CA Unpub Decisions

On March 21, 2006, appellant Joaquin D., was charged in a petition filed pursuant to Welfare and Institutions Code section 602 alleging that he feloniously possessed a concealed dirk or dagger (Pen. Code, 12020, subdivision (a)(4)). On March 29, 2006, appellant admitted the allegation. On March 29, 2006, the juvenile court ordered appellant to the California Youth Authority (CYA). The juvenile court ordered appellant committed to a maximum term of confinement of four years two months. The court granted appellant custody credit of 415 days and ordered him to pay a restitution fine.
On appeal, Joaquin contends the juvenile court failed to establish an adequate factual basis for the appellants admission that he possessed a dirk or dagger. Appellant contends the juvenile court failed to make a finding that his possession of a dirk or dagger was a felony or a misdemeanor and that it failed to set a maximum term of confinement as required by section 731. Although we find no merit to the first contention, we agree with appellant that his case must be remanded for a proper finding concerning whether the current offense is a misdemeanor or a felony and for the juvenile court to pick a term of confinement based upon the facts and circumstances of appellants case pursuant to section 731.
The dispositional order of the juvenile court setting appellants maximum term of confinement is reversed. The case is remanded for the juvenile court to make a finding pursuant to section 702 and Manzy W. concerning whether the instant offense is a felony or a misdemeanor. Before committing appellant to CYA, the juvenile court shall consider the facts and circumstances of the matter before it in selecting the appropriate term of physical confinement pursuant to section 731, Carlos E., Jacob J., and Sean W. In all other respects, the orders of the juvenile court are affirmed.

Mai M. appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26) to his two-year-old son, Jim M. At the section 366.26 hearing, he as well as the childs mother unsuccessfully asked the court to find that termination would be detrimental to Jim. Each parent claimed to have a beneficial parent/child relationship ( 366.26, subd. (c)(1)(A)) with Jim. Appellant contends the court erred because he produced sufficient evidence to warrant a detriment finding. He also joins in other arguments raised in the mothers appeal (In re Jim M.; F051126) and related to the courts rejection of their section 366.26, subdivision (c)(1)(A) claims. On review, Court conclude the court did not abuse its discretion and affirm.

Sheng Y. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her two-year-old son, Jim M. At the section 366.26 hearing, she as well as the childs father unsuccessfully asked the court to find that termination would be detrimental to Jim. Each parent claimed to have a beneficial parent/child relationship ( 366.26, subd. (c)(1)(A)) with Jim. Appellant contends the courts rejection of her claim was erroneous on a variety of grounds, none of which Court find persuasive. On review, Court conclude the court did not abuse its discretion and affirm.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court issued at a contested review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1]as to her four sons, F., A., S. and I. Court deny the petition.

Defendant was convicted of first degree murder and street terrorism. The jury found true the special circumstance alleging the murder had been committed while defendant was an active gang member and was carried out to further the gangs criminal activities. The jury also found true several conduct enhancements, including a gang enhancement. In light of the true finding on the special circumstance, the trial court sentenced defendant to life in prison without the possibility of parole on the murder conviction; the court also sentenced defendant to the upper term of three years on the street gang terrorism conviction. (The court also imposed a consecutive sentence of 25 years to life on one of the enhancements; this portion of the sentence is not challenged on appeal.)Finally, defendant argues the trial court erred by retroactively imposing a security fee. Court agree. Section 1465.8, which authorizes the security fee, was enacted after defendant committed these crimes. Section 3 prohibits retroactive application of any part of the Penal Code, absent an express declaration of retroactivity. No such declaration exists in section 1465.8. Therefore, the security fee must be stricken.
The imposition of a security fee under Penal Code section 1465.8, subdivision (a), is stricken. The trial court is directed to prepare an amended abstract of judgment staying imposition of sentence on count 2, and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

Labor Code section 3602, subdivision (d), allows an employer that leases or borrows an employee from another employer to fulfill its statutory obligations to obtain workers compensation insurance by contracting with the other employer for the other employer to obtain such coverage. In this case, three client companies allegedly leased workers from an employee leasing company pursuant to an agreement by which the employee leasing company was to obtain workers compensation insurance covering the leased workers. The client companies injured workers were later denied workers compensation coverage under the workers compensation policy allegedly obtained by the employee leasing company. The client companies sued the insurance broker that introduced the client companies to the employee leasing company. The insurance broker tendered its own defense to the employee leasing companys carrier contending it was a third party beneficiary of the workers compensation policy. When a defense was refused, the insurance broker cross complained against the insurance company claiming insurance bad faith. In these consolidated actions Court agree with the insurer that the insurance broker is not a third party beneficiary of the insurance contract.

Plaintiff sued defendant Kaiser Foundation Health Plan, Inc. for medical malpractice and 23 other causes of action. The trial court granted defendants petition to compel arbitration. Following the arbitration, plaintiff filed a motion for judgment notwithstanding the verdict, which the court rejected and took off calendar. The court subsequently dismissed the action. Plaintiff appeals, contending this was error. Court disagree and affirm.

On August 5, 2004, the Santa Clara County District Attorney filed a petition to extend the sexually violent predator commitment of defendant, Jerry Allen Howard, pursuant to Welfare and Institutions Code section 6604.,
Following a hearing conducted pursuant to section 6602, the trial court found there was probable cause to believe that defendant had been convicted of a qualifying sexually violent offense against at least two victims, that he had a diagnosable mental disorder that made it likely that he would engage in sexually violent criminal conduct if released, and that the sexually violent conduct would be predatory in nature. The court ordered a trial to determine whether defendant, by reason of a diagnosed mental disorder, was a danger to the health and safety of others in that he would be likely to engage in acts of predatory sexual violence upon his release from a secure facility.
On appeal, defendant's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, setting forth the facts of the case and requesting that this court review the entire record on appeal but raising no specific issue. Defendant was notified of his right to submit written argument on his own behalf within 30 days; that period has elapsed and we have received no written argument from defendant.
Pursuant to People v. Wende, supra, 25 Cal.3d 436, Court have reviewed the entire record and have concluded that there is no arguable issue on appeal. The judgment is affirmed.

Brandon B. appeals from an order declaring him to be a ward of the court (Welf. & Inst. Code, 602) after he was found to have committed assault with a firearm (Pen. Code, 245, subd. (a)(2)). He contends the trial court erred in failing to state on the record that his offense was a felony and to explain the maximum term of confinement it imposed. Court agree.

Henry Alvarado appeals his conviction, by jury, of home invasion robbery in concert with another (count 1), first degree burglary (count 2), false imprisonment by violence (counts 3, 6), witness dissuasion (counts 4, 7), carjacking (counts 8, 9), forgery (count 10), second degree burglary (count 11), and grand theft (count 12). (Pen. Code, 211, 213, subd. (a)(1)(A), 459, 236, 136.1, subd. (b)(1), 215, subd. (a), 470, subd. (b), 487, subd. (a).) The trial court sentenced appellant to state prison for 13 years 4 months. Appellant challenges the sufficiency of the evidence and contends that the trial court committed evidentiary, instructional and sentencing errors. Court affirm the judgment, vacate the sentence, and remand the case to the superior court for resentencing.

The California Board of Psychology revoked appellant Joel Siegel's license to practice psychology. Appellant petitioned the Superior Court for a writ of mandate, seeking an order requiring the Board to reverse its ruling. The petition was denied. This appeal followed. Court affirm.

A modification decision.

On September 7, 2004, the Kings County District Attorney filed information No. 04CM7416 in superior court charging appellant with battery upon a peace officer while confined in state prison (Pen. Code, 4501.1, subd. (a)) (count 1), battery upon a nonconfined person ( 4501.5) (count 2), and alleging a prior serious or violent felony conviction as to both substantive counts ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He appealed and this court reversed the judgment of conviction in case No. F047070.

Appellant was retried on an amended information essentially setting forth the same substantive counts and special allegations. A jury found him guilty of count 1, not guilty of count 2, and found the special allegation to be true. He appeals from the judgment of conviction upon retrial (case No. F050862). Court briefly outline the procedural history of the case, set forth the facts elicited upon retrial, and examine appellants contentions upon appeal from the judgment upon retrial. The judgment is affirmed.

Jose C. appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26) to his daughter Elaina H. He contends his federal due process rights were violated over the course of Elainas dependency so as to require reversal of the termination order. On review, we conclude that because the superior court never made any unfitness findings related to appellant, it could not terminate his parental rights. Accordingly, Court reverse the termination order with directions.