CA Unpub Decisions

A jury convicted defendant Roger Bryan Gibbings of the unauthorized possession of materials to make a destructive device (Pen. Code, 1231 count 1; unspecified section references that follow are to the Penal Code), and the unlawful possession of a destructive device. ( 1230 count 2.) The jury was unable to reach a verdict on a charge of conspiracy to possess or explode a destructive device with the intent to injure a person or destroy property ( 182, 12303.3), and that count was subsequently dismissed. The trial court sentenced defendant to an aggregate prison term of two years.
On appeal, defendant contends that the trial court erred in (1) admitting defendants statements to investigators into evidence, (2) admitting out of court testimonial evidence in violation of Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), (3) denying his motion for acquittal on count 1, and (4) refusing to disclose juror identifying information. Court conclude no reversible error occurred, and therefore affirm the judgment.

State inmate John Clutchette is serving a life sentence with the possibility of parole following his 1980 conviction for first degree murder. The People appeal from the order of the trial court granting his petition for writ of habeas corpus.
The trial court concluded that, in October of 2003, the Board of Prison Terms (the Board) erred in disapproving, for reasons other than those required by section 3041, the decision of a parole panel, which set a parole date for Clutchette. Court conclude the trial court properly granted the petition and affirm.

In March 2006 an Elk Grove police officer saw a car with two occupants weave from one side of the road to the other and pass through a stop sign without slowing or stopping. A records check revealed that the car was stolen. The car was stopped and the minor was advised of his Miranda rights. He admitted that he obtained the car from a friend and drove it to the coparticipants house. The coparticipant admitted driving the car at the time of the traffic stop.
Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to the minor. The judgment is affirmed.

Defendant pleaded no contest to second degree burglary (Pen. Code, 459) and admitted a prior strike. In accordance with the stipulated sentence, the trial court sentenced defendant to the lower term of 16 months, which was doubled by the strike to 32 months. The court also imposed a $200 restitution fine (Pen. Code, 1202.4), stayed a $200 parole revocation fine (Pen. Code, 1202.45), and imposed a $20 court security fee (Pen. Code, 1465.8). Defendant was awarded 127 actual days and 62 conduct days for a total of 189 days of custody credit.
Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

Following a contested jurisdictional hearing, the Butte County Juvenile Court found that minor Nicholas D. came within the provisions of Welfare and Institutions Code section 602 in that he drove under the influence of an alcoholic beverage and a drug. (Veh. Code, 23152, subd. (a).) At the prosecutors request, a count of possession of marijuana while driving (Veh. Code, 23222, subd. (b)) was dismissed. The minor was declared a ward, ordered to serve 48 hours in custody with credit for 24 hours, and directed to complete level one of DUI school by May 29, 2007.
On appeal, the minor contends lay and expert evidence of his driving under the influence of marijuana was erroneously admitted. Court affirm the judgment.

Eleven people who own lots in a residential subdivision outside Portola sought to prevent defendants Harold and Norma Kunsman from completing a 5,000 square-foot garage on their lot in the subdivision. The trial court found the proposed structure would violate setback and size restrictions found in a declaration of restrictions recorded when the subdivision was created in 1958, but the court refused to enforce those restrictions because it found plaintiffs had waived their right to enforce the restrictions and were guilty of laches. Both findings rested largely (although not entirely) on the failure of plaintiffs and their predecessors to establish and operate an architectural control committee provided for in the declaration of restrictions. The trial court felt that by failing to establish and operate such a committee, the right to enforce the restrictions had been lost absent prospective notice of an intent to enforce the restrictions.
Court conclude the trial courts findings of waiver and laches are not supported by substantial evidence. As court explain, the architectural control committee that was provided for in the declaration of restrictions had no role in implementing or enforcing the setback and size restrictions the Kunsmans building violated. Thus, the failure to establish that committee by itself could not result in a loss of the right to enforce those restrictions. We also conclude there is no other basis in the record to support the trial courts findings of waiver and laches. Accordingly, Court reverse the judgment.

Henry Galvan (Henry) and Rosa Galvan (Rosa) were married in 1996. In 2001, the parties entered into a marital settlement agreement that was incorporated into a final judgment of marital dissolution on August 10 of that year. In December 2004, Henry filed a postjudgment motion (Fam. Code, 2556) requesting division of the "family residence" as an omitted asset that was not adjudicated in the judgment of dissolution. On November 7, 2005, the trial court issued an order finding the residence to be an omitted asset and setting a valuation date of August 10, 2001, the date of the dissolution judgment. On February 24, 2006, the court entered a final postjudgment order[2]determining that as of August 10, 2001, the value of the residence was $110,000 and that the equity in the residence was $26,391. The court ordered Rosa to pay Henry $13,140.50 to equalize division of the property.
Henry appeals from the postjudgment order granting his motion. He claims that the trial court erred in issuing its November 7, 2005 order adopting August 10, 2001 as the valuation date. Court affirm the November 7, 2005 order.

Amanda B. appeals from a judgment establishing a conservatorship for her under the Lanterman-Petris-Short Act (LPS Act). (Welf. & Inst. Code, 5000 et seq.) Amanda challenges the judgment on two grounds. Amanda first contends that the trial court's finding that she lacks the capacity to make medical decisions unrelated to her grave disability is not supported by substantial evidence. Second, Amanda asserts that the trial court erred by assigning her level of placement as a locked treatment facility or a board and care facility. According to Amanda, the trial court was required to determine the "least restrictive placement" appropriate for her, and that by leaving the choice of the level of placement to the discretion of the conservator, the trial court failed to carry out its duty, as required under the LPS Act.
Court conclude that substantial evidence supports the trial court's finding that Amanda is unable to make medical decisions unrelated to her grave disability. However, the trial court erred in failing to specifically designate the appropriate level of placement for Amanda. Court therefore remand the case to the trial court for a determination as to the least restrictive alternative placement appropriate for Amanda.

Jason T. appeals a judgment denying his petition to terminate Christian R.'s parental rights to Marco R., Christian's biological son, on the basis of abandonment under Family Code section 7822. Jason contends the evidence was insufficient to support the trial court's finding that Christian successfully rebutted the presumption of abandonment. Court affirm the judgment.

Appellant supplied three teenage girls with drugs and arranged for them to engage in acts of prostitution. He was tried before the court and sentenced to prison for an aggregate term of 19 years 8 months based on his conviction of one count of child endangerment (Pen. Code, 273a, subd. (a)), two counts of furnishing methamphetamine to a minor (Health & Saf. Code, 11353), two counts of procuring a minor for prostitution (Pen. Code, 266i, subd. (a)(5)), one count of procuring a person for prostitution (Pen. Code, 266i, subd. (a)(1)), three counts of procuring a child under 16 to perform a lewd and lascivious act (Pen. Code, 266j), and one count of possessing methamphetamine (Health & Saf. Code, 11377, subd. (a)).
Appellant argues: (1) the evidence was insufficient to support the child endangerment conviction; (2) the court relied on an improper aggravating factor when it imposed the upper term on the furnishing count that was selected as the principal term; (3) the upper-term sentence violated Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely); and (4) a $20 court security fee must be stricken because the crimes in this case were committed before the operative date of the statute authorizing the fee. Court agree the case must be remanded for resentencing under Cunningham and Blakely, but otherwise affirm.

Defendant pleaded guilty to first degree burglary (Pen. Code, 459, 460, subd. (a)) in exchange for dismissal with a Harvey (People v. Harvey (1979) 25 Cal.3d 754) waiver of one count of second degree burglary (Pen. Code, 459, 460, subd. (b)), four counts of theft of a firearm (Pen. Code, 487, subd. (d)(2)), and one count of theft of more than $400 of property (Pen. Code, 487 (a)). Defendant was sentenced to four years in prison, and ordered to pay $12,180.25 in restitution to the victim (Pen. Code, 1202.4, subd. (f)). Defendant argues, and court agree, that the restitution order was not supported by substantial evidence and that a new restitution hearing is required.

As part of an agreement to plead no contest to drug possession, defendant was placed on three years probation conditioned, among other things, on completion of a residential drug treatment program. Three years later, following her arrest for robbery, the trial court revoked her probation after a contested hearing. The court sentenced her to serve the full three year upper term for her original offense. On appeal, defendant contends that the trial court erred in imposing the upper term sentence for the underlying offense. Court affirm the judgment.

The California Reports and the California Appellate Reports are filled with innumerable instances where an appellate court has had to wrestle with the text of a statute to ascertain its meaning and application. Far less common are cases where the court deals with a statute whose text is utterly without ambiguity, whose application is completely certain, and whose impact is dispositive. This is one of those cases.

Appellants Terminal Maintenance Company and Tom Verello contend the trial court erred by denying their petition to compel arbitration of claims of employment discrimination brought by respondent Democritus Punla. Court affirm the order denying the petition to compel arbitration.