CA Unpub Decisions

Glen Burgstein appeals from an order denying his motion to vacate the renewal of a judgment in favor of assignee CDR Financial Services, LLC. Court reverse the order and remand the matter to the trial court for further proceedings because the record indicates the trial court failed to consider Burgstein's undisputed claim he never was served with a summons and complaint in this action. Where a defendant proves he never was served, a motion to vacate the renewal of a judgment should be granted.

Plaintiff brought this action against his former employer, California Institute of Technology (CalTech), and former supervisors alleging wrongful termination in violation of public policy, breach of contract, age and national origin discrimination and intentional infliction of emotional distress. The trial court granted defendants' motion for summary judgment and Badalian filed a timely appeal from the subsequent judgment. Court affirm.

Defendant appeals his conviction for sale of a controlled substance. (Health and Saf. Code, S 11352, subd. (a).) Defendant contends that the trial court abused its discretion and violated his constitutional rights to due process and a fair trial by excluding testimony regarding police misconduct in another and unrelated case. Court affirm.

Defendant also known as Mikey Quintero, was convicted of two counts of second degree robbery, three counts of attempted second degree robbery, two counts of assault with a firearm, one count of discharging a firearm at an occupied motor vehicle, and numerous enhancements for firearms use and infliction of great bodily injury. He was sentenced to 69 years to life in state prison.
Appellant and respondent agree that, on the count of shooting at an occupied motor vehicle, the trial court should have imposed one rather than two firearms discharge enhancements, pursuant to Penal Code section 12022.53, subdivision (d) (S 12022.53(d).) Court reject appellant's other contention, which is that there was insufficient evidence on two of the attempted robbery counts. Court therefore strike one of the section 12022.53(d) enhancements, and otherwise affirm.

The man who lived in an apartment returned home to find appellant burglarizing it. After a scuffle, appellant ran off with some of the man's property. Appellant was convicted of first degree burglary (count 1) and first degree robbery (count 2), with two prior strike convictions. He was sentenced to 35 years to life in prison, under the "Three Strikes" law. On appeal, he contends: (1) There was insufficient evidence of robbery. (2) The trial court should have instructed on grand theft person as a lesser included offense of robbery. (3) The trial court abused its discretion when it refused to strike one of the prior convictions, under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). (4) Imposition of concurrent sentences on counts 1 and 2 violated Penal Code section 654. (5) A $20 court security fee was improperly imposed, as the crime occurred prior to enactment of the statute authorizing the fee.
Respondent agrees that count 1 must be stayed pursuant to section 654. Court stay that count, strike the security fee, and otherwise affirm.

Appellant appeals from the order of continuing wardship after the juvenile court found he had possessed a concealable firearm. The only issue on appeal is whether the juvenile court erred in failing to declare on the record whether the offense was a misdemeanor or a felony. Court remand for the juvenile court to determine whether the firearm possession offense is a misdemeanor or a felony.

Appellant was convicted of two counts of child molestation. The victim, J.D., is the daughter of Debra, with whom appellant was living at that time. The trial court found true that appellant had previously been convicted of attempted rape, rape, and aggravated kidnapping. He was sentenced to 60 years to life in prison, under the "Three Strikes" law.
At the trial, J.D. described four separate incidents of misconduct by appellant. Court call them (1) the kissing incident, (2) the digital touching incident, (3) the kitchen incident, and (4) the tickling incident. The prosecution relied on the first two incidents for the two charged counts. Appellant contends that his trial counsel rendered constitutionally ineffective assistance because he did not object to J.D.'s testimony about the other two incidents. Appellant also argues that the trial court should have given CALJIC Nos. 2.50.1 and 2.50.2 on uncharged offenses. Court find no error, and affirm.

Defendant appeals a judgment of conviction entered after the trial court denied his motion to suppress evidence, and he pleaded guilty to possession of methamphetamine for sale (Health and Saf. Code, S 11378). Court affirm.

Appellantappeals following his plea of no contest to one count of petty theft with a prior in violation of Penal Code section 666. The trial court sentenced appellant to the low term of 16 months in accordance with his plea bargain. Court appointed counsel to represent appellant on this appeal.
After examination of the record, counsel filed an "Opening Brief" containing an acknowledgment that he had been unable to find any arguable issues.(People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.

Defendant appeals his conviction for lewd acts with a child (Pen. Code, S 288, subd. (a) (S 288(a)). His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Appellant was notified that he could file his own brief. He has not done so.
Appellant was charged with three counts of violating section 288(a), with three enhancements for committing great bodily injury. The evidence at the preliminary hearing showed that the 12 year old victim told appellant she was 16 years old. On three different nights, she voluntarily came outside through her bedroom window, they had consensual sex, and he paid her. She became pregnant, and had an abortion.
After review of the entire record on appeal, court are satisfied that appellant's attorney has fully complied with his responsibilities, and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.

Defendant appeals the denial of his motion, filed in propria persona, to correct the custody credits awarded by the trial court. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Defendant was notified that he could file his own brief, and has not done so.
The judgment is affirmed.

Defendant appeals from the reinstatement of the judgment following remand by this court (People v. Belton (Jan. 30, 2006, B182313) [nonpub. opn.]), after his conviction by jury of possession of cocaine (Health and Saf. Code, S 11350, subd. (a)) and the finding that he had sustained a prior felony conviction within the meaning of the three strikes law (Pen. Code, SS 1170.12, subds. (a) (d), 667, subds. (b) (i)).Our review of the sealed transcript establishes that the trial court made an adequate record of the documents it considered, describing the nature of each complaint and other documents, and that it properly exercised its discretion in determining that none of the complaints or documents were relevant to the officer's veracity.
The judgment as reinstated by the trial court is affirmed.

In this writ proceeding, petitioner father is the father of Arline S., whom the Los Angeles Department of Children and Family Services (DCFS) detained at approximately three years of age. At the 18 month review hearing, the juvenile court terminated reunification services and scheduled a hearing pursuant to Welfare and Institutions Code section 366.26 to implement a long term plan for Arline.
Court hold that substantial evidence does not support the finding that returning Arline to father's custody at the 18 month review hearing would have created a substantial risk of detriment to her safety, protection, or physical or emotional well being. Court therefore grant the petition and issue the writ.

A jury convicted defendant Eric Denton Bough of second degree robbery (Pen. Code, S 211), second degree burglary (S 459), assault with a firearm (S 245, subd. (a)(2)), and misdemeanor destruction of evidence (S 135). The jury also found true allegations that defendant personally used a firearm in the commission of the robbery (S 12022.53, subd. (b)), burglary (S 12022.5, subd. (a)(1)), and assault (S 12022.5, subds. (a), (d)). The trial court sentenced defendant to 13 years in prison for the robbery, consisting of the middle term of three years plus an additional 10 years for the firearm enhancement. Sentences on the remaining felony counts were stayed pursuant to section 654.
Defendant's sole contention on appeal is that the trial court prejudicially erred in failing to instruct the jury sua sponte on brandishing a firearm, a purported lesser included offense of the firearm enhancements. Court affirm.