CA Unpub Decisions

An information charged Defendant with corporal injury on the parent of his child (corporal injury)with acorporal injuryprior( 273.5, subds. (a), (e)(1)[1]), criminal threats ( 422), and disobedience of a court order ( 166, subd. (a)(4)) and alleged a prison term prior forpossession of a controlled substance ( 667.5, subd. (b)). Outside the presence of the jury, he admitted both priors. The jury found him guilty as charged. The court imposed an aggregate 6-year sentence (a 5-year aggravated term for corporal injury with a corporal injuryprior, a 1-year consecutive term for the prison term prior, a concurrent 3-year aggravated term for criminal threats, and a concurrent 6-month term for disobedience of a court order). ( 18, 19, 166, subd. (a)(4), 273.5, subd. (a), 422, 667.5, subd. (b).) On appeal, he challenges the constitutionality of the courts admission of and instruction on evidence of his corporal injury prior and challenges the constitutionality of the courts selection of aggravated terms without jury findings on circumstances in aggravation. Court remand for a new sentencing hearing but otherwise affirm the judgment.

Misty M. appeals from an order terminating parental rights (Welf. & Inst. Code, 366.26) to her four year old son, J.M. She challenges the superior courts decision on two grounds. One, she argues the juvenile court failed to ascertain whether there was a legal impediment to adoption by the childs relative caregivers. She speculates one of the caregivers may be disqualified from adoption. Two, she contends continuing her relationship with her son would be in his best interest. On review, Court disagree and affirm.

It was alleged in a juvenile wardship petition (Welf. & Inst. Code, 602) filed June 8, 2006, that appellant Santos V., a minor, committed grand theft (Pen. Code, 487, subd. (a)). The petition gave notice of intent to aggregate confinement periods for offenses of which appellant had been adjudicated in prior proceedings. On June 20, appellant denied the grand theft allegation. On August 17, following a jurisdiction hearing, the juvenile court found the allegation true. On October 3, following the disposition hearing, the court readjudged appellant a ward of the juvenile court; declared the instant offense to be a felony; ordered appellant committed to the Kings County Bravo Boot Camp program for a period of not more than one year and not less than 150 days; declared appellants maximum period of physical confinement to be five years six months, based on the instant offense and offenses adjudicated in previous wardship proceedings; awarded appellant credit for 304 days for time served; and placed appellant on probation, with various terms and conditions. Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing.
Following independent review of the record, Court have concluded that no reasonably arguable legal or factual issues exist.

On November 17, 2005, juvenile dependency actions were filed pursuant to Welfare and Institutions Code section 300 for the two minor children of Olivia G. and O. G. On December 18, 2006, the juvenile court terminated its jurisdiction after ordering sole physical custody of the children to O. G. The court ordered one hour weekly visitation for Olivia G. that may be increased or decreased. The minute order, however, states that visits for mother can be increased or decreased, as the custodial parent deems necessary. The judgment is affirmed.

Plaintiff appeals from the trial courts denial of her petition for writ of administrative mandate in which she challenged the decision of the City of Tustin (the City) to terminate her employment as a records clerk for the Citys police department. Ohman was scheduled to return to work for the City on September 24, 2002, following knee replacement surgery. Ohman did not return to work. Instead, the City received several reports from Ohmans physicians, which stated Ohman could not return to work until November 2002 and vaguely referred to a back condition. The reports further stated that when she is released to work, she would be released to work with no restrictions except that she would require a reduced work schedule.
Pursuant to the terms of the memorandum of understanding between the City and Ohmans union, Ohman appealed the decision to terminate her employment to the City manager. Pursuant to the memorandum, an impartial arbitrator held a hearing regarding the dispute and reported his recommendations to the City manager. As permitted by the memorandum, the City manager reviewed the arbitrators report, disagreed with part of it, and upheld Ohmans employment termination as supported by just cause. Ohman filed a petition for writ of administrative mandate in superior court, seeking to overturn the City managers decision. The trial court denied her petition on the ground Ohman failed to disclose any disability, the nature of any disability or her physical limitations to the City. Ohman contends the trial courts decision was not supported by substantial evidence. Court affirm.

Defendant appeals from a judgment after a jury convicted him of domestic battery with corporal injury and the trial court found true he suffered a prior prison term. He argues there were numerous instructional errors, including cumulative instructional error, and his Sixth Amendment confrontation rights were violated. Although we agree the trial court should have instructed the jury sua sponte with CALJIC No. 2.22, Court conclude Lawrence was not prejudiced. None of his other contentions have merit, and Court affirm the judgment.

A jury found defendant guilty, as charged, of two counts of domestic battery with corporal injury (Pen. Code, 273.5, subd. (a)) and one count of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) as against Jane Doe. The jury also found that defendant personally used a knife in the commission of one count of domestic battery (Pen. Code, 12022, subd. (b)(1)). It further found that in committing one count of domestic battery and one count of aggravated assault, defendant inflicted great bodily injury (Pen. Code, 12022.7, subd. (e)). The court stayed the sentence on the aggravated assault conviction and sentenced defendant to state prison for a total term of 10 years. Defendant appeals.
He claims that assault with a deadly weapon is a lesser included offense within the offense of domestic battery with corporal injury as enhanced by Penal Code sections 12022, subdivision (b)(1) and 12022.7, subdivision (e). We disagree. Sentencing enhancements are not taken into consideration in determining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; In re Jose H. (2000) 77 Cal.App.4th 1090.) The judgment is affirmed.

Shady Hollow Homeowners Association (the Association) sued Cambridge Financial Management, Inc. (Cambridge), the successor in interest to the developer of its project, alleging the developer committed fraud by conveying a long-term leasehold interest in a common area parcel rather than a fee interest. The trial court sustained Cambridges demurrer to the second amended complaint without leave to amend and dismissed the action as to Cambridge, finding the causes of action against it were barred by the statute of limitations. The Association appeals, claiming it pleaded sufficient facts to justify late discovery of the fraud. Court affirm.

Defendant was acquitted of murder and attempted murder, but was convicted of criminal street gang terrorism in violation of Penal Code section 186.22, subdivision (a). Defendant argues his conviction on that single count must be reversed. For the reasons specified post, we disagree and affirm the judgment.
Defendant argues there was insufficient evidence of his active participation in a criminal street gang to support the street terrorism conviction. Defendant was seen in a car with other known, admitted gang members at the site of the shooting. The prosecutions gang expert testified that anyone in a car with known gang members, who are in possession of guns or are committing crimes, is himself or herself an active gang member. The evidence was sufficient to support defendants conviction.
Defendant next argues the trial court abused its discretion by admitting into evidence a note written by him while he was incarcerated and awaiting trial. The court did not abuse its discretion in determining the note was relevant and its probative value outweighed its prejudicial impact.
Finally, defendant contends several portions of the prosecutors rebuttal closing argument constituted misconduct. Court disagree. The prosecutors argument was fair comment on the evidence and the inferences that could be drawn from it. The trial court admonished the jury that argument was not evidence and could not be considered in rendering its verdict. In any event, it is not reasonably probable the outcome would have been in defendants favor had the comments by the prosecutor not been made.

Appellant appeals from an order denying her special motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion) Sara Fultons malicious prosecution action. Matthews argues the trial court applied the incorrect standard in ruling on her motion, and, alternatively, Fulton did not satisfy her burden under the correct standard. We need not address whether the court applied the incorrect standard because our review is de novo. Court conclude Fulton satisfied her burden and affirm the order. Court deny Matthewss request for attorney fees below and on appeal.

Defendant appeals from an order denying its motion to compel arbitration of plaintiff Sharon Hogans disability discrimination claim under the Fair Employment and Housing Act (FEHA). The issues are whether the parties arbitration agreement is unconscionable, and whether the agreement satisfies the requirements for arbitration of FEHA claims. Because the arbitration agreement is not substantively unconscionable, Court find no grounds to deny enforcement of the agreement, and reverse the order denying the motion to compel arbitration.

Defendant was convicted by a jury of: driving with willful disregard for safety to evade a peace officer (Veh. Code, 2800.2; count 1); assault on a peace officer with a deadly weapon (Pen. Code, 245, subd. (c); count 2); hit and run driving (Veh. Code, 20002, subd. (a); count 3); resisting arrest (Pen. Code, 148, subd. (a)(1); count 4); and battery on a peace officer (Pen. Code, 243, subd. (b); count 5). The court found that defendant had served two prior prison terms (Pen. Code, 667.5, subd. (b)), and sentenced him to six years eight months in prison as follows: the midterm of four years on count 2, plus eight months (one third the midterm) on count 1, plus one year for each of the prison priors. Defendant contends that the court violated Penal Code section 654 (hereafter 654) by failing to stay imposition of the sentence on count 1. However, substantial evidence supported the determination that counts 1 and 2 were not part of an indivisible course of conduct having a single criminal purpose, and there is no merit to defendants argument that pretrial rulings on venue and severance of charges compelled a contrary result. Accordingly, the judgment is affirmed.

The trial court convicted defendant of possession for sale of cocaine base and methamphetamine. (Health & Saf. Code, 11351.5, 11378.) The court found that defendant had four drug related prior convictions (Health & Saf. Code, 11370.2, subd. (a)), and sentenced him to 16 years in prison. Defendant contends the trial court erred by denying his motion to suppress the cocaine base and methamphetamine found in the trunk of his car. Defendant claims that police searched the trunk as a result of a second patdown search which was illegal, because the police frisked defendant for contraband not weapons. Court disagree and affirm.

A jury convicted defendant Derrick Graham of residential burglary (Pen. Code, 459). The trial court sentenced defendant to four years in prison. Defendant contends he was denied the effective assistance of counsel at his trial. Court need not reach the issue of whether counsels performance was deficient because defendant has failed to show prejudice. Accordingly, Court affirm.