CA Unpub Decisions

Defendant Juan Ramirez entered pleas of no contest to three counts of child molestation charged in an amended information in exchange for a stipulated prison term of 8-12 years and dismissal of the original charges. The court sentenced him to the upper term on one count and a two-year consecutive term for each of the other two counts, for a total of 12 years.
On appeal, the defendant contends the trial court did not fulfill its duty to determine a factual basis for the pleas, did not obtain his personal waiver of a probation report, and relied on improper aggravating factors in imposing the upper term. Because Court must remand for resentencing in light of the recent decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), his claims should be presented to the trial court.

About 11:00 p.m. on April 24, 2006, defendant Eric James Collins told a Circle K store clerk that he would return to commit a robbery. The clerk knew defendant. They had the same parole officer. About 1:00 a.m. on April 25, 2006, defendant returned, stated he had a gun and demanded the money from the register. The clerk gave defendant $218.18. The stores surveillance camera recorded the robbery on videotape.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed

A jury convicted defendant Eric Burton of willful and premeditated attempted murder (Pen. Code, 664/187, subd. (a)/189), discharging a firearm from a motor vehicle ( 12034, subd. (c)), and assault with a semi-automatic firearm ( 245, subd. (b)). The jury also found true a variety of enhancing allegations appended to the charged offenses. On appeal, Burton asserts the court erred by (1) denying his Wheeler motion (2) denying his Faretta[3] motion, (3) refusing to give a special jury instruction on self-defense, and (4) admitting certain evidence.
The judgment is affirmed.

A jury convicted Edward Booth of first degree murder (Pen. Code,[1] 187, subd. (a), 189), two counts of attempted murder ( 187, subd. (a), 664), two counts of assault with a semiautomatic firearm ( 245, subd. (b)), and two counts of criminal threats ( 422). The trial court sentenced Booth to 122 years to life in prison.
Booth appeals, contending that his sentence is invalid because: (i) the sentence with respect to certain of the counts (counts 4 and 7) was computed in violation of the applicable statutes; and (ii) the sentence was enhanced by the trial judge based on factual findings made by the court and not the jury in violation of his constitutional rights as defined in Blakely v. Washington(2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). As Booth is correct with respect to both of his contentions, Court reverse the judgment and remand for resentencing on the affected counts.

The Chula Vista Elementary School District (District) terminated Garry Edgar from his job as an elementary school custodian. Edgar petitioned for an administrative writ of mandate, contending the District violated his procedural rights and the termination was not supported by the evidence. (Code Civ. Proc., 1094.5.) The superior court granted the petition based on its conclusion that the District did not comply with governing procedural rules. The court issued a writ ordering the District to conduct a new hearing and to issue express findings in support of its decision, and to reinstate Edgar to his previous position.
The District appeals. Court affirm. Substantial evidence supports the trial court's conclusion that the District did not comply with applicable procedural rules before it terminated Edgar. The record further establishes that the school board erred in failing to issue findings to explain its termination decision. In light of this record, Court conclude the trial court did not abuse its discretion in ordering the school board to conduct a new hearing and issue factual findings, and ordering Edgar reinstated until proper proceedings are held.

Robert Austin was convicted of one count of possessing a controlled substance for sale and one count of possession of a controlled substance. It was found true that he had suffered two prison priors within the meaning of Penal Code section 667.5, subdivision (b), and one strike prior within the meaning of section 667, subdivisions (b)-(i). Austin was sentenced to a prison term of five years. He appeals, arguing he was denied the effective assistance of counsel when no motion was made to suppress evidence he now claims was unlawfully seized. Judgment affirmed; petition denied.

This is the third appeal arising from actions brought by Michele Mabie, Ashley Burkhart, Amanda Duran, Elizabeth Subia, Jessica L. Thompson and other named plaintiffs (collectively Respondents) against defendants Kaplan Higher Education Corporation (doing business as Maric College) Kaplan, Inc., and Michael L. Seifert (collectively Maric) that allege Maric violated California's unfair competition laws (UCL) (Bus. & Prof. Code, 17200 et seq.) and Education Code, section 94700 et seq.
Court ruled in a nonpublished opinion, Fletcher et al. v. Quest Education Corp.[1](March 30, 2004, D041048) (Fletcher), the arbitration provision in the parties' contracts was not unconscionable. Fletcher is presently in arbitration regarding claims for damages.
Court ruled in another nonpublished opinion, Mabie et al. v. Kaplan Higher Education Corporation, et al. (June 10, 2005, D043979) (Mabie I), that the trial court properly denied Maric's motion to compel arbitration because the plaintiffs were not signatories or third-party beneficiaries to contracts containing applicable arbitration provisions.
In the present appeal, Maric challenges the trial court's denial of its petition to compel arbitration and stay the litigation in the consolidated action brought by the Respondents none of whom signed contracts with arbitration provisions. Maric contends the trial court erroneously "allow[ed] respondents to avoid arbitration by pleading a class definition limited to students 'who did not agree to arbitrate;' " and, under Code of Civil Procedure,[2]section 1281.4, litigation should be stayed pending the outcome of the Fletcher arbitration. Court affirm the trial court's order.

Heriberto Garcia Magana appeals a judgment arising out of his conviction of assault with a deadly weapon, contending that the evidence introduced at trial was insufficient to support it. Court disagree and affirm.

The juvenile court adjudged Joseph V. a ward of the court under Welfare and Institutions Code section 602 based on true findings that he committed misdemeanor vandalism and possessed graffiti tools and it placed him on supervised probation at his grandparents' home. Joseph appeals, contending substantial evidence does not support the court's true findings. Court find his arguments unavailing and affirm the order.

Shannon R. appeals a juvenile courts order granting the San Diego County Health and Human Services Agency's (the Agency) Welfare and Institutions Code section 388 petition that removed her children, Zachary W. and Cassandra W., from her custody. The order placed the children in the physical custody of their father, Daniel W., and ordered Shannon's visits to take place outside of the family home. Shannon argues the court abused its discretion by ordering her to leave the family home without following the requirements of section 213.5 and California Rules of Court, rule 5.630(b), and no substantial evidence establishes the order was in the children's best interests. Court affirm the orders.

Phillip Nychay entered guilty pleas to transporting and sale of a controlled substance (Health & Saf. Code, 11379, subd. (a)) and possessing a controlled substance for sale ( 11378, subd. (a)). He admitted having suffered three prior convictions for possessing a controlled substance for sale ( 11370.2, subd. (c)) and having served a prior prison term (Pen. Code, 667.5, subd. (b), 668). At the time of the guilty plea, Nychay signed a form that included the following language which the parties characterize as a Blakely waiver: "Except where a prison term has been set by stipulation of the parties, I agree that the sentencing judge may determine the existence or non-existence of any aggravating facts which may be used to increase my sentence on any count or allegation above the middle term, either at the initial sentencing or at any future sentencing in the event my probation is revoked."[2] (See Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 549 U.S., [166 L.Ed.2d 856] (Cunningham).)
The court sentenced Nychay to seven years in prison: the four-year upper term for transporting and sale of a controlled substance, enhanced three years for a prior conviction for possessing a controlled substance for sale. The court imposed a concurrent term on the current conviction for possessing a controlled substance for sale, and struck the two remaining enhancements for prior convictions of possessing a controlled substance for sale and for having served a prior prison term. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)Affirmed.

Araceli C. and Filiberto B. appeal judgments terminating their parental rights to their daughters, five year old Monserrat T. and three year old Yajaira T. They contend the juvenile court abused its discretion by refusing to grant a continuance to allow time for a bonding study. Araceli also asserts substantial evidence does not support the court's finding the beneficial parent child relationship exception of Welfare and Institutions Code section 366.26, subdivision (c)(1)(A) did not apply. Court affirm the judgments.

Paul Lasoya was convicted by a jury of possession of methamphetamine and marijuana for sale (Health & Safety Code, 11378, 11359). True findings were made that he had suffered two prior controlled substance offenses within the meaning of Health & Safety Code section 11370.2, subdivision (c), had a prior serious or violent felony conviction within the meaning of the three strikes law (Pen. Code, 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and four prison prior convictions (Pen. Code, 667.5, subd. (b)). He was sentenced to a prison term of 13 years and four months.
Lasoya contends the court erred in denying his motion to suppress evidence and a Pitchess motion. Court affirm the judgment.

Pilar and Rene M. (together the parents) appeal an order of the juvenile court made at a six-month review hearing continuing placement of their minor son, Nicholas M., in out of home care. The parents contend the court erred by finding Nicholas's return to their custody would be detrimental to his physical or emotional well-being, and the court applied an incorrect legal standard in making its decision. Court conclude the appeal is moot because Nicholas was returned to his parents' custody at the 12 month hearing and we cannot grant effective relief. Accordingly, Court dismiss the appeal.