CA Unpub Decisions

Defendant was charged with three drug-use or possession violations along with violation of Vehicle Code section 14601.2, subdivision (a), driving while his license was suspended or revoked as a result of a previous conviction of driving under the influence (DUI). At trial, defendant moved under Penal Code section 1385[1] to dismiss the Vehicle Code violation in order to make him eligible for probation and drug treatment under Proposition 36The Substance Abuse and Crime Prevention Act of 2000.[2] The court denied the motion and defendant was subsequently convicted by a jury on all counts. He later received a prison term of three years. On appeal, defendant contends that the court abused its discretion in refusing to dismiss the Vehicle Code violation since that was the only obstacle in the way of his Proposition 36 eligibility, and he as well as society would benefit from him, an addict, undergoing drug rehabilitation. He further contends that he received ineffective assistance of counsel for his attorneys failure to have renewed the motion to dismiss at sentencing. Court reject these contentions and affirm the judgment.

Donald Lee Valencia pled guilty to possession and transportation of heroin found inside his car during a search that took place in the course of a routine traffic stop. He was ordered to serve eight years in prison.[1] Valencia argues on appeal that his motion to suppress evidence found during the search should have been granted because the arresting officer violated Valencias Fourth Amendment right to be free from unreasonable searches and seizures by unduly prolonging the detention. Court conclude that (1) Valencias constitutional rights were not violated when the arresting officer took reasonable measures to ascertain why Valencia was unable to provide proof of insurance upon request, and (2) in any event, Valencia consented to the search. Accordingly, the motion for suppression was properly denied.

After being charged with five separate sex crimes, defendant Craig John Papero entered into a plea bargain in 2001. He pleaded guilty to one count of sexual intercourse with a minor (Pen. Code, 261.5, subd. (c); all further statutory references are to the Penal Code), one count of oral copulation with a minor ( 288a, subd. (b)(1)), and one count of lewd act upon a 14 or 15-year-old minor ( 288, subd. (c)(1)). In return for his guilty plea, he agreed to probation and a suspended sentence as follows: on the sexual intercourse with a minor count, state prison for the upper term of three years; on the oral copulation with a minor count, a concurrent upper term of three years; on the lewd act, a concurrent upper term of three years. The judgment is affirmed.

Defendant Oliver M. was declared a ward of the court and placed on probation after the court found he committed an assault with a deadly weapon. (Pen. Code, 245, subd. (a)(1).) His appeal alleges that, as a matter of law, there is insufficient evidence to support the finding of an assault because he made no attempt to complete the battery. The judgment is affirmed.

appeals from the judgment of the superior court in favor of his former employer, One Touch Technologies (One Touch), denying Paul relief on his complaint to recover overtime compensation because he was exempt under the administrative exemption. Paul contends the judgment is not supported by substantial evidence. Court affirm.

Plaintiffs appeal from an order denying their motion for attorney fees under the private attorney general doctrine (Code Civ. Proc., 1021.5; hereafter section 1021.5) after they were partially successful in challenging a project to move a residence, clubhouse, and bird growing facilities for a hunting club and to construct a shooting range on the Coon Creek hunting and fishing preserve. They contend they met the statutory requirements for attorney fees under section 1021.5 and the trial court abused its discretion in denying an award of attorney fees without articulating any special circumstances.
Court find no abuse of discretion. Although the evidence as to the Scilacciss pecuniary interest in pursuing the lawsuit was conflicting, there was substantial evidence from which the trial court could determine the costs of litigation were not out of proportion to the Scilacciss individual stake. The Scilaccis had purchased neighboring property at below market value before the lawsuit commenced and had taken actions that indicated an interest in developing that property and therefore an interest in challenging the proposed project.

A jury found defendant guilty of possessing methamphetamine for sale and possessing cocaine for sale, and the court found true an enhancement based on a prior drug-related conviction. She was sentenced to six years eight months in prison, calculated as follows: three years for the cocaine conviction, a consecutive eight months for the methamphetamine conviction, plus a consecutive three years for the enhancement.
On appeal, defendant raises the following eight contentions: (1) the postsubmission substitution of jurors violated her constitutional rights; (2) the trial court prejudicially erred in refusing to excuse Juror No. 9 for misconduct; (3) the trial courts investigation into the juror misconduct was inadequate; (4) the trial court erred in denying her motion to discover information in the police personnel files; (5) the trial court erred in failing to compel the People to disclose the identity of a confidential informant; (6) the cumulative effect of these errors requires reversal of her convictions; (7) the court erred in imposing multiple punishment for her drug convictions; and (8) the courts imposition of consecutive sentences violated her constitutional rights. Disagreeing with all eight contentions, Court affirm the judgment.

Defendant entered a negotiated plea to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and driving when her driving privilege was suspended or revoked. (Veh. Code, 14601.2, subd. (a).) She admitted a prior 2003 conviction of Vehicle Code section 14601. Her plea was in exchange for the dismissal of a charge of transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)), a charge of flight from a peace officer (Veh. Code, 2800.1, subd. (a)), and two enhancement allegations of a prior prison term attached to the methamphetamine charges. (Pen. Code, 667.5, subd. (b).) The trial court sentenced defendant to the upper term of three years in state prison for her possession of methamphetamine conviction and imposed a 30-day concurrent sentence for her driving on a suspended license conviction. Defendant did not seek, nor was she granted, a certificate of probable cause.
Defendants sole contention on appeal is that the trial court erred in imposing the upper term sentence in light of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). Defendant did not file any supplemental brief in response to our order allowing such briefing regarding Cunningham v. California (2007) 549 U.S [166 L.Ed.2d 856] (Cunningham).
Court reject defendants contention of Blakely/Cunningham error because her plea agreement did not preserve for sentencing and appeal the Blakely/Cunningham issue and defendant failed to obtain a certificate of probable cause. Even if Court were able to reach the issue, Court would conclude defendants claim is meritless. Court dismiss the appeal.

Following a contested jurisdiction hearing, the Sacramento County Juvenile Court found that minor A.C. was within the provisions of Welfare and Institutions Code section 602 in that she committed assault upon a school employee (Pen. Code, 241.6; further undesignated statutory references are to the Penal Code) and unlawfully resisted, delayed or obstructed a peace officer ( 148, subd. (a)(1)). She was placed on probation for six months under the supervision of the probation officer.
On appeal, the minor contends the assault adjudication is not supported by sufficient evidence of intent to commit an act that is likely to result in injury. Court affirm the judgment.

Defendant entered a negotiated no contest plea to a charge he conspired to commit the crime of pimping. He received a threeyear prison sentence.
Defendant contends the restitution fines are error, because the trial court never imposed them. The Attorney General agrees.
Under the circumstances, Court choose the remedy urged by defendant. To avoid (among other evils) the anomaly of restitution fines costing more money than they generate, it is appropriate for an appellate court to impose the statutory minimum restitution fine when the trial court has failed to refer to any restitution fine at sentencing. (Cf. People v. Walker (1991) 54 Cal.3d 1013, 1029, citing People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1316.) The judgment is modified,

Appellant, the mother of T. A. and Z. A., appeals from an order of the juvenile court terminating appellants parental rights as to both minors.
Appellant contends the juvenile courts order terminating her parental rights must be reversed because the finding by that court that it was likely the minor would be adopted was not supported by substantial evidence. Appellant also claims the court committed reversible error in failing to inquire into the reasons for the minors absence from the Welfare and Institutions Code section 366.26 hearing. Disagreeing with those contentions, Court affirm.

APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed in part; reversed in part, with instructions.
A jury convicted Owen, Jr. of three counts of forcible oral copulation (Pen. Code, 288a, subd. (c)(2), counts 2, 3 and 4); inflicting corporal injury on a spouse ( 273.5(a), count 11); and battery ( 242, count 12). He was acquitted of two counts of lewd acts on a child ( 288, subd. (a), counts 9 and 10); and the court declared a mistrial regarding five counts of forcible oral copulation on which the jury did not attain unanimous verdicts ( 288a, subd. (c)(2), counts 1 and 5 through 8).
The trial court sentenced Owen to a total of 26 years in prison as follows: the upper term of eight years to be served consecutively for counts 2, 3, and 4; a consecutive two-year term for count 11; and, 180 days for count 12.
Owen contends: (1) a juror committed misconduct by consulting the website of defense counsel during jury deliberations; (2) the trial court erred in denying him access to confidential identifying information regarding eleven jurors, which he needed to support his motion for a new trial; (3) the prosecutor committed prejudicial error under Bradyv. Maryland (1963) 373 U.S. 83 (Brady); (4) the prosecutor committed misconduct during closing argument; and (5) the trial court erred under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) by imposing upper term sentences. Court affirm in part and reverse in part with instructions.

A jury convicted Austin Rios of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b); all further undesignated section references are to the Penal Code), shooting at an inhabited dwelling ( 246), and possession of marijuana for sale (Health & Saf. Code, 11359). The jury found, pursuant to section 12022, subdivision (a)(1), that at the time of the shooting Rios was armed with a firearm, and that, pursuant to section 186.22, subdivision (b)(1), the shooting was done for the benefit of a criminal street gang. The trial court denied Rios motion for a new trial and, applying section 186.22, subdivision (b)(4)(B), sentenced him to 15 years to life for violating section 246, plus a consecutive one year term pursuant to section 12022, subdivision (a)(1), and a concurrent 16 month term for possessing marijuana. The court stayed a concurrent six year term for violation of section 245. Rios appeals, contending that the trial court erred prejudicially by (1) answering a jury question during deliberations without consulting Rios counsel; (2) failing to instruct the jury that the prosecution had violated discovery rules; (3) overruling Rios hearsay objection to a statement contained in a report that Rios had admitted that he was a gang member; and (4) imposing a one year sentence pursuant to section 12022. He also maintains that substantial evidence does not support his conviction for violation of section 246.
Court agree with Rios that the court erred in imposing a one-year sentence under section 12022. Court disagree with his other contentions.

Plaintiff appeals from a summary judgment entered in favor of defendants County of Los Angeles (sued erroneously as Los Angeles County USC Medical Center and County of Los Angeles, Department of Health Services), David Zamorano and Diane Fuqua. Court affirm the judgment.