CA Unpub Decisions

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.

A jury convicted defendant Terry Quinn Houston of four counts of second degree commercial burglary (Pen. Code, 459) and four counts of forgery (Pen. Code, 470, subd. (d)). Defendant admitted one strike and two prior prison terms. The trial court sentenced defendant to seven years in prison, imposed a $1,400 restitution fine (Pen. Code, 1202.4, subd. (b)), stayed a $1,400 parole revocation fine (Pen. Code, 1202.45), imposed a theft fine of $31.50 (Pen. Code, 1202.5), ordered defendant to pay $413 in restitution to the victims (Pen. Code, 1202.4, subd. (f)), and imposed a $160 court security fee (Pen. Code, 1465.8). Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. The trial court is directed to prepare an amended abstract of judgment to reflect that defendant was convicted on counts six through eight on January 10, 2006. In all other respects, the judgment is affirmed.

The parents of dependent minors H. R. and Audrey R. appeal the juvenile court's judgment terminating their parental rights under Welfare and Institutions Code section 366.26. Julia R. is H. and Audrey's mother, Gregory R. is H.'s father, and Salvador R. is Audrey's father. Julia and Salvador contend the court erred by not ensuring compliance with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) before terminating parental rights. Gregory contends: (1) the court erred by terminating his parental rights without a showing of parental unfitness; (2) he received insufficient notice of the court's intention to conduct a hearing on his parental fitness; and (3) the evidence is insufficient to support the court's finding H. is adoptable. Court affirm the judgment as to all three parents.

Defendant appeals from judgment entered following jury verdicts for assault with a deadly weapon, a knife, (Pen. Code, 245, subd. (a)(1)) nand stalking ( 646.9, subd. (a)). The jury was unable to reach a verdict on the attempted murder charge ( 664 & 187, subd. (a)), resulting in a mistrial on that count. The jury found true two strike priors ( 667, subds. (c) and (e)(2)(A) & 1170.12, subd. (c)(2)(A)) and an enhancement allegation that defendant used a knife in the commission of an assault ( 12022, subd. (b)). The trial court sentenced defendant to 56 years to life in prison.
Defendant contends the trial court violated his due process rights by allowing the prosecution to add a stalking charge after dismissing it a day earlier based on vindictive prosecution. Defendant also asserts there was insufficient evidence to support the stalking charge, and the court erred in admitting evidence of defendants prior bad acts. Defendant further argues that the trial court erred in imposing consecutive sentences for stalking and assault with a deadly weapon, rather than staying the assault sentence under section 654.
Court conclude there was no prejudicial error in the court reinstating the stalking charge since it should not have been dismissed initially. Court further reject defendants other contentions and affirm the judgment.

A jury convicted defendant of possession for sale of cocaine base (count 1; Health & Saf. Code, 11351.5) and of possession of drug paraphernalia (count 2; Health & Saf. Code, 11364). The jury also found true allegations that defendant had two prior convictions for drug possession and one prior conviction for burglary. She was sentenced to four years in prison on count 1, plus one year for each of the three prior convictions. She was sentenced to 180 days in county jail for count 2, to be served concurrent to the prison term.
On appeal, defendant contends: (1) the admission of evidence of defendants prior crimes was prejudicial error; (2) the use of a prior misdemeanor conviction for spousal battery to impeach a defense witness was prejudicial error; (3) the prosecutor was permitted to impeach another witness with questions about a prior drug crime and reference to an inadmissible rap sheet; (4) the court erred in allowing the prosecutor to introduce improper rebuttal evidence; (5) the court improperly refused to allow defendant to make a motion to suppress evidence during trial; and (6) the prosecutor committed prejudicial misconduct during argument. Court reject these arguments and affirm the judgment.

This appeal concerns three siblings and the effect of a no contest clause contained in their parents living trust. ( 21320.) The trial court ruled plaintiffs proposed petition would constitute a contest of the trust. Court affirm.

Mother appeals from orders appointing a guardian ad litem (guardian) for her and terminating her parental rights. (In re Sara D. (2001) 87 Cal.App.4th 661; In re C.G. (2005) 129 Cal.App.4th 27; 366.26.) Court reject mothers challenge because any error was harmless beyond a reasonable doubt.

Plaintiff appeals from the judgments entered after the trial court granted the motions for summary judgment of defendants (1) Yosemite Title Company, Inc. (Yosemite Title), (2) Robert L. Ozbirn and Sharon G. Ozbirn, individually and as trustees of the Ozbirn 1998 Revocable Trust (the Ozbirns), and (3) Jay Thomas Wynn and Jacqueline M. Wynn (the Wynns). Mosley contends triable issues of material fact existed and the defendants were not entitled to judgment as a matter of law. Court disagree and affirm the judgments.

On October 12, 2004, appellant, Trinidad Gomez, was charged in a felony complaint with possession of methamphetamine for sale (Health & Saf. Code, 11378, count one), possession of a controlled substance while in possession of a firearm (Health & Saf. Code, 11370.1, subd. (a), count two), opening a place for the purpose of selling methamphetamine and marijuana (Health & Saf. Code, 11366, count three), possession of marijuana for sale (Health & Saf. Code, 11359, count four), possession of an assault weapon (Pen. Code, 12280, subd. (b), count five), being a felon in possession of a firearm (Pen. Code, 12021, subd. (a), count six), and possession of a short barreled shotgun or rifle (Pen. Code, 12020, subd. (a), count seven).Count one also included special allegations that appellant was personally armed with a firearm in the commission of that offense ( 12022, subd. (c)) and that he had a prior narcotics conviction (Health & Saf. Code, 11370.2, subd. (c)). The complaint alleged that appellant had two prior serious felony convictions within the meaning of the three strikes law ( 1170.12) and a prior prison term enhancement ( 667.5, subd. (b)).
Appellant filed a suppression motion ( 1538.5) which was heard and denied by Judge Ferguson during the preliminary hearing on October 17, 2005. The court held appellant to answer on the allegations in the complaint. An information was filed on October 28, 2005. An amended information was filed on November 29, 2005.[2] On December 6, 2005, the parties entered into a plea agreement before Judge Ferguson. Appellant pled no contest to counts one, two, four, and five. Appellant admitted the special allegations in count one, the two prior serious felony convictions within the meaning of the three strikes law, and the prior prison term enhancement. The remaining allegations were dismissed. The court indicated appellants prison sentence would be nine years.
On appeal, appellant contends the trial court erred in denying his suppression motion. Respondent contends this issue is waived because appellant failed to renew his suppression motion in superior court pursuant to People v. Lilienthal (1978) 22 Cal.3d 891, 895-896 (Lilienthal), and therefore failed to preserve the issue for appellate review. Court concur with respondent and dismiss the appeal.

On January 20, 2006, an information was filed in the Superior Court of Kings County charging appellant Rafael Antonio Luna, and codefendants Victor Manuel Castaneda, Gonzalo Murguia, and Jose Naranjo, with count I, first degree murder of Marcos Villegas (Pen. Code, 187, subd. (a)), and count II, conspiracy to commit murder ( 182, subd. (a)(1), 187, subd. (a)). As to both counts, a special circumstance was alleged that the homicide was carried out to further the activities of a criminal street gang ( 190.2, subd. (a)(22)). As to both counts, it was further alleged the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(4)), and that appellant and the codefendants personally and intentionally discharged and used a firearm causing great bodily injury or death ( 12022.53, subds. (b), (c) & (e), 12022.5, subd. (a)(1)).
Appellant pleaded not guilty and denied the special allegations. Appellants case was subsequently severed from his codefendants and he was tried separately.
Appellant contends, and respondent concedes, that the court improperly imposed LWOP sentences for both counts I and II, the LWOP sentence for count II must be stricken, and this court should amend the abstract of judgment to reflect a sentence of 25 years to life for count II.
Appellant also contends, and respondent also concedes, the court improperly imposed a $10,000 parole revocation fine pursuant to section 1202.45, and that fine must be stricken because he received an LWOP term.

Defendant contends his conviction for robbery must be reversed because the trial court infringed his Sixth Amendment right to counsel when it denied his request for a two week continuance of sentencing so that he could replace his retained counsel with different retained counsel to represent him in connection with an effort to withdraw his guilty plea. Court affirm.

A jury convicted appellant Terrance Griffin of second degree murder (Pen. Code, 187, subd. (a))and found true an enhancement allegation that he committed that offense for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1). The court imposed a term of 15 years to life on the substantive offense, with 10 years added to the determinate portion of that term for the gang enhancement.
On appeal, appellant contends, and the People concede, the court erred in imposing the 10-year gang enhancement. Court agree, and strike the enhancement.

On October 2, 2006, appellant, Gilberto Gonzalez, pled no contest to an allegation that while he was a prison inmate, he assaulted another inmate with a deadly weapon by means of force likely to cause great bodily injury (Pen. Code, 4501). Appellant admitted an allegation that he had a prior serious felony conviction within the meaning of the three strikes law. Under the terms of the plea agreement, appellant would receive the mitigated prison term of two years which would be doubled pursuant to the three strikes law and made consecutive to the term he was serving in prison. Appellant waived his right to a formal probation report and was sentenced to the two years, which was doubled to four years pursuant to the three strikes law. The court made appellants sentence fully consecutive to the term he was serving in prison. Appellant has not obtained a certificate of probable cause.
After independent review of the record, Court have concluded no reasonably arguable legal or factual argument exists. The judgment is affirmed.

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 denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1]as to her daughter S. Court conclude her petition fails to comport with the procedural requirements of California Rules of Court, rule 8.452 (Rule 8.452). Accordingly, Court dismiss the petition as facially inadequate.