CA Unpub Decisions

Defendant and appellant Sheon Lorenzo James appeals after he was convicted by a jury of five counts of burglary and five counts of petty theft with theft priors. Defendant was sentenced as a third-striker. On appeal, he raises claims that the trial court erred in instructing the jury about the elements of aiding and abetting, and in sentencing defendant as a third-striker. We affirm.

Zaya Essapour was charged with 21 offenses related to his involvement in a conspiracy to defraud elderly homeowners into refinancing their mortgages. He pleaded guilty to one count of theft from an elder, one count of unlawful use of personal identifying information of another, and one count of grand theft. He also admitted that the aggregate losses to the victims exceeded $65,000. The court dismissed the remaining charges with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754 (Harvey)) and ordered Essapour to pay a total of $2,293,915 in restitution, including to victims of uncharged and dismissed counts. Essapour appeals, contending the trial court abused its discretion by: (1) ordering him to pay restitution to victims whose losses were not related to his conduct; and
(2) double counting certain amounts in the restitution award. As we shall explain, we conclude the trial court abused its discretion in holding Essapour jointly and severally responsible for restitution to victims whose losses arose from crimes committed before Essapour joined a conspiracy with his codefendants. Further, the Attorney General concedes and we agree that the trial court made a calculation error.

Shareholder Ken Kahan appeals from an order denying his application for a preliminary injunction to enjoin a corporation from implementing a settlement agreement and from counting votes attributable to a stock issuance without prior approval of the outstanding shares. He contends the court erred in denying his application because he demonstrated both that the balance of harms favored granting the injunction and that he had a probability of succeeding on the merits of his claims. We conclude Kahan did not demonstrate a probability of succeeding on the merits of his claims and affirm the trial court's order.

In his complaint, Matt Hoover alleges that while participating in the dismissal of a previous malicious prosecution action, the defendants, a superior court judge and a justice of the appellate court, violated his federal civil rights within the meaning of section 1983 of title 42 of the United States Code (section 1983). Hoover's complaint seeks declaratory relief in the form of a judgment invalidating the dismissal of the malicious prosecution action.
By way of a demurrer, the defendants argued Hoover's complaint was barred by res judicata and judicial immunity. The trial court sustained the demurrer without leave to amend.
On appeal, Hoover contends his claim is not barred by res judicata because the trial judge in the malicious prosecution action did not consider evidence he wished to offer and did not provide him with additional time to obtain counsel. Hoover also contends judicial immunity does not bar his complaint because he is not seeking damages but only declaratory relief. As we explain, we reject Hoover's contentions and affirm the judgment of dismissal.

A jury convicted defendant Jorge Cabrales of corporal injury to a cohabitant with a great bodily injury enhancement (Pen. Code, §§ 273.5, subd. (a), 12022.7, subd. (e); unless otherwise stated, statutory references that follow are to the Penal Code), threatening a witness (§ 136.1, subd. (c)), and two counts of criminal threats (§ 422). The trial court sustained strike and serious felony allegations (§§ 667, subds. (b)-(i), 1170.12) and sentenced him to 22 years in state prison.
On appeal, defendant contends there is insufficient evidence to support the great bodily injury enhancement and reversing the enhancement entitles him to additional custody credits. We affirm the judgment.

Jeffrey Rinek sued Joseph A. Salazar, Jr., for alleged legal malpractice and fraud committed during the brief period Salazar represented Rinek in a prior lawsuit. The trial court sustained Salazar’s demurrer to the first amended complaint without leave to amend and dismissed the action.
Rinek contends the trial court erred in concluding his claims for legal malpractice and fraud are barred by the applicable statute of limitations. We disagree and affirm the judgment.

The City of Sacramento (the City) appeals from a judgment granting Victor Castro’s petition for writ of administrative mandate. Castro was fired from his job with the City for assaulting his supervisor, Jackie Santoyo. The City’s Administrative Policy Instruction No. 44 (workplace violence policy) provides: “The City will not tolerate violent behavior or threats in the workplace. Any violent behavior related to the employee’s work or work relationships, whether an employee is on or off duty, on or off City property or City workplaces, is prohibited. Violations of this policy will be investigated, and if substantiated, the City will take disciplinary action up to and including termination.”[1]

Defendant and appellant, Rene Velasquez, appeals from the judgment entered following a court trial which resulted in his conviction of the serious (Pen. Code, § 1170, subd. (h)(3))[1] and violent (§ 667.5, subd. (c)) felony of second degree robbery (§ 211) of a victim 65 years of age or older (§ 667.9, subd. (a)) and his stipulation to the allegations he previously had been convicted of five felonies for which he served terms in prison or county jail pursuant to section 667.5, subdivision (b). The trial court sentenced Velasquez to nine years in prison. We affirm.

A dependency matter went to trial based on a petition alleging the father had failed to comply with his court-ordered service plan. After the close of evidence, the juvenile court amended the petition to state, not that father failed to satisfy the requirements of the court-ordered programs, but that he failed to benefit from those programs. The court sustained the petition, as amended, terminated jurisdiction and issued a family law custody and visitation orders. The father contends he was deprived of notice and the opportunity to be heard as to the belatedly amended allegations. We agree.

Defendant and appellant, Mark Han, appeals his conviction for assault with a semiautomatic firearm, carrying a loaded firearm in public, burglary, attempted criminal threats and negligent discharge of a firearm, with a firearm use enhancement (Pen. Code, §§ 245, [former] 12031 [now, 25850], 459, 664, 422, 246.3).[1] Han was sentenced to state prison for a term of seven years, eight months.
The judgment is affirmed as modified.

A modification decision.

Defendant and appellant, Weiting Chen, appeals the trial court’s denial of a post-judgment motion to vacate his conviction for selling methamphetamine (Health & Saf. Code, § 11379).
The order denying Chen’s motion is affirmed.

Defendant and appellant, Francisco Arturo Nunez, appeals his conviction for attempted murder, aggravated mayhem, torture and corporal injury to a child’s parent, with a great bodily injury enhancement. (Pen. Code, §§ 664, 187, 205, 206, 273.5, 12022.7).[1] He was sentenced to state prison for a term of life.
The judgment is affirmed as modified.

Eduardo Costa appeals from a judgment entered after a court trial, contending that the trial court abused its discretion in denying Costa’s motion to amend his complaint to add Sol Dominicana Airlines (Sol) as a plaintiff. Benedict Sirimanne and CSDS Aircraft Sales & Leasing, Inc. (CSDS), also appeal, contending that insufficient evidence supports the judgment in favor of Costa and against Sirimanne as individuals in Costa’s breach of contract action and that the trial court erred in denying their motion for attorney fees.[1] We conclude that the court erred in denying Costa’s motion to amend to add Sol as a plaintiff to the complaint because Sirimanne and CSDS fail to articulate any facts or legal theories that would have been changed by the proposed amendment and Sirimanne and CSDS would not have been prejudiced by the proposed amendment. We also conclude that sufficient evidence supports the judgment in favor of Costa and against Sirimanne as individuals. We reverse with directions to the trial court to issue an order allowing Costa to amend the complaint to add Sol as a plaintiff. Because we are reversing the trial court’s order denying Costa’s motion to amend the complaint with respect to the causes of action regarding the Lease/Purchase Agreement and therefore the prevailing party will be determined on retrial, we affirm the trial court’s order denying Sirimanne and CSDS’s motion for attorney fees. We affirm the judgment in favor of Costa on his cause of action for breach of contract.