CA Unpub Decisions

Ronald Evan Newman (appellant) appeals from the judgment entered upon his convictions by jury of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 2),[1] burglary (§ 459, count 3), two counts of making criminal threats (§ 422, counts 4 and 5), and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1), count 6). Prior to trial, count 1 was dismissed pursuant to section 1382. The trial court sentenced appellant to two years in state prison, selecting the low term of two years for count 2. The court imposed concurrent terms of 16 months to two years on counts 3 through 6. Appellant contends the trial court erred by (1) not staying his sentence on count 3 under section 654 on the ground the burglary and assault were incident to the same intent and objective; and (2) not staying his sentence on count 5 under section 654 on the ground the criminal threat and witness dissuasion involved the same victim and were incident to the same objective.
The multiple victim exception to section 654 authorizes separate and concurrent sentences for the burglary and assault. We agree with appellant that the concurrent sentence for count 5 should have been stayed. We modify the judgment to correct the sentencing error and affirm the judgment as modified.

Defendant and appellant Albert Miller appeals his conviction, by jury trial, of evading an officer with willful disregard, a felony (Veh. Code, § 2800.2, subd. (a)), evading an officer against traffic, a felony (Veh. Code, § 2800.4), and driving with a suspended or revoked license, a misdemeanor (Veh. Code, § 14601.2, subd. (a)). Appellant maintains that a multiplicity of errors in the trial court cumulatively denied him a fair trial. We find no error, and so affirm the judgment.

Plaintiff William Sepe claims a right to 50 percent of the royalties his brother Anthony Sepe received for the composition entitled “You’re the First, the Last, My Everything” made famous by the late Barry White (the song). After Anthony died, plaintiff sued Anthony’s children and the trustee of the Sepe Family Trust (the Sepe defendants) over the publishing royalties, and Music Royalty Consulting, Inc. (MRCI) and Parviz Omidvar (the MRCI defendants) over the songwriting royalties.[1] Plaintiff appeals from the dismissal of his lawsuit after the trial court sustained defendants’ demurrers without leave to amend. We hold the statute of limitations in Code of Civil Procedure section 366.2[2] does not apply to plaintiff’s claims against the Sepe defendants. We further hold the second amended complaint adequately pled causes of action for intentional interference with contract against Anthony’s children and for declaratory relief against the trustee. However, section 366.2 bars plaintiff’s causes of action against the MRCI defendants. Accordingly, we reverse that portion of the judgment concerning the causes of action for intentional interference with contract and declaratory relief against certain Sepe defendants and affirm the judgment in all other respects.

In May 2010, defendant, already in default, learned that plaintiff was seeking a default judgment. Nevertheless, defendant did not move to vacate the default and default judgment until a full year later, in May 2011. The trial court granted the motion in part, modifying the original default judgment by deleting a monetary award in favor of plaintiff. We conclude that, because the original default judgment was not void and because defendant did not act with reasonable diligence, the trial court erred by modifying the judgment.

This appeal concerns an order imposing monetary sanctions under Code of Civil Procedure section 177.5 in the amounts of $1,100 and $1,500 on counsel for the defendant in a wrongful death action. The trial court found that attorney Davida Frieman (Frieman) violated an in limine order excluding all evidence of the decedent’s arrests, convictions, and incarcerations without first obtaining the court’s approval, and that Frieman’s supervising attorney, Rickey Ivie (Ivie), knowingly violated the order.
The record discloses no abuse of discretion by the trial court. We therefore affirm the monetary sanctions order.

Appellant Nicky Griffin, married to the victim, Carolyn Jordan, was charged with inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)),[1] a felony, with attempted second degree robbery (§§ 664, 211) and with false imprisonment (§ 236). A jury found appellant guilty of the lesser included offense of misdemeanor battery on the first count and not guilty of attempted robbery. The jury deadlocked on the false imprisonment charge and the court declared a mistrial. Imposition of sentence was suspended and appellant was placed on probation, the condition being the time (194 days) served in county jail.[2] The court imposed various fines and assessments that are not at issue. The appeal is from the judgment.
The sole issue on appeal is whether the conviction is supported by substantial evidence.

Appellants John Daniel Torrez (Torrez) and Christie Lynn Brown (Brown) appeal from judgments entered against them following their convictions by jury of first degree burglary (Pen. Code, § 459).[1] The jury found Torrez guilty of two counts, and Brown guilty of one count. Torrez waived a jury trial on his prior conviction allegations and the trial court found true that he had suffered a prior serious felony conviction for attempted robbery (§ 664/211) within the meaning of section 667, subdivision (a)(1) and the “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and that he had suffered two prior convictions within the meaning of section 667.5, subdivision (b). Torrez was sentenced to 15 years in state prison, consisting of four years on the first count of burglary doubled pursuant to the Three Strikes law, plus five years for the prior serious felony and two one-year enhancements pursuant to section 667.5, subdivision (b). The court imposed a concurrent term of four years for the second count of burglary. Brown was sentenced to state prison for two years.
Torrez contends the evidence was insufficient to support his conviction for first degree burglary and that the four-year concurrent sentence imposed for the second count of burglary should have been stayed pursuant to section 654. Brown contends the court erred in excluding relevant evidence establishing the defense of duress.
Finding no merit in the contentions, we affirm the judgments.

Plaintiff Coliseo Housing Partnership appeals from an August 18, 2011 judgment in favor of defendants POZ Village Development Inc. (“POZ”) and The Bedford Group (“Bedford”). Plaintiff sought to cancel a promissory note payable to defendant POZ (“Developer’s Note”) and declaratory relief related to the note’s validity. Plaintiff argues the trial court erred in ruling the cancellation claim was barred by the statute of limitations. In addition, plaintiff contends the Developer’s Note was superseded by the amended partnership agreement’s integration clause and thus void. Plaintiff also asserts the trial court erred in finding the Developer’s Note was supported by consideration. Furthermore, plaintiff argues it was error to find the Developer’s Note was enforceable given Bedford’s admission that the note was the result of tax evasion. On cross-appeal, defendants argue they were entitled to costs as the prevailing party under Code of Civil Procedure section 1032. We find no error and affirm the judgment.

Matthew Thomas Turner appeals the judgment entered following his conviction by jury of murder and attempted murder in which he personally discharged a firearm causing death or great bodily injury and acted for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a), 664, 12022.53, subd. (d), 186.22, subd. (b)(1)(C).) The jury also convicted Turner of possession of a firearm by a minor for the benefit of a criminal street gang. (Former Pen. Code, § 12101, subd. (a)(1); § 186.22, subd. (b)(1)(A).)[1]
Turner’s first trial ended in a mistrial after the jury was unable to reach a verdict. Upon retrial, Turner was found guilty as charged. Turner retained new counsel and filed a motion for new trial. After conducting an extended evidentiary hearing, the trial court denied the motion. On appeal, Turner contends the trial court abused its discretion in admitting evidence of statements the surviving victim made to his friend at the hospital, the trial court erroneously denied the motion for new trial and defense counsel rendered ineffective assistance in numerous respects. We reject these contentions and affirm the judgment.

Lloyd Marino appeals from the judgment entered following a jury trial on his claims for unpaid wages and breach of employment contract against his former employer, Pro Sports & Entertainment, Inc. (Pro Sports); its president, Paul H. Feller; and Stratus Media Group, the parent of Pro Sports. We affirm.

Petitioners Charles Simmons et al. (collectively “Simmons”), brought a toxic tort suit against real party in interest, Chevron USA, Inc., (Chevron), in Contra Costa Superior Court. Petitioners Rebecca Adams et al. (collectively “Adams”), filed a similar suit shortly thereafter. The Simmons and Adams plaintiffs share the same counsel. Plaintiffs in both cases seek mandamus relief ordering the superior court to grant their peremptory challenges, filed pursuant to Code of Civil Procedure section 170.6,[1] after the trial court denied the challenges as untimely. Upon our own motion, we hereby consolidate these related writ proceedings for purposes of disposition, and, for reasons explained below, grant mandamus relief as requested.

The juvenile court adjudged defendant a ward of the court under Welfare and Institutions Code section 602, subdivision (a). After a contested restitution hearing, the court ordered defendant to pay victim restitution in the amount of $3,246.80. Defendant contends the lower court abused its discretion in issuing the restitution order because insufficient evidence in the record supports this amount. We affirm the lower court’s order.

Sixteen-year-old M.D. (the minor) appeals from juvenile court orders finding that he committed felony robbery and placing him on probation. He contends that there is no evidence of force to support the robbery finding and that certain terms of his probation incorporated in the judgment differ from those imposed by the court and are unconstitutional, unreasonable, or vague. We affirm the robbery finding but agree, as does the Attorney General, that the challenged probation conditions must be modified to conform to the juvenile court’s oral pronouncements.

Rachel Swann filed a class action against her former employer, Specialty’s Café & Bakery, Inc. (Specialty’s), alleging claims for unpaid overtime and failure to provide meal breaks and rest periods. Specialty’s filed a motion to compel arbitration, which the trial court denied, concluding that Specialty’s failed to demonstrate an agreement to arbitrate and, moreover, that whatever agreement did exist was unconscionable. Specialty’s appealed.