CA Unpub Decisions

Defendant appeals from the judgment entered following his convictions by jury on count 1 first degree murder (Pen. Code, 187, 189) with a principal armed with a firearm (Pen. Code, 12022, subd. (a)(1)) and special circumstance findings that appellant committed the offense for financial gain (Pen. Code, 190.2, subd. (a)(1)) and lying in wait (Pen. Code, 190.2, subd. (a)(15)), count 2 solicitation of murder (Pen. Code, 653f, subd. (b)), and count 3 conspiracy (Pen. Code, 182, subd. (a)(1)). The court resentenced appellant to prison for a total unstayed term of life without the possibility of parole, plus two years.
Court accept respondents concession that imposition of a $1,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), violated the state Constitutions double jeopardy provision. Finally, in light of our resolution of appellants other contentions, Court reject appellants contention that the matter should be remanded to a different trial court judge.

Defendant, appeals from his conviction for second degree robbery and the jurors finding that he personally used a deadly weapon. (Pen. Code, 211.) Defendant admitted that he had previously been convicted of a serious felony and served two prison terms. ( 667, subds. (a)(1), (b) (i), 667.5, subd. (b), 1170.12.) Defendant argues the trial court improperly: refused to instruct on defense of others; inadequately instructed on robbery; and failed to instruct on imperfect self defense. Defendant also argues that the jurors committed misconduct.

On July 1, 2002, respondent Santa Monica Rent Control Board (Board) assessed an annual registration fee of $792 on an apartment building owned by appellants Walter L. Skowron and Helen M. Skowron (the Skowrons). The Skowrons withdrew the apartments from the rental market effective August 21, 2002. The Skowrons offered to pay prorated fees of $44, but the Board took the position that fees were due for the entire fiscal year 2002/2003. In cross motions for summary judgment, the trial court agreed with the Board, and rejected the Skowrons challenge to the constitutionality of the registration fee. The Skowrons appeal; Court affirm.

Defendant appeals following her guilty plea to one count of petty theft with a prior theft related conviction. As part of that plea, she admitted the prior conviction (carjacking) also constituted a strike under the Three Strikes Law. She claims as the sole error that the trial court failed to exercise its discretion in deciding whether to dismiss her strike under Penal Code section 1385. Court believe defendant has misread what the trial court said, conclude the court in fact exercised its discretion and expressly chose not to strike her prior conviction under the Three Strikes Law, and affirm.

This appeal and cross-appeal are from a partially successful special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16. Plaintiff Gary Pearl appeals from the trial courts order granting a special motion to strike his cause of action alleging malicious prosecution by defendants Donna Deitch and Deitchs attorneys (Law Offices of Rosario Perry, and attorneys Rosario Perry and Lisa Howard). Pearl also challenges the orders awarding attorney fees and costs. Deitch and her attorneys cross-appeal and challenge that aspect of the courts order which denied their special motion to strike Pearls causes of action for breach of contract and restitution after rescission.
Court affirm the orders under review.

Christopher Franklin and Charles Franklin appeal from judgments entered following a court trial. The court convicted Christopher Franklin on count 1 attempted willful, deliberate, and premeditated murder (Pen. Code, 187, 189) with findings that a principal was armed with a firearm ( 12022, subd. (a)(1)), a principal personally used a firearm ( 12022.53, subds. (b) & (e)(1)), and the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)), count 2 assault with a semiautomatic firearm ( 245, subd. (b)) with a finding that the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)), and count 3, assault upon a peace officer with a semiautomatic firearm ( 245, subd. (d)(2)) with findings that appellant personally used a firearm ( 12022.5, subd. (a), 12022.53, subd. (b)). The court sentenced Christopher Franklin to prison for 19 years.
The court convicted Charles Franklin on count 1 attempted willful, deliberate, and premeditated murder ( 187, 189) with findings that a principal was armed with a firearm ( 12022, subd. (a)(1)), a principal personally used a firearm ( 12022.53, subds. (b) & (e)(1)), and the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)), count 2 - assault with a semiautomatic firearm ( 245, subd. (b)) with a finding that the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)), and count 4 - evading a police officer (Veh. Code, 2800.2, subd. (a)). The court sentenced Charles Franklin to prison for 16 years 8 months.
Court accept respondents concession that, as to each appellant, multiple punishment on counts 1 and 2 violated Penal Code section 654. Moreover, there is no need to decide Christopher Franklins claims that his abstract of judgment must be amended in various respects. Since his multiple punishment claim is valid, and since, as respondent concedes, the trial court erroneously imposed a 10 year Penal Code section 186.22, subdivision (b), gang enhancement as to count 3 even though the trial court found not true that enhancement, Court, as to him, remand the matter for resentencing.

In this appeal, plaintiff Jaime Preciado (plaintiff) challenges the trial courts decision to grant a motion by defendant Sysco Food Services of Los Angeles, Inc. to compel arbitration. Because orders granting motions to compel arbitration are not appealable, Court have no jurisdiction over this appeal other than to dismiss it as premature.

Appellant Derick Whitfield Payne, convicted of assault with a firearm, corporal injury to a spouse and false imprisonment, contends that the trial court erred in excluding certain impeachment evidence and in imposing punishment for both assault and false imprisonment. Court affirm.

Defendants, Trav Corporation doing business as Westwood College (the college) and Marshall Vallelunga, appeal from an order denying their petition to compel arbitration of a defamation action filed by plaintiff, James Holland. Plaintiff was employed as an adjunct professor at Westwood College from January 2003 until May 2005. Court affirm.

Martha N., mother, appeals the summary denial of her Welfare and Institutions Code section 388 petition. Court affirm.

Appellant, appeals the order terminating parental rights to his daughters, Cassandra Q. (born June 2003) and Dana Q. (born February 2005). Appellant contends the juvenile court erred in terminating parental rights because the Department of Children and Family Services (DCFS) improperly denied him visitation rights, thereby depriving him of the ability to establish a statutory exception (Welf. & Inst. Code, 366.26, subd. (c)(1)(a)) to termination of parental rights.
However, no evidence supports the assertion that visitation was wrongfully thwarted by DCFS, which was given discretion to deny monitored visits to appellant, who had caused severe physical and emotional trauma to the children. Court thus affirm the order terminating parental rights.

A mother appeals from an order terminating her parental rights, contending she presented compelling evidence to show that she maintained regular visitation and contact with her child, and that the child would benefit from the continuation of their relationship. Court disagree and affirm the order.

In case No. C049864, appellant John P., father of the minor, appeals from an order continuing the minor as a dependent of the court. (Welf. & Inst. Code, 387, 395.) In case No. C051569, he appeals from the orders of the juvenile court terminating his parental rights. ( 366.26, 395.) On August 22, 2006, this court ordered the appeals consolidated for decision.
Court conclude the juvenile court erred prior to the filing of a section 387 petition when it dismissed appellants counsel without appointing new counsel. Accordingly, Court vacate the orders entered at the section 387 hearing which continued the minor as a dependent of the court (case No. C049864), as well as the subsequent orders terminating appellants parental rights (case No. C051569), and direct the juvenile court to appoint counsel for appellant and to hold a new section 387 hearing.

In granting the Department of Health Servicess demurrer to state employee Anna Ramirezs whistleblower claim, the trial court lamented: [T]he statute is screwy . . . theres not much I can do about it except apply it, apply the law. I think the legislature probably needs to address this and clear it up. Court now face the same predicament.
The statute, the California Whistleblower Protection Act (Whistleblower Act; Gov. Code, 8547 et seq.) allows a whistleblower who is penalized for making a protected disclosure of wrongdoing to bring a civil action for damages (Gov. Code, 8547.3) after filing a complaint with the State Personnel Board (SPB) and the [SPB] has issued, or failed to issue, findings . . . (Gov. Code, 8547.8, subd. (c)). The question posed by this appeal is whether the Whistleblower Act, by requiring an injured whistleblower to file a complaint, triggers well-established principles of collateral estoppel precluding a civil action unless the whistleblower obtains a favorable ruling from the SPB or successfully overturns adverse findings through administrative mandamus. A preliminary question posed is whether an investigation by the executive officer of the SPB followed by written findings and a decision qualifies as a quasi-judicial hearing for purposes of section 1094.5 of the Code of Civil Procedure.
Court conclude (1) that because plaintiff was provided the opportunity to submit evidence, name witnesses, and argue her claim, she was provided with the type of quasi-judicial hearing sufficient to satisfy Code of Civil Procedure section 1094.5 even though the SPB was not required to provide, and she did not request, an evidentiary hearing; and (2) that because the Legislature did not clearly provide that a whistleblower could pursue alternative remedies and did require plaintiff to initiate administrative proceedings, she is collaterally estopped from relitigating the findings that were actually litigated in the quasi-adjudicatory proceedings.
Court acknowledge that this result places a substantial burden on the whistleblower who, subject to an expedited investigation and without the benefit of an evidentiary hearing, must convince a court to overturn adverse findings in mandamus proceedings, despite the considerable deference the court must accord those findings. What the Legislature appeared to be giving a civil remedy for retaliatory conduct is, in reality, an elusive possibility unless the SPB sustains the complaint. But, as the trial court recognized, in the absence of a clear statute providing alternative remedies, we too must apply this screwy statute.