CA Unpub Decisions

Minor pled guilty to one count of vandalism and the trial court placed him on Success probation. At a subsequent hearing, the court removed minor from Success probation and placed him on regular probation. After minor failed to fulfill the conditions of his probation and failed to appear at a court-ordered hearing, the trial court reinstated minor on Success probation. On appeal, minor contends the modification of his probation terms without the filing of a formal petition infringed upon his constitutional and statutory rights to due process, specifically, the requirements of notice and hearing. Court conclude the proceedings below afforded minor statutorily sufficient notice and hearing such that the courts modification of his terms of probation was proper and Court, therefore, affirm the judgment below.

Christina M. (mother) appeals the juvenile courts September 15, 2006, order denying her petition seeking the return of her three youngest children to her care or, alternatively, further reunification services. (Welf. & Inst. Code, 388.) Mother also appeals an order of the same date establishing a guardianship as the permanent plan for the children. ( 366.26.) The children, Christopher, Donald, and Leticia, were ages 15, 11, and 9, respectively, at the time of the September 15, 2006, section 366.26 hearing. Court find no error, and affirm the orders.

On August 22, 1995, defendants stepson walked into a police department. The stepson, a minor, reported that defendant had pointed an Intertec nine-millimeter handgun at the stepson. Defendant denied that he pointed the weapon at his stepson and stated that the gun was not loaded. The stepson later recanted the allegation to his probation officer. Court have now concluded our independent review of the record and find no arguable issues. The judgment is affirmed.

Gina P., the mother of Elizabeth P., appeals the juvenile courts order terminating parental rights and placing Elizabeth for adoption. Mother claims the juvenile court erroneously determined that the parental benefit exception to the adoption preference did not apply. (Welf. & Inst. Code, 366.26, subd. (c)(1)(A).) Court find no error and affirm the order.

The trial court found Gregg Theodore Videgain (Appellant) violated the terms of his probation and sentenced him to five years in state prison for transporting methamphetamine with a prior prison term enhancement. After the United States Supreme Court vacated this courts original March 7, 2006, opinion following its decision in Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856] (Cunningham), Appellant reasserts his earlier contention that the trial court unconstitutionally imposed an upper term prison sentence without submitting the aggravating factors to a jury. Court again affirm the disposition.

Plaintiff, a wheelchair user, is a faculty member at Bakersfield Community College. He sued the college and the Kern Community College District for disability discrimination, alleging a lack of wheelchair-accessible bathrooms. A jury rejected a claim based on the lack of an accessible bathroom near plaintiffs office, but plaintiff prevailed on a claim based on the lack of accessible bathrooms at a special event on campus. The jury awarded plaintiff $37,500 in compensatory damages and the court awarded him $167,202.20 in attorneys fees. Defendants appeal from the fee award, claiming it should have been reduced because plaintiffs success was only partial. Court reverse the fee award and remand since we cannot be sure from the appellate record that the trial court applied the correct legal standard when exercising its discretion. Specifically, it is not clear whether the court recognized that partial success standing alone can justify a reduction in the award if the court decides under the circumstances that it should. Remand is necessary to permit the trial court to exercise its discretion in light of the correct standard.

Appellant, David Jacobson, was found guilty after a jury trial of felony possession of cocaine (Health & Saf. Code, 11350, subd. (a), count one) and misdemeanor possession of drug paraphernalia (Health & Saf. Code, 11364, count two). In a bifurcated proceeding, the trial court found true allegations that appellant had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The court suspended imposition of sentence and placed appellant on probation. On appeal, appellant seeks independent review by this court of information in the arresting investigators personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and People v. Mooc (2001) 26 Cal.4th 1216 (Mooc).
The judgment is affirmed.

Appellant was injured while repairing a machine at respondent MVP Hydratech, Inc. (Hydratech). Lopez sued Hydratech for negligence. Hydratech moved for summary judgment on the ground that Lopez was a special employee whose exclusive remedy was provided by workers compensation. (Lab. Code, 3602, subd. (a).) The superior court granted Hydratechs motion for summary judgment. Lopez appealed, claiming there was a triable issue of fact regarding whether he was a special employee of Hydratech.
Court conclude that the undisputed material facts establish that at the time of the accident Lopez was in the service of Hydratech and was acting under the directions and control of other Hydratech employees. Consequently, Court conclude as a matter of law that Lopez was a special employee of Hydratech, and his exclusive remedy is workers compensation. Therefore, the judgment is affirmed.

On April 13, 2006, appellant pled no contest to possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, 11370.1, subd. (a), count 1), possession of methamphetamine for sale (Health & Saf. Code, 11378, count 2), being an ex-felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1), count 3), and unlawfully possessing ammunition (Pen. Code, 12316, subd. (b)(1), count 4). Appellant admitted an allegation in count 2 that he was armed with a firearm within the meaning of section 12022, subdivision (c). Appellant also admitted allegations that he was previously convicted of a serious felony within the meaning of the Three Strikes law ( 667, subds. (c) through (j)) and had served two prior prison terms ( 667.5, subd. (b)).
In taking appellants plea, the trial court informed him the maximum prison term he could receive would be 13 years and he would serve a minimum term of 32 months. On August 8, 2006, the court sentenced appellant to prison for the midterm of two years on count 2. The court imposed the midterm sentence on counts 3 and 4, but stayed execution of sentence pursuant to section 654. On count 1, the court stated it was imposing the midterm sentence of two years.[2] The court exercised its discretion to strike the prior serious felony allegation. The court imposed a term of four years for the section 12022, subdivision (c) allegation, plus two years for the two prior prison term enhancements. Appellants total prison term is eight years. The court granted applicable custody credits and imposed a restitution fine.
On appeal, appellant contends and respondent concedes that the trial court erred in applying and then staying sentence on the two prior prison term enhancements to each count. Appellant also contends the court announced a sentence of two years on count 1 and that the abstract of judgment should be corrected to reflect that appellant received the lower prison term. Respondent asserts there is an ambiguity in the courts sentence and the case should be remanded for clarification.

Defendant was convicted of two counts of misdemeanor assault (Pen. Code, 240; all further references are to this code), lesser included offenses of the charged offenses of aggravated assault with a deadly weapon, and two felony counts of making a criminal threat ( 422). He was acquitted of attempted murder and first degree burglary. He was sentenced to the midterm of two years for each of the criminal threat counts. Sentencing on the misdemeanor assaults was suspended. Defendant contends that, as to one of the criminal threat counts, there was insufficient evidence the victim was reasonably in sustained fear for his safety, an element of the offense. As a result, he concludes, the conviction should be reversed or, alternatively, the conviction should be reduced to attempted criminal threat.
Court issued an order requesting the parties to brief whether a single statement made in the course of an altercation constitutes a threat under section 422. Because we conclude there was sufficient evidence of sustained fear, we need not determine the issue of attempted criminal threat or the issue Court raised in our order for further briefing.

In a related case involving the same parties, the trial court granted the defendants anti-SLAPP suit motion and dismissed the plaintiffs lawsuit. A request for attorney fees by defendants followed, and about $100,000 in total fees and costs were awarded.
The plaintiffs have appealed. As we explain (at great length) in the published opinion from the appeal of the judgment of dismissal, the plaintiffs have a meritorious case and the anti-SLAPP suit motion should never have been granted. (See generally Episcopal Church Cases (June, 2007, G036096, G036408, G036868) Cal.App.4th. Accordingly, the order premised on the loss of the anti-SLAPP suit motion must be reversed. Appellants are to recover their costs on appeal.

Labor Code section 6409, subdivision (a), requires a physician who examines a patient for an occupational injury or illness to file a form Doctors First Report of Occupational Injury or Illness (hereafter, Doctors First Report) within five days of that initial examination. Maryam Dayeh sued T.A. Ross, M.D., and his medical practice, Oso Family Medical Group (hereafter, referred to collectively and in the singular as Ross), for negligence contending Rosss delay in completing a Doctors First Report delayed her receipt of workers compensation benefits and treatment for a shoulder injury. A jury returned a verdict in favor of Ross. Dayeh appeals from the judgment and raises numerous evidentiary errors, none of which have merit. Court affirm the judgment.

Luis Teodoro Ponce appeals from a judgment after a jury convicted him of second degree murder and found true the firearm enhancement. Ponce argues the trial court erroneously denied his motion to suppress evidence and the court erroneously admitted evidence. Neither of his contentions have merit. Court affirm the judgment.

This appeal, G036730, arises out of the same basic facts as set forth in the opinion we publish concurrently, Episcopal Church Cases (June, 2007, G036096, G036408, G036868) Cal.App.4th. The published opinion involves a Newport Beach parish. This case involves two local parishes from Los Angeles County (also of the Los Angeles Diocese of the Episcopal Church) who have also chosen to disaffiliate themselves from the Diocese and national church. The two parishes are in Long Beach (All Saints) and North Hollywood (St. Davids). In each instance the Los Angeles Diocese filed suit to establish that the property held by the local parish corporations was held in trust for the Diocese. Normally, the two cases would have been considered by the Superior Court of Los Angeles County, but one of the directors of All Saints in Long Beach is Justice Fred Woods of the Second Appellate District, so the two cases were transferred to the Superior Court of Orange County, where they were considered together with the case involving the Newport Beach parish considered in the published opinion. The judgments are reversed. Further proceedings shall be consistent with the published opinion.