CA Unpub Decisions

Three women identified defendant Marlon Eugene Thomas as their assailant. The defense focused on the inconsistencies between their descriptions, the flaws in the photographic and live lineups and fingerprint evidence, the lack of DNA evidence, and, in the case of one of the victims, the fact that her sexual allegations enlarged over time. The jury hung on the counts involving two of the women but as to the third found defendant guilty of misdemeanor battery and misdemeanor assault (Pen. Code, 242, 240 count one), misdemeanor battery and misdemeanor assault (count two), and assault with intent to commit rape ( 220 count three).
Defendant was sentenced to state prison for the low term of two years. The Attorney General concedes that the convictions for misdemeanor assault must be reversed because they are lesser included offenses of battery.
On appeal, defendant does not challenge the sufficiency of the identity evidence. Given the victims composite drawing, multiple identifications, and the fingerprint evidence, defendant challenges only the sufficiency of the evidence that he intended to rape the victim during the assault. However, the limited scope of appellate review compels us to uphold the jury verdict. Court reverse the convictions for assault and in all other respects affirm the judgment.

Defendant Alexander Ryan Tara pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, 11378) and admitted to being on bail during the commission of the offense (Pen. Code, 12022.1). Defendant also pleaded no contest to a felony charge of evading a peace officer (Veh. Code, 2800.2) in a separate case unrelated to this appeal. The trial court sentenced defendant to four years in state prison. On appeal, defendant contends the trial court improperly denied his suppression motion. Court agree and reverse the judgment.

In this employment discrimination case, plaintiff Linda Jackson asserted she was subjected to racial discrimination and retaliation by her supervisor, Hector Gutierrez, at defendant Department of Motor Vehicles (the Department), resulting in the termination of her employment. The trial court granted summary judgment on the grounds the Department had established a legitimate business reason for its actions and Jackson had failed to show a triable issue as to whether her termination was based on a discriminatory or retaliatory motive.
Court conclude the trial courts ruling was correct on Jacksons causes of action for racial discrimination and harassment, but was incorrect on her causes of action for retaliation and failure to investigate and remediate the alleged retaliation. There is a triable issue as to whether, after he learned Jackson intended to file a discrimination complaint against him, Gutierrez trumped up or exaggerated instances of misconduct by Jackson to justify the reduction of her pay and ultimately the termination of her employment. There is also a triable issue as to whether the Department failed to complete its investigation of Jacksons discrimination complaint in a timely manner and thereby failed to take all reasonable steps necessary to prevent Gutierrezs retaliation against Jackson.
Accordingly, Court reverse, in part, the judgment in favor of the Department.

A jury convicted defendant Ger Lor of attempted murder (count 1; Pen. Code, 664/187, subd. (a); undesignated section references are to the Penal Code) and discharging a firearm at an occupied motor vehicle (count 2; 246). The jury found as to both counts that defendant personally discharged a firearm, causing great bodily injury during the commission of the offense ( 12022.53, subd. (d)) and that the offenses were committed for the benefit of and in association with a criminal street gang ( 186.22, subd. (b)(1)).
Sentenced to an aggregate state prison term of 40 years to life, defendant contends: (1) Insufficient evidence supports the gang enhancement. (2) The trial court imposed an unauthorized sentence by ordering defendant to pay for court-appointed attorneys fees without providing him adequate notice and an opportunity to be heard. Court affirm defendants convictions, but remand the matter to the trial court for resentencing as to the attorneys fees order.

Defendant entered a negotiated plea of no contest to three counts of committing forcible lewd acts upon a child under the age of 14. (Pen. Code, 288, subd. (b)(1).) The offenses occurred between December 2000 and December 2002. Defendant entered his plea on May 2, 2006. On June 9, 2006, in accordance with his plea, defendant was sentenced to state prison for 18 years. The trial court also imposed three $20 security fees pursuant to Penal Code section 1465.8, subdivision (a)(1).
Court agree with the reasoning in People v. Alford that Penal Code section 1465.8 may be applied retroactively: the enactment of Penal Code section 1465.8 as part of an urgency measure to implement the Budget Act of 2003 indicates a legislative intent to implement the statute immediately; retroactive application facilitates the stated objective of the statute, which is to ensure and maintain adequate funding for court security; the imposition of the fee does not interfere with a defendants antecedent rights; a defendant does not have a vested interest in avoiding a minimal contribution to court security; and a defendant does not incur additional punishment from imposition of the fee. Accordingly, Court find no error in the imposition of the fee.
The judgment is affirmed.

Proceedings in mandate as to a court order denying the defendant's motions for discovery and his requests to be present at the hearings on those motions. Jeffrey B. Jones, Judge. Petition granted.
Stanford P. Bryant, a prisoner at Calipatria State Prison, stands charged with two counts of battery on a correctional officer at the prison. The questions presented in this writ proceeding are whether the superior court erred in (1) denying Bryant's request for discovery of the identity of the officer who authored the rules violation report regarding the incident on which the charge is based and of any other reports authored by that person regarding the incident, and (2) denying him the right to attend the hearings on those requests despite the fact that he was representing himself in the proceedings below. Court answer both questions in the affirmative and grant the petition.

Kim Floyd entered negotiated guilty pleas to possessing a weapon while a prison inmate (Pen. Code, 4502, subd. (a)) and battery on a non confined person ( 4501.5). He admitted three prior strikes. ( 667, subds. (b)-(i), 1170.12.) The court struck two prior strikes and sentenced him to prison for 10 years, eight months, consecutive to a term he was serving at the time of sentencing: double the four year upper term for possessing a weapon with a prior strike and a consecutive two years, eight months for battery with a prior strike on a non-inmate, (double one third the upper term). Floyd contends the trial court erred in imposing a sentence of double one third the upper term rather than double one third the middle term for battery with a prior strike on a non inmate.
The judgment is affirmed but for the sentence. The matter is remanded to enable the trial court to modify the abstract of judgment to reflect a 10 year rather than a 10 year, eight month sentence. The trial court shall forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.

Robin K. appeals a judgment of the juvenile court terminating his parental rights to his minor daughter Jamie K. under Welfare and Institutions Code[1]section 366.26. Robin contends: (1) the court erred by summarily denying his section 388 petition for modification; (2) the order selecting adoption as Jamie's permanent plan was based on insufficient evidence of the caregiver's eligibility to adopt; and (3) the evidence supported a finding the beneficial parent child relationship exception of section 366.26, subdivision (c)(1)(A) applied to preclude terminating his parental rights. Court affirm the judgment.

Defendant appeals following his guilty plea to a single count of unlawfully driving or taking of a vehicle. Defendants sole contention on appeal is that a condition of his probation requiring him to submit to and cooperate in field interrogations violates his Fifth Amendment right against self incrimination. He argues the condition should be stricken or modified to include an express exception allowing him to invoke the Fifth Amendment where appropriate. The judgment is affirmed.

On April 5, 2005, an information was filed in the Superior Court of Tulare County charging appellant Gabriel Hernandez and codefendant Ernesto Cardenas with count I, second degree robbery (Pen. Code, 211); count II, possession of a deadly weapon ( 12020, subd. (a)(1)); and count III, active participation in a criminal street gang ( 186.22, subd. (a)). As to counts I and II, it was alleged the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). As to all counts, it was alleged that a principal was armed with a firearm ( 12022, subd. (a)(1)). Appellant and Cardenas pleaded not guilty and denied the special allegations.
On July 12, 2005, the joint jury trial for appellant and Cardenas began. On July 28, 2005, appellant and Cardenas were convicted as charged and all special allegations were found true.
On August 25, 2005, the court sentenced appellant and Cardenas to aggregate terms of 14 years in prison: as to count I, the midterm of three years, plus consecutive terms of 10 years for the gang enhancement and one year for the arming enhancement. The court stayed the terms imposed for the remaining counts and enhancements pursuant to section 654.
On September 26, 2005, appellant (F048910) and Cardenas (F048935) filed timely notices of appeal. These cases have been joined for purposes of argument, but have not been consolidated.
The judgment is affirmed.

On April 5, 2005, an information was filed in the Superior Court of Tulare County charging appellant Ernesto Cardenas and codefendant Gabriel Hernandez with count I, second degree robbery (Pen. Code, 211); count II, possession of a deadly weapon ( 12020, subd. (a)(1)); and count III, active participation in a criminal street gang ( 186.22, subd. (a)). As to counts I and II, it was alleged the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). As to all counts, it was alleged that a principal was armed with a firearm ( 12022, subd. (a)(1)). Appellant and Hernandez pleaded not guilty and denied the special allegations.
On July 12, 2005, the joint jury trial for appellant and Hernandez began. On July 28, 2005, appellant and Hernandez were convicted as charged and all special allegations were found true.
On August 25, 2005, the court sentenced appellant and Hernandez to aggregate terms of 14 years in prison: as to count I, the midterm of three years, plus consecutive terms of 10 years for the gang enhancement and one year for the arming enhancement. The court stayed the terms imposed for the remaining counts and enhancements pursuant to section 654.
On September 26, 2005, appellant (F048935) and Hernandez (F048910) filed timely notices of appeal. These cases have been joined for purposes of argument, but have not been consolidated.
The judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment to reflect appellant was sentenced to an aggregate term of 14 years in prison as follows: as to count I, robbery, the midterm of three years, plus consecutive terms of 10 years for the gang enhancement and one year for the arming enhancement.
The superior court is further directed to transmit certified copies of the amended abstract to all appropriate parties and entities.

David Rea Clark stands convicted, following his no contest plea, of mayhem (Pen. Code, 203). Sentenced to eight years in prison, he now appeals, contending the trial court lacked authority to vacate his initial pre preliminary hearing no contest plea; hence, he is entitled to have that plea reinstated and to be sentenced thereon. For the reasons that follow, Court conclude that reconsideration of this issue, which was the subject of our prior opinion (Clark v. Superior Court (Sept. 28, 2005, F047630) [nonpub. opn.]), is barred by the law of the case doctrine and, accordingly, Court affirm.

Following a jury trial, Daniel Alfaro Jaime (appellant) was convicted in count 1 of throwing an item capable of causing great bodily injury at a vehicle or occupant, with the intent to cause great bodily injury, a felony violation of Vehicle Code section 23110, subdivision (b), and in count 2 of vandalism, a violation of Penal Code section 594, subdivision (a). A Penal Code section 186.22, subdivision (b) gang allegation was alleged as to both counts and found true as to count 1. A Penal Code section 186.22, subdivision (d) allegation was attached to and found true as to count 2.
The trial court sentenced appellant to the middle term of two years in prison on count 1, plus three years for the gang allegation. It also ordered and stayed a two-year term in count 2 and a three year gang enhancement.
Appellant contends that the trial court failed to instruct on the lesser included offense of throwing a substance at a vehicle or person in a vehicle; that the trial court erred when it added a three year gang enhancement to the vandalism charge; and that the trial court misunderstood its discretion to designate the vandalism count as a felony or misdemeanor. Court agree with appellants first and second contentions. Court reverse his conviction in count 1, order stricken the three year gang enhancement in count 2, and remand for further proceedings on both counts.

Victoria Christina Hawlish was charged with five counts of committing lewd acts (Pen. Code, 288, subd. (c)(1)) upon a 15 year old girl between June 1, 2003 and October 15, 2003. A jury convicted Hawlish of three counts of the lesser included offense of attempted lewd acts upon a child. (Pen. Code, 664 & 288, subd. (c)(1).) The court sentenced Hawlish to a prison term of one year and eight months.
Hawlish contends the court should have instructed the jury sua sponte with CALJIC No. 4.71.5 which requires, inter alia, that the jury agree unanimously upon the same specific act constituting the crime. She also asserts evidentiary error and ineffective assistance of counsel. Court reject these arguments and affirm the judgment.