CA Unpub Decisions

Appellant was employed as an electrician by Jafroodi Interests, Inc. (Jafroodi). Jafroodi hired respondent Horticulture Labor Services, LLC (HLS) to install a motorized shade system in greenhouses owned by Jafroodi. Odom received an electrical shock while he was troubleshooting equipment installed by HLS.
Odom and his wife sued HLS and several other parties for personal injury and loss of consortium, alleging general negligence, premises liability, and products liability. The court granted summary judgment to HLS on the basis of the "firefighter's rule" or the "primary assumption of risk" doctrine, finding HLS had no duty to protect Odom from injury as a matter of law. Court conclude that the primary assumption of risk doctrine does not apply and reverse.

A jury convicted appellant of attempted second degree robbery (Pen. Code, SS 664/211) and found that a personal knife use allegation was not true. (S 12022, subd. (b)(1).) The court found true the allegation that appellant had served a prior prison term and sentenced him to the middle term of two years in state prison, plus a one year prior prison term enhancement. (S 667.5, subd. (b).) Appellant claims that the jury may have relied on a legally incorrect theory because the jury instructions omitted an element of the offense; the prosecutor misstated the law; and the court did not give a clarifying instruction. Court agree and reverse.

Petitioner petitioned this court for writ of review after the Workers' Compensation Appeals Board (Board) denied her claim for workers' compensation (WC) benefits. Court denied her petition. Our Supreme Court transferred the matter back to this court with directions to vacate our order and issue a writ of review.
Court have done so. For the reasons court explain, court remand the matter to the Board to reconsider whether, under Labor Code section 5402, Kendall Jackson Wine Estates, Ltd. (KJ) had inquiry notice of possible industrial injury to appellant's hands while she was pruning vines for it. The Board shall also determine whether Arciga knew she had sustained cumulative trauma (CT) before KJ terminated her from work under section 5412. The Board in its discretion may send the matter back to the WCJ to take additional evidence if it deems it necessary to do so.
It appears that the Board has construed the post termination rules concerning employer knowledge and CT too narrowly. Accordingly, court remand this matter with directions that the Board annul its decision and conduct further proceedings to determine whether Arciga sustained CT and whether KJ was on inquiry notice while she was working that she was suffering from work-related injuries.

The three children in this dependency proceeding are Indian children within the meaning of the Indian Child Welfare Act (ICWA). The Navajo Nation intervened in this matter below, and on appeal challenges the juvenile court's order, made at the disposition stage of the proceeding, placing Olivia S. with the non Indian, non relative, paternal grandparents of her half sibling (the R.'s) instead of with her own Indian maternal grandfather and Hispanic maternal grandmother (the Y.'s). Court agree the juvenile court erroneously found good cause to reject the preferred placement under the ICWA of an extended family member and to place Olivia in the home of a non relative. Accordingly, court reverse the order and remand the matter to the juvenile court for further proceedings consistent with this opinion.
The Navajo Nation also challenges the juvenile court's order granting the R.'s de facto parent status with respect to Olivia and Gabriel Y. (the other child to whom the R.'s are not related by blood). For reasons discussed below, court reverse the order as to Gabriel, but affirm as to Olivia.

Court review this case for the second time. The first jury convicted Andrew Ramirez of five counts of committing a lewd act on a child under 14 years old (Pen. Code, S 288, subd. (a)), and the court imposed a 14 year sentence. On Ramirez' first appeal court reversed the judgment because "the trial court failed to conduct an adequate hearing into whether a juror should have been dismissed" and remanded for a new trial. (People v. Ramirez (Sept. 30, 2004) B169822 [non pub. opn.] (Ramirez I).) On retrial, the jury again convicted Ramirez of the same five counts, and the judge also imposed a 14-year sentence.
Ramirez appeals, raising several challenges to his convictions and sentence. Court agree with Ramirez' contention that the court prejudicially erred in precluding him from introducing exculpatory portions of his testimony from the first trial after permitting the prosecution to introduce other portions as admissions. Court reverse the judgment and remand the case for a new trial. Because of court's conclusion, court do not discuss Ramirez' other contentions.

Plaintiff and other former members of a motion picture production team brought this action for back wages and penalties against Avalon Hollywood Services, a production services company. Plaintiffs contend Avalon is liable for their unpaid wages because it was their co employer under its contract with the film's producer, Paradisio Media Corporation. In its motion for summary judgment Avalon contended as to all causes of action no contract was ever formed between it and Paradisio because Paradisio failed to post a security deposit, a condition precedent to the formation of the contract. As to the second cause of action for continuing wages under Labor Code section 203, Avalon made the additional argument any failure on its part to pay plaintiffs' wages was not willful.
Court conclude a contract was formed between Avalon and Paradisio; therefore, court need not reach plaintiffs' other grounds for reversing the judgment.

Defendant appeals from the judgment entered following conviction by a jury of second degree murder (Pen. Code, SS 187, subd. (a), 189), assault on a child resulting in death (S 273ab), and felony child abuse. (S 273a, subd. (a).) As to the felony child abuse conviction, the jury found true an allegation that appellant had personally inflicted great bodily injury on a child under the age of five years. (S 12022.7, subd. (d).) The trial court sentenced appellant to prison for 25 years to life.
Appellant contends that the trial court erroneously (1) failed to suppress statements made to the police in violation of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), (2) failed to instruct the jury on the lesser included offense of assault by means of force likely to produce great bodily injury (S 245, subd. (a)(1)), and (3) instructed the jury on consciousness of guilt. Court affirm.

Appellant appeals from a February 2006 order declaring him a ward of the court under Welfare and Institutions Code section 602 after the trial court sustained a petition alleging that between July 2000 and July 2001 he committed a forcible lewd act upon Diana G. in violation of Penal Code section 288, subdivision (b)(1). Raphael, who was 12 years old at the time he committed the offense, was ordered home on probation, with a maximum term of physical confinement at eight years.
Raphael contends substantial evidence does not support the finding under Penal Code section 26 that he knew the wrongfulness of his conduct and that there is insufficient evidence to prove the amount of force required for a violation of Penal Code section 288, subdivision (b)(1). Raphael further contends the juvenile court failed to exercise its discretion pursuant to section 731, subdivision (b), when setting his maximum term of confinement. Court hold that substantial evidence supports the findings and that section 731, subdivision (b) does not apply because Raphael was not removed from the custody of his parents, but was instead placed home on probation. Accordingly, court affirm the judgment.

Mother and Hector I., the parents of minor, appeal from orders adjudging their son a dependent child of the juvenile court and removing him from parental custody. Mother also appeals from the orders adjudging her daughter, K.K., a dependent child and removing her from mother's physical custody. Appellants contend that the evidence is insufficient to support the orders. Court disagree and affirm.

Plaintiff appeals from a judgment entered against him in an action he filed against Washington Mutual Bank (Washington Mutual), Wells Fargo Bank (Wells Fargo), Howard CDM, Pierce Enterprise, Carpenters Southwest Administrative Corp. (Carpenters Southwest), and Alma Neely. Appellant was incarcerated throughout the litigation of this action. Appellant contends on appeal that he was denied due process because the trial court refused to issue an order to the penal institution to allow him to participate telephonically in the hearings in his action. Appellant failed, however, to provide an adequate record to establish any error. Accordingly, court affirm the judgment.

Defendant appeals from the judgment entered following his plea of guilty to automobile theft (Veh. Code, S 10851, subd. (a)) and admission of two prior "strike" convictions (attempted murder and robbery). (Pen. Code, SS 664, 187, subd. (a); 211; 667, subds. (c)(2), (e)(2); 1170.12, subds. (a)(2), (c)(2).) The court struck one prior "strike" conviction and sentenced appellant to state prison for four years. The court also imposed a $400 restitution fine and awarded appellant 590 days of presentence credits. Court affirm.

felony complaint filed on December 2, 2004, charged Defendant with possession of a shank while confined in the Pitchess Detention Center in violation of Penal Code section 4574, subdivision (a), a felony. On March 10, 2005, the People filed an amended complaint, adding the special allegation that Sandoval had suffered a prior serious or violent felony conviction (robbery) within the meaning of the "Three Strikes" law (Pen. Code, SS 667, subds. (b) (i), 1170.12, subds. (a) (d)). On April 21, 2005, Sandoval entered a negotiated plea of no contest to violating Penal Code section 4574, subdivision (a), a felony. The court sentenced Sandoval to the middle term of three years in state prison, suspended execution of sentence, and placed Sandoval on three years of formal probation. Among the probation conditions was that Sandoval "not own, use or possess any dangerous or deadly weapons, including any firearms, knives or other concealable weapons," and that he "submit [his] person and property to search or seizure at any time of the day or night by any law enforcement officer or by [sic] probation officer with or without a warrant." The court imposed a restitution fine of $200 and a $200 parole revocation fine that was suspended pursuant to Penal Code section 1202.45. The court struck the prior "strike" allegation on the People's motion.
Court have examined the entire record and are satisfied Defendant's attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (Nov. 27, 2006, S133114) ___ Cal.4th ___; People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.

Defendant, appeals from his conviction for assault by means likely to produce great bodily injury (Pen. Code, S 245, subd. (a)(1)) and the trial court's finding that he was previously convicted of three serious felonies and served four prior prison terms. (SS 667, subd. (b) (i), 667.5, subd. (b), 1170.12.) Defendant argues that the trial court improperly denied his motion to strike his prior felony convictions and that he is entitled to additional presentence credits. Court affirm with modification.

Defendant appeals from judgment entered following her guilty plea to possession of cocaine base for sale (Health and Saf. Code, S 11351.5). Imposition of sentence was suspended and she was placed on formal probation. Defendant contends the trial court's denial of her motion to traverse/quash the warrant and to suppress evidence pursuant to Penal Code section 1538.5 was erroneous. For reasons explained in the opinion, court affirm the judgment.