CA Unpub Decisions

A jury convicted Defendant of being a felon in possession of a firearm and the trial court selected the upper term of punishment. The issues on appeal are whether the trial court erred in excluding evidence intended to show someone else had been the person in possession of the gun and whether the court erred by imposing the upper term based on facts not found by the jury beyond a reasonable doubt. Court conclude the trial courts evidentiary rulings do not warrant a new trial and the court did not err in imposing the upper term sentence.

Defendant appeals from a judgment after a jury trial in which she was convicted of first degree murder (Pen. Code, 187, subd. (a)), robbery (Pen. Code, 211), and burglary (Pen. Code, 459). On appeal, defendant contends the trial court erred in failing to exclude evidence of a robbery she had committed a few hours prior to the murder. Court conclude the evidence of the prior robbery was admissible under Evidence Code section 1101, subdivision (b), as the prior robbery provided the motive for the charged offenses. Court further conclude the trial court did not err in determining that the evidence of the prior robbery was not more prejudicial than probative. Court therefore affirm.

Defendant appeals from the judgment entered following his conviction by jury for making criminal threats against Sebastian Leal and related offenses. In Rioss sole contention on appeal he claims the evidence is insufficient to sustain this criminal threats conviction. Court affirm.

Gary Williams was convicted by jury of six counts of robbery and one count of attempted robbery arising out of six incidents at separate locations in Los Angeles in December 2004 and January 2005. Defendant was further found to have used a gun in the commission of the offenses. In a bifurcated bench trial, the court found that in 1991 defendant suffered multiple prior convictions under the Three Strikes law and one prior serious felony conviction, all arising from the same superior court case. Defendant was sentenced to six consecutive terms of 25 years to life for robbery and attempted robbery (sentence on one of the robbery counts was imposed concurrently), six consecutive 10-year enhancements for firearm use, and one 5-year enhancement for the prior serious felony conviction.
Court have examined the entire record and are satisfied that appellate counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109110; People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.

The owner of real property appeals from a default judgment entered against him in an action for specific performance of an agreement for the sale of a single family residence. He appeals from the default judgment and from the courts denial of his ex parte request to shorten time for a hearing on his motion to quash/motion to vacate the judgment based on lack of personal jurisdiction. He also contends the trial court erred in denying his motion to quash/motion to vacate without a hearing. Court affirm.

This land use case raises claims under the California Environmental Quality Act (CEQA; Pub. Resources Code, 21000 et seq.), the Planning and Zoning Law (Gov. Code, 65000 et seq.) and the public trust doctrine.
Vineyard Area Citizens for Responsible Growth, Inc. and others (collectively, petitioners) challenged the approval by Sacramento County (County) of a project proposed by AKT Development Corp. and others (collectively, Developer). The newly formed City of Rancho Cordova (City) succeeded to the Countys interest in this case and appears as the sole governmental respondent.
In our initial opinion agreed with the Developer that the CEQA arguments lack merit and we agreed with the City that the zoning and public trust claims lack merit. Accordingly, Court affirmed the judgment. The California Supreme Court granted review and concluded that some of the CEQA arguments had merit. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 (Vineyard).) Accordingly, the cause was remanded to us for further proceedings consistent with this opinion. (Id. at p. 450.) Consistent with that directive, we remand with directions to the trial court to grant the petition for a writ of mandate to compel further environmental review, in accordance with the California Supreme Courts opinion.

Defendant appeals from the judgment and sentence following entry of his guilty plea to one count of resisting arrest by exhibiting a deadly weapon (Pen. Code, 417.8) and admission of a prior violent felony conviction. ( 667.5, subd. (c)(18), 1170.12.) The plea was made incident to a Harvey waiver and with the understanding that at the time of sentencing, defendant could move to strike the prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). At sentencing, the trial court denied defendants Romero motion and sentenced him to an aggregate prison term of eight years. Defendants sole claim on appeal is that the trial court abused its discretion by denying his Romero motion. Court find no error and affirm the judgment.

Defendant pleaded no contest to petty theft with a prior theft related conviction (Pen. Code, 666) and admitted to a prior strike and a prior prison term. The trial court sentenced him to five years in prison, imposed a $200 restitution fine, stayed a $200 parole revocation fine, imposed a $20 court security fee, ordered a 10 percent collection fee, and awarded 194 days of credit (130 days local time and 64 days conduct).
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.

A jury found Defendant guilty of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b)) (count 1), and assault with a firearm ( 245, subd. (a)(2)) (count 2). With respect to both counts, the jury also found that Pratt personally used a firearm with the meaning of section 12022.5, subdivision (a)(1). After the jury returned its verdict, Pratt admitted that he had suffered a prison prior ( 667.5, subd. (b), 668), a serious felony prior ( 667, subd. (a)(1), 668, 1192.7 subd. (c)), and a strike prior ( 667, subds. (b)-(i), 668, 1170.12).
At Pratt's sentencing hearing, the trial court granted Pratt's motion to strike his strike prior.[2] The court sentenced Pratt to a total term of 15 years in prison, consisting of the midterm of six years on count 1, the midterm of four years on the accompanying firearm enhancement, and five years on the prior serious felony enhancement. The trial court stayed the sentence on count 2 and the accompanying firearm enhancement pursuant to section 654. The court also stayed the sentence on the prison prior enhancement.
On appeal, Pratt claims the trial court erred in excluding evidence that another suspect might have committed the offenses. Pratt also claims that his conviction for assault with a firearm ( 245, subd. (a)(2)) (count 2), must be reversed because assault with a firearm ( 245, subd. (a)(2)) is a lesser included offense of assault with a semi-automatic firearm ( 245, subd. (b)) (count 1). Court conclude that the trial court did not err in excluding the evidence of third party culpability. With respect to the lesser included offense issue, the People properly concede that the court erred. Court reverse the judgment as to count 2, and affirm the judgment in all other respects.

Kim C. Jones appeals a summary judgment granted to her employer, the California Department of Correction and Rehabilitation (CDCR), and individual supervisors, Sergeants James Bolin and Gary Kuske, crew officer Michael McMinn, and Robert Hernandez, the warden at the R.J. Donovan Correctional Facility (collectively Respondents).[1] Jones contends the trial court erred in finding she did not present evidence of triable issues of material fact showing: (1) the Respondents' conduct constituted adverse employment actions; (2) a nexus existed between her gender and race and the adverse actions; (3) she was subjected to a severe and pervasive hostile work environment based upon her gender; Jones also contends (4) as a matter of law, her causes of action for assault and battery, emotional distress, and negligent supervision were not barred by the exclusive remedies of the workers' compensation statutes.
Court conclude Respondents met their burden on summary judgment and Jones failed to establish the existence of triable issues of material fact which could lead a reasonable trier of fact to find that she experienced harassment, discrimination and retaliation within the meaning of California's Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.) We conclude the causes of action for assault and battery and emotional distress are barred by the workers' compensation exclusivity rule. The negligent supervision cause of action also fails because it was based on Jones's claims of discrimination and assault and battery. Court affirm.

A jury convicted Defendant with residential burglary (Pen. Code, 459, 460; count 1), grand theft ( 487, subd. (a); count 2), and receiving stolen property ( 496, subd. (a); count 5). McNeely admitted allegations that he suffered 11 no-probation prior convictions ( 1203, subd. (e)(4)), 11 prior prison term convictions ( 667.5, subd. (b), 668), two serious felony convictions ( 667, subd. (a)), and 11 prior strike convictions under the "Three Strikes" law ( 667, subds. (b)-(i),1170.12, 668). The court sentenced McNeely to a state prison term of 38 years and eight months consisting of an indeterminate 25-year-to-life term under the Three Strikes law for the burglary count, a consecutive 3-year upper term for the grand theft count, a consecutive 8-month term for the receiving stolen property count, and two consecutive 5-year serious felony enhancements. On appeal, McNeely contends his convictions must be reversed because (1) the trial court denied him his state and federal constitutional right to self-representation; (2) the court's decision to remove him from the courtroom deprived him of his constitutional and statutory right to be present at his trial; (3) the trial court erred by denying his request for a new trial based on juror misconduct, and further erred by denying him access to juror information; and (4) he was deprived of his federal constitutional rights to a jury trial and due process when the trial court imposed the upper term on his grand theft count and mandatory consecutive sentences under the Three Strikes law based on factual findings not made by a jury or beyond a reasonable doubt.
As Court explain, Court agree that under the circumstances of this case, McNeely established good cause for a hearing under Code of Civil Procedure section 237 for release of personal juror identifying information, which is necessary to assess whether Juror No. 8's misconduct improperly influenced the jury's deliberations. Court further conclude that absent the juror identifying information, the trial court could not adequately assess whether the People rebutted the presumption of prejudice. Court vacate the judgment and remand with directions set forth below.

21st Century Insurance Company (21st Century) petitions for a writ of mandate challenging the trial court's denial of its demurrer to the first amended complaint filed by Sylvia Quintana. The legal issue in this case is identical to the issue in Allstate Insurance Company v. Superior Court (Delanzo) (2007) Cal.App.4th, filed simultaneously with this opinion. Based on Delanzo, Court conclude the court erred in overruling 21st Century's demurrer. Court thus grant 21st Century's petition for writ of mandate, and order the court to vacate its order overruling 21st Century's demurrer and enter a new order sustaining the demurrer.

Allstate Indemnity Company (Allstate Indemnity) petitions for a writ of mandate challenging the trial court's denial of its demurrer to the first amended complaint filed by Donna Collins. The legal issue in this case is identical to the issue in Allstate Insurance Company v. Superior Court (Delanzo) (2007) Cal.App.4th , filed simultaneously with this opinion. Based on Delanzo, Court conclude the court erred in overruling Allstate Indemnity's demurrer. Court thus grant Allstate Indemnity's petition for writ of mandate, and order the court to vacate its order overruling Allstate Indemnity's demurrer and enter a new order sustaining the demurrer.

In 2003 Christopher A. was declared a conservatee under the Lanterman Petris Short Act (LPS Act) (Welf. & Inst. Code, 5350 et seq.). In June 2006, it was the opinion of a San Diego Countypsychiatrist that Christopher was unable to provide for his own food, clothing and shelter because of mental illness. On August 7, 2006, the trial court reestablished the conservatorship of the person of Christopher after he consented to the reestablishment. On October 10, the court denied a motion to vacate the conservatorship order.
The appeal is dismissed.