CA Unpub Decisions

In a 2002 jury trial, defendant was convicted of committing a lewd act on a child, 11 year old, B., in 1996. (Pen. Code, 288, subd. (a); count 1.) B. was 17 years old at the time of trial. She testified that, one night when she was staying in defendants house in August 1996, defendant touched her inner thigh several times as she was trying to sleep on a couch. Defendant contends the trial court violated his federal due process rights by admitting evidence of other sexual offenses he committed against three other underage girls, and by instructing the jury it could find this evidence true by a preponderance of the evidence. ( 1108.) He raises these claims to preserve them for federal review, acknowledging that our state Supreme Court rejected an identical due process challenge to section 1108 in People v. Falsetta (1999) 21 Cal.4th 903, 912 through 917 and approved finding prior sexual offense evidence true by a preponderance of the evidence in People v. Reliford (2003) 29 Cal.4th 1007, 1016. Because Court are bound by these decisions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), Court reject defendants claims. Accordingly, Court affirm the judgment.

Plaintiff and appellant (hereafter mother), appeals from the trial courts order summarily denying her Welfare and Institutions Code section 388 petition. Mother filed the petition in April 2006 in order to obtain a modification of the trial courts order establishing legal guardianship as the permanent plan for her young sons, C.G. and B.G., in a section 300 proceeding that San Bernardino County Department of Childrens Services (DCS) initiated in June 2003 after mother was in a car accident in which both boys were injured.[2]More particularly, mother had then 18-month-old C.G. and four-year-old B.G. in the car with her when she had a head-on collision while driving under the influence of cocaine and various prescription medications. Both of the boys were injured in the collision B.G.s injuries included a cut on his lower lip that required four stitches and C.G.s injuries included a contusion on his forehead. Court disagree with mothers claim, for reasons Court now explain, and therefore affirm.

Roger Lewis Jenan argues that the courts failure to follow established procedures to determine whether he was mentally competent requires reversal of the judgment.The Attorney General argues the contrary. Court reverse the judgment.

Cross complainants MBG Industries, Inc. (MBG) and Michelle Ross (Ross) (collectively appellants) appeal from the judgment entered after the trial court granted summary judgment in favor of cross-defendant WestAmerica Bank (WAB) on appellants cross-complaint, which alleged WAB discriminated against them when it denied MBGs loan application. Court affirm.

Appellant, pled no contest pursuant to a negotiated plea to one count each of forcible rape (count 1, Pen. Code, 261, subd. (a)(2)) and first degree burglary (count 2, 459) and admitted allegations in count 1 that the victim was 65 years of age or older ( 667.9, subd. (a)). On February 23, 2006, the court sentenced Ballestero in accord to his plea agreement to a four-year term. On appeal, Ballestero contends the court violated the terms of his plea bargain. Court affirm.

On May 2, 2006, a jury trial commenced against appellant, Kao Kuang Saechao, who was charged with feloniously running a chop shop (Veh. Code, 10802, count one). The information alleged a prior prison term enhancement. (Pen. Code, 667.5, subd. (b)). Appellant was further charged with misdemeanor allegations of altering a vehicles identification number (Veh. Code, 10750, subd. (a), count two) and possession of a component part from a vehicle in which the identification number had been removed (Veh. Code, 10751, subd. (a)). The jury acquitted appellant of count one and found him guilty of both misdemeanor allegations. The court sentenced appellant to concurrent six month jail terms. With credit for time served, appellant was released.

In December 2005, the 15-year-old victim began associating with appellant, Cedric Darnell Williams, Jonathon McKean, Thomas Ray Jackson, Shakore Ogan, and other older men. During January and early February 2006, the victim engaged in numerous acts of intercourse, oral copulation and sodomy with various men including Williams, McKean, Ogan, and Jackson. On separate occasions, Williams and Ogan told the victim they wanted to put her on a prostitution track. Following independent review of the record Court find that no reasonably arguable factual or legal issues exist.

Following a contested urisdictional/dispositional hearing, appellant Manuel C. was found to have violated his probation and was ordered to spend 80 hours in the juvenile court work program. Manuel argues that this finding must be reversed because the juvenile court failed to advise him of his constitutional rights before accepting his slow plea. Court reject this argument because Manuel did not enter a slow plea. Although defense counsel stipulated to certain facts, she aggressively argued against a true finding on the probation violation allegation. The factual stipulation was part of the defense strategy and was not tantamount to pleading guilty. Accordingly, Court affirm.

Appellant, pled no contest as a part of a negotiated plea to unlawful possession of a firearm (count 2/Pen. Code, 12021, subd. (c)(1))and voluntary manslaughter (count 3/ 192, subd. (a)) and admitted a gun use enhancement ( 12022.5) in count 3. On appeal, Bean contends: 1) the court abused its discretion when it imposed the aggravated term on the arming enhancement in count 3; and 2) the court committed Blakely error. Court affirm.

Stanley Marsh petitions this court for a second writ of review (Cal. Rules of Court, rule 8.494; Lab. Code, 5950) following this courts earlier decision concluding the new apportionment provisions of Senate Bill No. 899 (SB 899) applied to all cases not yet final at the time of the legislative enactment on April 19, 2004, regardless of the dates of injury and any interim decision. (Marsh v. Workers Comp. Appeals Bd. (2005) 130 Cal.App.4th 906 (Marsh); Stats. 2004, ch. 34.) Marsh contends that under SB 899s revised apportionment standards, the etermination of the Workers Compensation Appeals Board (WCAB) that his 24 percent increase in permanent disability was 50 percent nonindustrial lacks substantial evidence and that the WCAB should have instead adopted the opinion of the workers compensation administrative law judge (WCJ) finding apportionment inappropriate. Marsh also claims the WCAB exceeded its powers by deferring its disposition on the calculation of benefits until the law of apportionment is settled. Court deny the petition.

Ruth J. is the former prospective adoptive parent of dependent child J.R. She petitions, in propria persona, for relief from a superior court finding that it was in J.s best interests to remove him from her home (Welf. & Inst. Code, 366.26, subd. (n)(3)(B)). On review, Court deny the petition.

Emiliano Avila Chavez petitions for writ of review contending the decision of the Workers Compensation Appeals Board (WCAB) barring benefits under the post termination/layoff defense (Lab. Code 3600, subd. (a)(10)) was not based on substantial evidence. Chavez also contends in order for the defense to preclude workers compensation benefits, there must be an affirmative showing of prejudice under section 5403. Court disagree and deny the petition.

Plaintiffs Eugene Levy and Sharon Battle challenge the judgment entered after the trial court sustained defendant State Farm Mutual Automobile Insurance Companys (State Farm) demurrer to plaintiffs fifth amended complaint without leave to amend, granted State Farms motion to strike class action allegations without leave to amend, and granted defendants motion to dismiss Battle on the grounds of forum non conveniens. Plaintiffs contend they have properly alleged both individual and class claims arising from State Farms practice of omitting certain labor and material costs from its repair estimates, and using its own contracted repair shops in its survey to determine the prevailing competitive repair labor rates included in its estimates.
Court conclude the trial court properly sustained State Farms demurrers without leave to amend. State Farms insurance policy obligated it to repair its insureds vehicles to their preaccident condition. The fifth amended complaint fails to describe how following State Farms repair estimates would not have restored Levys or Battles vehicles to their preaccident condition. Instead, the complaint alleges State Farms repair estimates failed to include items required by industry repair standards. California regulators, however, have not specified any particular repair standards and have not required insurers to follow such standards. Moreover, nothing in plaintiffs insurance contracts required State Farm to follow the standards preferred by plaintiffs. Similarly, no policy provision or law precludes State Farm from including its contracted repair shops in determining prevailing competitive repair labor rates. Court therefore affirm the judgment.

Defendant challenges the jurys finding he was legally sane when he committed attempted murder and assault with a firearm. He contends the court wrongly refused his proposed special instruction clarifying the definition of insanity. Court agree. The court should have instructed the jury that distinguishing right from wrong refers to moral right and wrong, as well as legal right and wrong. Court affirm the judgment of conviction, but reverse the sanity finding and remand for a new sanity trial.