older childs prospective adoptive parents. It also determined the sibling relationship exception to adoption did not apply. ( 366.26, subd. (c)(1)(E).)
On appeal, appellant contends there was no clear and convincing evidence of his daughters adoptability and in any event the court should have found termination would be detrimental to the children based on their sibling relationship. He also joins in arguments raised in the childrens separate appeal. On review, Court disagree and affirm.

Shawn S. appeals from an order declaring his daughter free from his custody and care (Fam. Code, 7800 et seq.). Appellants appointed appellate counsel submitted a letter dated May 22, 2007, advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). By order dated May 30, 2007, Court extended time for appellant to personally file a letter brief. Having found no claim of trial court error in appellants letter as to matters within the scope of this appeal, Court conclude appellant has abandoned the appeal from the order freeing Kayla L. from his custody and care and dismiss this appeal.

Defendant appeals from the judgment sending him to prison for five years eight months following a jury trial in which he was convicted of two separate counts of indecently exposing himself after already having been convicted of that crime. (See Pen. Code, 314, subd. (1).) The charges were enhanced by two years because Chokr committed the new offenses while he was conditionally released pending trial on other felony charges. (See Pen. Code, 12022.1, subd. (b).)
Chokr contends that his convictions for indecent exposure must be reversed because the court instructed the jury as to the definition of the reasonable doubt burden of proof by using the new instruction on that topic published by the Judicial Council of California (CALCRIM). Alternatively, he requests a remand for resentencing because the trial court failed to follow the probation officers recommendation to refer the case for a diagnostic evaluation to the Department of Corrections (CDC) and because he alleges the upper term was selected in violation of the dictates of Cunningham v. California(2007) 549 U.S. [127 S.Ct. 856]. Court affirm.

Defendant appeals from an order continuing his involuntary treatment as a mentally disordered offender (Pen. Code, 2972). In May 2000, appellant was sentenced to state prison based upon his conviction for terrorist threats (Pen. Code, 422). In March 2001, after serving his sentence, he was committed as a mentally disordered offender (Pen. Code, 2962). His commitment has been extended yearly since that time. On October 26, 2005, another petition was filed to extend his commitment. Following trial, the court found the petition true and extended his commitment for one year. Appellant has filed a timely notice of appeal.

A jury convicted defendant Eli Bryson of 30 counts of lewd and lascivious conduct upon a child under the age of 14 years. (Pen. Code, 288, subd. (a).)[1] In bifurcated proceedings, defendant admitted a prior felony conviction for purposes of a strike prior and a five-year enhancement.

Sentenced to state prison for an aggregate term of 133 years, defendant appeals, contending (1) the trial courts order that defendant pay $2,440 in attorney fees is unauthorized and must be stricken; (2) the trial courts imposition of consecutive terms for counts two through thirty contravenes Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); (3) the sentence of 133 years, a de facto term of life without the possibility of parole, violates the state and federal prohibitions against grossly disproportionate punishment; (4) the trial court abused its discretion in refusing to strike the strike prior and the courts abuse of discretion violates defendants due process rights; and (5) the $24.09 jail classification fee was not orally imposed at sentencing and must be stricken from the minutes and abstract of judgment.
The Attorney General concedes the attorney fee order must be reversed and the matter remanded to the trial court for notice and a hearing. Court accept the concession and remand for notice and a hearing. The minutes and abstract of judgment must be corrected to omit a jail classification fee and include the courts decision on attorney fees. Court reject defendants other contentions and otherwise affirm the judgment.

A jury convicted defendant Allan Francis Davids of assault, a misdemeanor (Pen. Code, 240; undesignated section references are to this code), as a lesser included offense of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)) as charged in count one, and of cultivation of marijuana (Health & Saf. Code, 11358; count two). In bifurcated proceedings, defendant admitted a prior felony conviction and two prior prison term allegations ( 667.5, subd. (b)). The court found that the prior felony conviction constituted a strike prior ( 667, subds. (b) (i), 1170.12). The court sentenced defendant to state prison for an aggregate term of four years eight months, that is, 32 months (the low term of 16 months, doubled for the strike prior) for cultivation plus 2 one-year enhancements for the prior prison terms. The court sentenced defendant to 180 days for misdemeanor assault, to run concurrently to the state prison sentence. Defendant appeals, contending the trial court erroneously denied his motion to suppress ( 1538.5). Court agree and reverse defendants conviction for cultivation of marijuana. Court remand for further proceedings.

Defendant appeals from the judgment after a jury found him guilty as charged of two counts of second degree robbery (Pen. Code, 211; counts 1, 4),[1]two counts of false imprisonment by violence ( 236; counts 2, 5), and one count of assault by means of force likely to produce great bodily injury. ( 245, subd. (a)(1); count 3.) The trial court found true the allegations that as to each of the five counts, defendant suffered several prior serious felony convictions ( 667, subd. (a)(1)), two prior separate prison terms ( 667.5, subd. (b)), and 13 prior strike convictions. ( 667, subds. (b)-(i).) The trial court imposed a total unstayed prison term of 100 years to life plus 28 years.
On appeal, defendant contends imposition of consecutive sentences on two counts of false imprisonment violates section 654 and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). In a supplemental opening brief, he challenges the sufficiency of the evidence to support his conviction for assault with force likely to produce great bodily injury.
Court agree with defendant that his conviction for felony assault must be reversed and order that the abstract of judgment be amended. Court find no other error and shall affirm the judgment as amended.

Defendant was charged with one count of murder (Pen. Code, 187),[1]one count of assault on a child resulting in death ( 273ab), one count of child endangerment ( 273a, subd. (a)) and one count of inflicting corporal injury on a child. ( 273d, subd. (a).) It was alleged as to the last two counts that she personally inflicted great bodily injury on a child within the meaning of section 12022.7, subdivision (d). After the close of the prosecutions case in chief at her jury trial, the trial court granted the prosecutions motion to reduce the charges in counts one and two to a charge of voluntary manslaughter ( 192, subd. (a)) and a charge of inflicting corporal injury on a child. ( 273d, subd. (a).) Both sides waived jury trial and the trial continued as a court trial. The trial court convicted defendant of all four counts and found the great bodily injury allegations to be true. The court sentenced defendant to an aggregate unstayed prison term of 14 years and four months.
On appeal, defendant claims (1) the prosecutor committed prejudicial misconduct by contacting one of her expert witnesses pretrial resulting in a violation of her right to adequately confront and cross-examine the witnesses against her, (2) such misconduct also resulted in a critically weakened defense impermissibly putting her into a position where she was forced to waive her right to jury trial, (3) insufficient evidence supports the convictions, and (4) evidence of defendants interrogation by police was erroneously admitted. As we reject these contentions, Court affirm the judgment.

A jury convicted defendant Eric Deshawn Davis of corporal injury to a spouse in violation of Penal Code section 273.5, subdivision (a), and found true an allegation that he suffered a prior conviction. (Pen. Code, 273, subd. (e)(1); unspecified section references that follow are to the Penal Code.) Defendant admitted a prior strike ( 667, subds. (b) (i) and 1170.12) and was sentenced to an aggregate prison term of 10 years.
On appeal, defendant contends the trial courts failure to adequately articulate its reasons for denying his request made pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)motion was error, and that it abused its discretion in not striking the prior strike. He also contends the trial courts imposition of the upper term violated his Sixth and Fourteenth Amendment rights under Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham). Court affirm the judgment.

A jury convicted defendant Richard Lamont Sims of stalking with a prior conviction for stalking (Pen. Code, 646.9, subd. (c))[1]and stalking in violation of a court order ( 646.9, subd. (b)). The trial court sentenced defendant to an upper term of five years in prison.
On appeal, defendant contends the trial court erred in failing to give a unanimity instruction and improperly revoked his custody credits, and that his upper term sentence violated the rule of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi). Court reinstate the custody credits and otherwise affirm the judgment.

Defendant Bryant Keith Brown was charged with eight counts of second degree robbery (counts 1-5, 7-9), attempted robbery (count 6), personally using a handgun in the commission of counts 2 through 9, having served five prior prison terms, and having been convicted of a serious felony that is a strike for purposes of sentencing under the three strikes law. After a public defender was appointed to represent defendant, the trial court granted his request to represent himself.
Defendant moved to suppress a letter that he sent to the United States Marshal, in which he made inculpatory statements. According to defendant, the public defender representing him at the time [t]old [him] the deal would be a little bit better if [he] confessed to the crimes. The court denied the motion, finding that defendant failed to show the confession was involuntary. Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.