CA Unpub Decisions

A jury convicted defendant of assault with a deadly weapon and found true allegations that he personally inflicted great bodily injury to the victim. The court sentenced defendant to a total prison term of seven years, consisting of the upper term of four years for the assault conviction and a three-year consecutive term for the great bodily injury enhancement. Defendant contends: (1) the court violated his due process rights under the federal and state constitutions by instructing the jury with CALJIC No. 17.20; (2) there is insufficient evidence he personally inflicted great bodily harm; (3) the court applied an incorrect standard in ruling on his new trial motion; (4) the jury's verdict is ambiguous for purposes of determining whether his assault conviction will qualify as a strike under the "Three Strikes" law; and (5) imposition of the upper term on his assault conviction violated his federal constitutional rights to a jury trial and proof beyond a reasonable doubt. Court affirmed.

Plaintiff appeals an order awarding $10,000 in sanctions to defendants for plaintiff's discovery abuses in his breach of contract action against Defendants. On appeal, plaintiff contends the trial court abused its discretion by awarding that amount of sanctions because: (1) his failure to comply with discovery rules was not willful; and (2) the court, in awarding that amount, improperly intended to punish him. The order is affirmed.

Appellant appeals the trial court's decision sustaining the demurrer filed by the State Board of Equalization to Plaintiff's first amended complaint, which sought a refund of $658,216.86 for the use tax paid by Plaintiff from the fourth quarter of 1999 through the third quarter of 2002. Court concluded that Plaintiff's position is without merit, and accordingly court affirmed the trial court.

Defendant, minor, was charged with sale of marijuana (Count 1), and possession of marijuana for sale (Count 2). The court found the allegations true and declared minor a ward of the court. At the disposition hearing, the court committed minor to the Juvenile Ranch Facility Drug Dormitory for no more than 120 days followed by probation and home supervision. The court also imposed a fine of $60.00 under section 730.5 and restitution in the amount of $50.00 under section 730.6.
On appeal, Rodney contends: (1) the court's bias denied him his due process right to a fundamentally fair trial; (2) count 2 must be stricken because possession for sale is a lesser included offense of sale of marijuana; and (3) the section 730.5 fine is improper because the court made no finding of Rodney's ability to pay the fine. Court reversed the judgment.

Defendant pled guilty to possession of methamphetamine for sale after a trial court denied his motion to suppress evidence under Penal Code section 1538.5. Defendant’s sole contention on appeal was that the trial court erred in denying his motion to suppress. Court affirmed the judgment.

In this petition for extraordinary writ, mother challenges the juvenile court’s orders declaring minor a dependent child of the court based on severe physical abuse, and denying reunification services for the same reason. In addition to challenging the court’s jurisdictional finding, mother also claims that she did not receive proper notice that she would be denied services based on the allegation of physical abuse.
Court concluded that there is no requirement that mother be given notice of the exact reason for denying reunification services. Court also concluded that substantial evidence supported the court’s findings. Court denied mother’s petition.

In a second trial held after the first ended in a mistrial, a jury convicted defendant of willfully failing to appear in court, while charged with a felony and released from custody on bail and driving in a willful or wanton disregard for safety of persons or property while fleeing from a pursuing police officer. Before the second trial, Broadus pled guilty to a misdemeanor charge of driving a motor vehicle while his driver’s license was suspended or revoked. During the second trial, Broadus admitted he suffered a prior conviction for a serious or violent felony. At sentencing, the trial court denied Broadus’s motion to strike his prior conviction and sentenced him to a total prison term of seven years, four months. On appeal, defendant contends his conviction for felony evading must be reversed because Vehicle Code section 2800.2 contains an unconstitutional mandatory presumption and the trial court’s failure to give a unanimity instruction violated federal law. Defendant also contends the trial court abused its discretion when it allowed the prosecutor to impeach him with his prior conviction for voluntary manslaughter and the trial court failed to conduct an adequate inquiry into juror misconduct. Court disagreed with defendant’s contentions and affirmed the judgment.

After jury trial, appellant was convicted of discharging a firearm at an inhabited dwelling and conspiracy to commit this offense; gang and firearm use enhancements were found true. Appellant was sentenced to an aggregate term of 25 years to life imprisonment. Appellant raises the following claims: (1) Wheeler error; (2) improper refusal to suppress evidence of a photographic lineup; (3) insufficiency of the evidence supporting the gang enhancement; and (4) unauthorized sentence imposed on count 1. Respondent also argues the sentence imposed on count 1 is unauthorized, but on a different basis. It is respondent’s position that the firearm enhancement must be stricken. Although none of appellant’s arguments are persuasive, court agreed with respondent that the firearm enhancement was unauthorized. Court modified the judgment and affirmed.

Plaintiff appeals a summary judgment granted in favor of defendant on her employment discrimination lawsuit which alleged violations of the California Fair Employment and Housing Act and wrongful termination in violation of public policy. Court concluded the trial court properly granted summary judgment because Dowling’s action is precluded by the adverse findings made in a concurrent administrative proceeding she pursued to challenge her termination. Court affirmed.

Appellant was found guilty after a jury trial of corporal injury to a cohabitant and assault with a deadly weapon by means likely to cause great bodily injury. The trial court denied motions by appellant to set aside his convictions and the great bodily injury findings. At sentencing, the court placed appellant on five years of felony probation. One condition of probation was that appellant serve 365 days in jail.
Appellant contends there was insufficient evidence that he inflicted great bodily injury on the victim.
Judgment affirmed.

Plaintiff sued a number of defendants after he slipped and fell in the parking lot of a Bakersfield Jack in the Box restaurant. Appellant appeals from trial court orders granting summary judgment for the chief executive officer of Jack in The Box, Inc., and denying his request for a protective order. Court affirmed.

Mother appeals from dispositional orders that denied her reunification services because (1) she failed to reunify with her three older children and subsequently failed to make reasonable efforts to address the problems that led to their removal, and (2) she had a history of drug abuse and resistance to prior treatment. Court affirmed the court’s dispositional orders.

The minor, was removed from the custody of her guardians, after a Welfare and Institutions Code section 300 petition was filed alleging that defendant physically abused minor, the daughter of Rodney and stepdaughter of defendant.
The Kern County Department of Human Services filed a petition for modification seeking to terminate the guardianship established in the probate court, and the attorney for Aubrey filed a motion to terminate the guardianship. The dependency court denied the petitions. The department then filed a new petition seeking reconsideration, under the authority of Code of Civil Procedure section 1008, of the prior order claiming it had obtained further evidence of abuse by defendant and Rodney against their natural children and stepchildren. The dependency court granted the department’s petition and terminated the guardianship.
Rodney appeals, arguing the dependency court did not have evidence sufficient to justify a new hearing and did not have jurisdiction to terminate the guardianship under Code of Civil Procedure section 1008. In a separate appeal, Denise raises the same challenge. Court affirmed.

Father appeals from jurisdictional findings and the consequent dispositional order that removed his minor son, from his legal and physical custody. Father contends the juvenile court erred in finding jurisdiction under Welfare and Institutions Code section 300, subdivisions (b) and (j), because there was no substantial evidence to support findings under these subdivisions. Father further contends the order temporarily removing physical custody of minor son from him was not supported by evidence that removal was necessary to avoid a substantial danger to minor son’s physical health or emotional well-being, and there were no reasonable means to protect minor son’s physical health without removing him from his custody. Court disagreed and affirmed the dispositional order.