CA Unpub Decisions

While Deputy Sheriff Jeffrey Hornacek was undergoing training to become a patrol deputy, the San Diego County Sheriff's Department (Department) terminated his employment on the ground that he was incompetent and failed to conform to work standards. Hornacek appealed the termination to the San Diego County Civil Service Commission (Commission), which concluded that Hornacek had been inefficient, but not incompetent, and that he should receive a two-day suspension, not termination, along with back pay, benefits and interest. William D. Gore, as Sheriff of San Diego County (the Sheriff), filed a petition for writ of administrative mandamus challenging the Commission's decision. (Code Civ. Proc., § 1094.5.) The trial court denied the petition, concluding that the Commission's decision was supported by substantial evidence and did not constitute an abuse of discretion.

E.S. appeals a family court order awarding attorney fees to his former wife, Y.S., in a dissolution of marriage case. E.S. contends the court should not have granted the award because under Family Code section 4320, subdivision (i), he was a victim of domestic abuse. With no citation to the record, he claims he is financially unable to pay the award because he has been unable to work in the last eight months due to a work-related injury requiring surgery. He adds that his business failed because he suffered stress from being the sole custodian of three minor children and having to "keep up with mounting spousal support fees, attorney fees for himself and [Y.S.], and financial support for his children as well as a stable environment to raise them." He also argues Y.S. has failed to become self-supporting following their divorce. We affirm.

McDowell Hetherington, Thomas F.A. Hetherington, Andrew R. Kasner and Jodi Swick for Defendant and Respondent PHL Variable Insurance Company.
This is an appeal from a judgment of dismissal after the trial court sustained defendant insurance companies' demurrers to a third amended complaint (complaint) without leave to amend. The defendant insurance companies sold their insurance products using an insurance agent who engaged in a fraudulent scheme—through two companies that were unrelated to defendants—and the scheme caused plaintiffs to collectively lose millions of dollars. Plaintiffs contend defendants are vicariously liable for the insurance agent's fraud based on various theories, all of which we reject. We affirm the judgment on the grounds that the insurance agent was acting outside the scope of his agency, the defendant insurance companies owed no duty to plaintiffs under the circumstances presented, plaintiffs have failed to establish any legal basis to hold the

On January 31, 2015, defendant Connor Guzman and his friend, Jordan Harris, went to the victim’s home. Also present was the victim’s friend, Malik Albanez. Over the course of the evening, defendant and the victim ingested a significant amount of alcohol. Defendant also ingested a large quantity of cocaine. In the early morning hours, the victim, who according to Albanez was “heavily intoxicated, ‘incoherent,’ and ‘pretty much unconscious,’ ” went to bed alone in her bedroom after providing defendant and Harris with bedding so they could sleep in the living room. The victim fell asleep almost immediately and slept soundly. Albanez repeatedly checked on the victim due to her state of intoxication. At some point, defendant entered the victim’s bedroom and got on the bed next to the victim. Albanez checked on the victim again while defendant was in the room and, although Albanez was unable to wake the victim by shaking her and calling her name, he determined she w

A jury found defendant Benton Arkansas, Jr., guilty of second degree burglary (Pen. Code, § 459), and the trial court subsequently found that defendant had served four prior prison terms (§ 667.5, subd. (b)).
The parties agree that the trial court erred in staying one of the four enhancements rather than striking it. We agree with the parties. We shall modify the judgment to strike the enhancement and affirm as modified.

Pursuant to a negotiated plea agreement, Juan Carlos Aquino pleaded no contest in 2007 to two counts of second degree robbery and admitted he had personally used a firearm in the commission of those offenses. Aquino’s counsel advised him during the plea hearing that Aquino could lose his legal residency and be deported as a consequence of his plea. In 2018, following completion of his state prison sentence and placement in federal custody on an immigration hold, Aquino moved pursuant to Penal Code section 1473.7 to vacate his convictions, arguing his trial counsel was constitutionally ineffective in failing to warn him that deportation was a mandatory, rather than simply a possible, consequence of his plea. The trial court denied the motion on the ground his counsel’s warning was adequate and, in any event, Aquino had not shown prejudice. We affirm.

The juvenile court declared three children to be dependents after their mother pled no contest to failing to protect them from sexual abuse in a household rife with incestual rape. After the mother received 18 months of reunification services, the juvenile court terminated those services and set the matter for permanency planning. The mother has filed a writ petition challenging that termination as unsupported by substantial evidence and infected by evidentiary error. Because her claims lack merit, we deny the writ petition.

Brenda H.’s (mother’s) six-week-old infant, N.H., was removed from her care by the Los Angeles County Department of Children and Family Services (DCFS) in October 2015 when he was less than two months old due to allegations mother had a history of substance abuse and mental illness, and had exposed N.H. to her male companion’s drug use and domestic violence. After approximately one year, the court terminated reunification services for mother, finding she had failed to comply with court-ordered services. Mother gave birth to another child, L.H., in November 2016; he was immediately removed from her care due to her failure to reunify with N.H. The court denied mother’s request for reunification services with respect to L.H.

Defendant and appellant Cooper Lee Partner appeals an order after judgment denying his request for resentencing under Senate Bill No. 620, which amends Penal Code section 12022.53, subdivision (h), to permit the court to strike or dismiss a firearm use enhancement required by that section in the interest of justice pursuant to section 1385.
On May 25, 2005, Partner pleaded no contest to attempted murder (§§ 187/664 [count 1]), and admitted the allegation that he personally used a firearm within the meaning of section 12022.53, subdivision (b), and personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (b). Count 2, assault with a deadly weapon (§ 245, subdivision (a)(1)), was dismissed per plea negotiation.

Scott Britton Carlson appeals from the judgment entered after his conviction by a jury of assault with a deadly weapon (ADW) in violation of Penal Code section 245, subdivision (a)(1). The jury found true an enhancement that he had personally inflicted great bodily injury (GBI). (§ 12022.7, subd. (a).) The trial court sentenced him to an aggregate term of seven years: the four-year upper term for ADW plus three years for the GBI enhancement.
Appellant contends that the trial court violated the prohibition against dual use of facts at sentencing. (§ 1170, subd. (b).) He maintains that, in deciding to deny probation and impose the upper term for ADW, the court erroneously considered the true finding on the GBI enhancement. We affirm.

Defendant and appellant Ryan Martinez pleaded no contest to grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)) and identity theft (Pen. Code, § 530.5, subd. (a)). The trial court placed defendant on formal probation for five years on various terms and conditions, including the condition he serve 365 days in county jail.
The trial court held a victim restitution hearing at which it awarded restitution in the amount of $23,420.66. Defendant appeals from the calculation of that award. The People concede the error. We order the judgment modified to reflect a restitution award in the amount of $22,990.63.

The jury found defendant and appellant Cesareo Vizcarra Medina guilty of first degree burglary (Pen. Code, § 459 [count 1]), two counts of forcible oral copulation (§ 288a, subd. (c)(2)(A) [counts 2 and 5]), sexual penetration by foreign object of a minor over 14 years of age (§ 289, subd. (a)(1)(C) [count 3]), and two counts of attempted forcible rape (§§ 664, 261, subd. (a)(2) [counts 4 and 6]). As to the oral copulation and penetration with a foreign object counts, the jury found true the special allegation that the victim was a child between 14 and 18 years of age. (§ 667.61, subds. (d) & (l) [counts 2, 3, and 5].) It also found true the special allegations that the victim was under 18 years of age in the attempted forcible rape counts. (§ 264, subd. (c)(2) [counts 4 and 6].)

Irma Aguilar Mosqueda (defendant) moved the trial court to vacate her two 2008 drug possession convictions on the grounds that her counsel was constitutionally ineffective for not advising her of the immigration consequences of her plea and for not negotiating an “immigration-safe” disposition. Because the trial court correctly determined that defendant had not carried her burden of establishing the ineffective assistance of counsel, we affirm.

Daniel Molayem (defendant) appeals from a judgment sentencing him to 50 years to life in prison after a jury convicted him of first degree murder conviction (Pen. Code, § 187, subd. (a)) and found true the allegation that he personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). We affirm defendant’s conviction and sentence.