CA Unpub Decisions

A jury convicted appellant, Arthur Henry Hazelton, Jr., of two counts each of aggravated sexual assault on a child under the age of 14 who is 10 or more years younger sodomy (counts 1 & 8/Pen. Code, 269, subd. (a)(3)),[1]aggravated sexual assault of a child under the age of 14 who is 10 or more years younger oral copulation (counts 2 & 9/ 269, subd. (a)(4)), sodomy of a child under the age of 14 who is 10 or more years younger (counts 5 & 12/ 286, subd. (c)(1)), oral copulation of a child under the age of 14 who is 10 or more years younger (counts 6 & 13/ 288a, subd. (c)(1)), and four counts of lewd and lascivious conduct with a child under the age of 14 (counts 3, 4, 10 & 11/ 288, subd. (a)). In a separate proceeding, Hazelton admitted a serious felony enhancement ( 667, subd. (a)), a prior prison term enhancement ( 667.5, subd. (b)),
and allegations that he had a prior conviction within the meaning of the three strikes law ( 667, subds. (b)-(i)).
On appeal, Hazelton contends: 1) his convictions in counts 5, 6, 12, and 13 must be reversed because the underlying offenses are lesser included offenses of the offenses he was convicted of in counts 1, 2, 8, and 9; and 2) his abstract of judgment contains certain errors. Court will find merit to these contentions. In all other respects, Court affirm.

Mother and Father appeal from the juvenile courts order terminating their parental rights to K.M. (born in 2004) pursuant to Welfare and Institutions Code section 366.26. Both parents contend the trial court abused its discretion in designating a prospective adoptive parent before selecting adoption as the permanent plan. ( 366.26, subd. (n)(1).) The judgment is affirmed.

An information charged Simpson with one count of grand theft by embezzlement. ( 487, subd. (a).) A jury trial followed. Debra Stephenson, the owner of TWC Educational Programs, Inc., testified that she had employed Simpson as an office manager. Stephenson identified 10 business checks written between November 24, 2004, and December 28, 2004, exceeding $400, that had been cashed without her authorization. In defense, Simpson testified that Stephenson's husband, Jonathan Schrieber, gave him the checks to process and obtain cash for on his behalf. In rebuttal, Schrieber testified and denied giving Simpson the checks to cash. Schrieber stated that he did not have the authority to sign or stamp checks on Stephenson's behalf. The judgment is affirmed.

Mother contends on appeal the decision constitutes an abuse of discretion because (1) the court failed to consider all of the factors applicable to determinations of the best interest of the child in move away cases, as set forth in the Supreme Courts decision in In re Marriage of LaMusga (2004) 32 Cal.4th 1072 (LaMusga) and (2) there is no reasonable basis for the courts conclusion that transferring custody to father is in the childs best interests. Moreover, mother complains, the court improperly made a conditional order with the intent of coercing her to abandon plans to relocate in order to live with her new husband, who is in the Navy stationed in Hawaii. Because Court agree the record fails to show the trial court properly applied the principles set forth in LaMusga, supra, 32 Cal.4th 1072, Court reverse the order and remand the matter for further proceedings consistent with this opinion.

On appeal, defendant contends the trial court erred when it declined to instruct the jury on violation of section 422.6 (use of force, threats, or destruction of property to interfere with anothers exercise of civil rights) as a lesser included offense to the charged battery and hate crime enhancement. Defendant also claims the trial court failed to perform an adequate investigation into alleged juror bias.
Finding no merit in either of these arguments, Court affirm the judgment.

Defendant Adriana Falk, an employee at Colusa Casino, pled guilty to grand theft after she was caught using other employees passwords to access the casino computer system to credit the player card accounts of her boyfriend and his roommates with over $19,000 in instant reward credits. At the sentencing hearing, the court granted defendant probation on the conditions set forth in the probation officers report.
On appeal from the order granting probation, defendant challenges the trial courts imposition of certain fees and fines. She contends the matter must be remanded for the court to clarify the statutory basis for the fees and fines. Citing section 1203.1b, she also asserts that she was deprived of due process of law because no one advised her that she was entitled to a hearing on her ability to pay the recommended fees and fines.
Court remand the matter to the trial court with directions to (1) separately state all fines, fees, and penalties imposed, with the appropriate statutory basis; (2) modify the order of probation to include a $200 probation revocation fine pursuant to section 1202.44; (3) vacate the portion of the order that requires defendant to pay costs of probation as a condition of probation; and (4) conduct a hearing concerning her ability to pay the costs of probation, unless she enters a knowing and intelligent waiver of her right to a hearing.

Defendant admitted he twice kicked a cat into the air, and pled guilty to two counts of felony cruelty to animals (Pen. Code, 597, subd. (b)), one each in case Nos. CRF04 1198, and CRF04 1455, respectively. The court sentenced defendant to time served, placed him on formal probation, and ordered him to pay (among other things) a $200 stayed probation revocation restitution fine pursuant to Penal Code section 1202.44, and a $35 restitution collection fee pursuant to Penal Code section 1202.4.
On appeal, defendant first contends the probation revocation restitution fine imposed under section 1202.44 must be stricken on ex post facto grounds. The People concede the point and we agree. Both offenses were committed in May 2004. Section 1202.44 became effective on August 16, 2004. (Stats. 2004, ch. 223, 3.) The statute cannot constitutionally be applied to conduct that occurred prior to that date. (Cf. People v. Callejas (2000) 85 Cal.App.4th 667, 670-678.)
The probation revocation restitution fine imposed pursuant to Penal Code section 1202.44 is stricken. The judgment is modified to reflect the imposition of a restitution collection fee imposed pursuant to Penal Code section 1202.4, subdivision (l), in the amount of $20. In all other respects, the judgment is affirmed.

In this action alleging sexual harassment in employment under the Fair Employment and Housing Act (Gov. Code, 12940 et seq. (FEHA)) and common law claims (sexual battery, false imprisonment, and intentional infliction of emotional distress), plaintiff Alissia Myers appeals from summary judgment entered in favor of her former employer, defendant Trendwest Resorts, Inc. (Trendwest). Plaintiff contends triable issues of material fact exist. Plaintiff also appeals from the trial courts award of attorneys fees to Trendwest under the FEHA.
Court reverse the judgment because Trendwest (1) failed to show entitlement to judgment on the FEHA claims alleged in counts one and two and (2) failed to show entitlement to summary adjudication regarding the punitive damages alleged in count one. Court affirm the trial courts grant of summary adjudication in favor of Trendwest on the other counts. Court reverse the order awarding attorneys fees.

Having considered defendants appeal from judgment on a prior occasion (People v. David Darrell Rucker (March 28, 2001) C032283 [nonpub. opn.] (hereafter Rucker I), this court is familiar with the facts and procedural history which we recount from Rucker I.
Defendant, while driving under the influence, crashed his Chevrolet Blazer into a parked Ford truck. A jury found defendant David Darrell Rucker guilty of driving under the influence of an alcoholic beverage (Veh. Code, 23152, subd. (a)) and of driving with a blood alcohol level of .08 percent or greater (Veh. Code, 23152, subd. (b)), with an enhancement for driving with a blood alcohol level of .20 or higher (Veh. Code, 23206.1). The jury also found that defendant committed misdemeanor hit-and-run (Veh. Code, 20002, subd. (a)) while driving on the wrong side of the road (Veh. Code, 21650 ). Because the trial court found that defendant had suffered three prior serious felony convictions within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i)), he was sentenced to a term of 25 years to life in state prison. When sentence was imposed in February 1999, the court also ordered defendant to pay a $10,000 restitution fine.
On the prior appeal, defendant challenged only a jury instruction. Court rejected his contention and affirmed the judgment. On September 28, 2005, more than four years later, defendant sought modification of the restitution fine, claiming insufficient evidence supports a finding of his ability to pay. Defendant claimed that at the prison inmate pay rate, the amount he would pay in restitution in the minimum 16 years on his
25-year-to-life term would not exceed $922.25. On February 22, 2006, the trial court denied the motion, finding that the fine imposed was commensurate with the prison term imposed and that defendant failed to demonstrate an inability to pay the amount which does not have to be paid off while defendant is in prison. On March 13, 2006, defendant sought reconsideration. He explained that the sole job he had as a prison inmate was a nonpaying job. He also claimed that prior to his incarceration, he had been unemployed for one year. He noted that even if released at the earliest possible release date, he would be in his sixties and eligible for social security. On March 21, 2006, the trial court denied defendants motion for reconsideration. The judgment is affirmed.

After watching defendant Richard Ernest Evers III park his car, an officer approached, smelled the odor of alcohol, and noticed defendants eyes were bloodshot and watering. Thereafter, the officer discovered defendants driving license was suspended. Defendant was arrested and his blood was analyzed; the analysis showed he had a blood-alcohol level of 0.17 percent.
The judgment is modified pursuant to Penal Code section 654 to stay the three year prison term imposed for count 2. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended

Pursuant to a negotiated settlement, defendant John Blewford High pled guilty to corporal injury on a spouse or cohabitant and admitted a prior conviction for the same offense (Pen. Code, 273.5, subds. (a), (e)(1)). His plea and admission were given in exchange for a state prison sentence of no greater than the middle term of four years, the option to argue for probation, the dismissal of two other counts, and the dismissal of an enhancement for service of a prior prison term.
At sentencing, the court observed that defendant was not eligible for probation unless the court found unusual circumstances for the granting of probation, and the court did not so find. The court also observed that even in the absence of the unusual circumstance limitation on probation, the court would not have granted defendant probation because of his extensive prior conviction record, which included two felony convictions and several misdemeanor convictions.
The court sentenced defendant to the middle term of four years, and imposed restitution fines of $400 each in accordance with Penal Code sections 1202.4 and 1202.45 and a court security fee of $20 (Pen. Code, 1465.8). The trial court awarded a total of 201 days of presentence custody credit.

Mother of the minor, appeals from the judgment of disposition removing the minor from the home and ordering reunification services. Appellant contends substantial evidence does not support the findings for jurisdiction and removal of the minor. Court affirm.

Defendant James Anthony Rhyne pleaded guilty to driving under the influence of alcohol with three prior convictions for driving under the influence (Veh. Code, 23152, subd. (a), 23550) and admitted he had a prior strike conviction (Pen. Code, 1170.12) and had served four prior prison terms (Pen. Code, 667.5, subd. (b)). The charges stemmed from an incident in which defendant was contacted by a highway patrol officer who saw defendants car stopped on the shoulder of a highway onramp. Defendant, who was the only person in the vicinity of the car and acknowledged being its owner, had a blood alcohol level of .11 percent when contacted by the officer. Defendant entered his plea with the understanding that the remaining charges and enhancements would be dismissed and he would be sentenced to state prison for 10 years. The trial court denied probation and sentenced defendant in accordance with the plea agreement. The judgment is affirmed.

In Sutter County case No. CRF05941, following a bench trial, the trial court found defendant Angela Marie Campuzano guilty of possession of methamphetamine for sale (Health & Saf. Code, 11378) and sustained an allegation that defendant had suffered a prior conviction for possession of ephedrine with the intent to manufacture methamphetamine (Health & Saf. Code, 11383, subd. (c)(1), 11370.2, subd. (c)(2)). The trial court sentenced defendant to a middle term of two years with a consecutive three year enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c)(2), imposed a $1,000 Penal Code section 1202.4, subdivision (b) restitution fine, and stayed a $1000 parole revocation fine pursuant to Penal Code section 1202.45. Defendant was awarded 29 actual days and 14 conduct days for a total of 43 days conduct credit. We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine The judgment is affirmed.