CA Unpub Decisions

Defendant Rafael Berumen appeals from a judgment entered after a jury convicted him of one count of murder in the first degree (Pen. Code, § 187, subd. (a)),[1] and found to be true the firearm allegations (§ 12022.53, subds. (b)-(d)). The jury did not reach a finding on the alleged special circumstance that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)).
Appellant was sentenced to a total term of 50 years to life in state prison based on a term of 25 years to life for his murder conviction and a consecutive term of 25 years to life for the section 12022.53, subdivision (d), firearm enhancement.
Appellant contends that the trial court prejudicially erred when it instructed the jury that, as a matter of law, smirking or grinning is inadequate provocation to reduce murder to manslaughter under a heat of passion theory. Although the instruction may have been erroneous, any error was not prejudicial. We affirm.

Appellant Sam Lutfi (Lutfi) appeals from a trial court order awarding attorney fees to petitioners and respondents James P. Spears and Andrew M. Wallet (collectively respondents). At issue is whether respondents’ renewed motion for attorney fees is governed by Code of Civil Procedure section 1008, subdivision (b) (section 1008), or rule 3.1702 of the California Rules of Court (rule 3.1702). Lutfi contends that rule 3.1702 controls, and that respondents’ renewed motion for attorney fees was untimely pursuant to that rule. Alternatively, Lutfi argues that even if section 1008 governs, respondents’ renewed motion was still untimely and should have been denied. Contrariwise, respondents assert that section 1008, subdivision (b), controls, and that their renewed motion for attorney fees was not untimely.
Like the trial court, we conclude that section 1008, subdivision (b), controls, and that respondents’ renewed motion for attorney fees was not untimely. Accordingly, we affirm the trial court’s order awarding attorney fees against Lutfi and in favor of respondents.

Helen Kelly filed suit against Ports America Management Corporation, Marine Terminals Corporation, James Hilbert, Eric Stordahl and Nic Cosso (collectively, respondents), asserting various employment discrimination related causes of action. The trial court granted respondents’ summary judgment motion. Kelly appeals from the judgment entered in favor of Marine Terminals.[1] We conclude that Kelly raised a triable issue whether the articulated reason for her adverse employment action was pretextual and therefore reverse.

Jose Rosas (appellant) appeals the judgment following a jury trial in which he was found guilty of committing five counts of a lewd or lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1, 3, 5, 7 & 8),[1] sexual intercourse by a person over 18 years of age with a child who is 10 years of age or younger (§ 288.7, subd. (a); count 2), a forcible lewd or lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1); count 4), and continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a); count 6).[2]
The trial court sentenced appellant to an aggregate determinate term of 30 years, as follows: for count 6, a determinate term of 16 years; for count 4 a consecutive determinate term of eight years; and for counts 1, 7 and 8 consecutive determinate terms of two years each (one-third the middle term of six years). It then imposed, for count 2, a fully consecutive term of 25 years to life. The terms for counts 3 and 5 were imposed concurrently. The total term in state prison was 55 years to life.
He contends that he is entitled to a reduction of his conviction in count 4 by striking the jury findings of duress and/or force and imposing the lesser term of punishment for a violation of section 288, subdivision (a), as the evidence is insufficient to show he accomplished this offense by force and/or duress.

We are asked to determine whether a forum selection clause in a contract is valid and applicable to a complaint for fraud filed by A. Kevin Schine. We answer both questions in the affirmative and affirm the order of the trial court granting the motion of Property Solutions International, Inc. (Property Solutions) to stay the action on grounds of forum non conveniens.[1]

Defendant and appellant, Tyreese Basey, appeals his conviction for attempted unlawful driving or taking of a vehicle, unlawful driving or taking of a vehicle, hit and run (property), carjacking and attempted carjacking, with a prior prison term enhancement (Veh. Code, §§ 664, 10851, 20002; Pen. Code, §§ 664, 215, 667.5).[1] He was sentenced to state prison for a term of ten years and six months.
The judgment is affirmed.

A jury convicted defendant Thethesius Mosley of assault to commit a felony during the commission of a burglary (Pen. Code, § 220, subd. (b))[1] (count 1); three counts of forcible rape (§ 261, subd. (a)(2)) (counts 2, 3 & 4); forcible oral copulation (§ 288a, subd. (c)(2)) (count 6); sexual penetration by a foreign object (§ 289, subd. (a)(1)) (count 7); and first degree burglary (§ 459) (count 9). The jury found true the allegations that in the commission of counts 2, 3, 4, 6, and 7, defendant personally used a deadly weapon. (§ 12022, subd. (b)(1).) The jury also found defendant committed counts 2, 3, 4, 6, and 7 during the commission of a burglary with the intent to commit forcible rape. Defendant admitted having suffered a prior prison term under section 667.5.
The trial court sentenced defendant to state prison for 53 years to life. The sentence consisted of the following: concurrent terms of 25 years to life in counts 2, 3, and 4, plus one year for the weapon enhancements in these counts; concurrent terms of 25 years to life in counts 6 and 7, plus one year for the weapon enhancements in these counts to be served consecutively to the sentences in counts 2, 3, and 4. The trial court imposed one additional year for defendant’s prior prison term enhancement. In count 1, the trial court imposed life with the possibility of parole and stayed the sentence pursuant to section 654. In count 9, the trial court imposed the high term of six years, which was stayed pursuant to section 654.
Defendant appeals on the grounds that: (1) the denial of his posttrial Faretta[2] motion violated his federal constitutional right to self-representation and is reversible per se; (2) the trial court erroneously denied his mistrial motion following the prosecutor’s improper question to the DNA expert; and (3) the trial court abused its discretion in failing to remove a sleeping juror.

Defendant Michael A. Johnson appeals following judgments entered pursuant to no contest pleas entered to resolve these three referenced cases. Specifically, in case No. CR931131, defendant pleaded no contest to count 2, possession of tear gas (pepper spray) (Pen. Code, § 22900) and count 1 was dismissed. In case No. CR931546, he pleaded no contest to counts 1 and 3, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), respectively, and admitted one prior prison term (Pen. Code, § 667.5, subd. (b)); all other allegations were dismissed.[1] The trial court sentenced him to a total of four years (three-year upper term for methamphetamine possession and one year for the prior, and a concurrent 180 days for the suspended license and concurrent year on the tear gas possession), to be completed in local custody pursuant to Penal Code section 1170. In case No. CR931591, the trial court revoked community supervision and imposed 180 days, concurrently with the other sentences.
His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, and has done so. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgment.

Defendants and judgment debtors James and Katherine Robertson appeal from an order of the San Mateo County Superior Court, denying James’s claim of exemption from wage garnishment. Defendants contend the court erred in denying the claim of exemption of earnings necessary for the support of the judgment debtor and his family. (Code Civ. Proc., § 706.051, subd. (b).[1]) They contend that they complied with statutory requisites by filing the claim of exemption and financial statement (§§ 706.105, subd. (b)), that the only evidence in the record was the financial declaration of James in support of the claim of exemption, and that the court was therefore required to apply the presumption the judgment debtor fairly and honestly claimed the exemption in the absence of evidence of fraudulent purpose. Finally, defendants contend that even if plaintiff’s specific objections to particular expenditures were properly denied, they would amount to only $210, so that even removing that amount, a shortfall of more than $1,800 between defendants’ income and expenses would make those items irrelevant.
Plaintiff Universal Home Improvement, Inc. argues that because the record before us does not contain a reporter’s transcript of the hearing, defendants cannot challenge the sufficiency of the evidence on appeal. Plaintiff further contends defendants have waived the issues raised by this appeal by failing to first present them to the trial court. Alternatively, plaintiff argues substantial evidence supports the order denying the claim of exemption. Finally, plaintiff seeks sanctions for the filing of a frivolous appeal and for defendants’ failure to include in the record a “register of actions” required by Rules 8.122(b)(1) and 8.124(b)[2].)
We shall affirm the order and deny the request for sanctions.

Appellant Bay Cities Paving & Grading, Inc. (hereafter appellant or Bay Cities) appeals from an order and judgment denying its petition for a writ of mandate. Pursuant to that petition, Bay Cities challenged the action of the City of San Leandro (hereafter City) in awarding a public works contract to a competing contractor, real party in interest and respondent Oliver DeSilva, Inc., dba Gallagher & Burk (hereafter G&B), the lowest bidder on the project. Bay Cities, the second lowest bidder, alleged that the City could not properly award the contract to G&B because a missing page in G&B’s bid was a material deviation from the contract specifications. We reject this contention and therefore affirm the judgment.

This is an appeal and cross-appeal by the parties to an action brought under Code of Civil Procedure section 1021.5 (hereafter section 1021.5) from an order of the Alameda County Superior Court awarding plaintiffs attorney fees in the amount of $46,992 for their success in filing and pursuing a petition for a writ of mandate challenging the validity of a regulation adopted by the defendant California Fish and Game Commission (hereafter Commission). The challenged regulation designated the Black-Backed Woodpecker (hereafter BBW) as a candidate species for protection under the California Endangered Species Act (CESA), i.e., Fish and Game Code sections 2050 et seq. In its appeal, the Commission asks this court to overturn the trial court’s order granting plaintiffs those attorney fees. In their cross-appeal, plaintiffs also ask us to reverse that award, but on the basis that it was inadequate; they ask us to remand the case to that court “with directions to calculate an adequate fee award . . . .” We will do neither but, instead, affirm the trial court’s order awarding plaintiffs attorney fees.

Benjamin Kroll appeals the denial of his petition for writ of mandate challenging the suspension of his driver’s license by the Department of Motor Vehicles (DMV). (Code Civ. Proc., § 1094.5; Veh. Code, § 13559, subd. (a).) He contends: (1) the trial court’s reliance on the out-of-court statements of a witness who invoked the Fifth Amendment at the DMV administrative hearing deprived him of due process; (2) the trial court did not independently determine the credibility of witnesses at the DMV hearing as it was required to do; and (3) the trial court’s decision is unsupported by substantial evidence. We affirm.

Clenard C. Wade was convicted by a jury of grand theft, battery causing serious bodily injury, criminal threats, assault by force likely to produce great bodily injury, and false imprisonment. In an earlier appeal, we reversed the judgment with directions as to the grand theft conviction, remanded on an issue of presentence conduct credits, and otherwise affirmed the judgment. (People v. Wade (2012) 204 Cal.App.4th 1142 (Wade I).)
In this second appeal, Wade challenges the trial court’s November 30, 2012 resentencing order. Wade contends the trial court should have ordered a supplemental probation report before resentencing, and that the court should have resentenced him on all counts instead of limiting resentencing to the one count reversed in the first appeal. We affirm.

Minor R.W. appeals jurisdictional and dispositional orders entered after the juvenile court found he had possessed knives at school. Minor contends the evidence is insufficient to support the jurisdictional findings. We shall affirm the orders.