CA Unpub Decisions

In an information filed by the Los Angeles District Attorney, defendant and appellant Hector Orlando Oliva was charged with possession for sale of cocaine base (count I; Health & Saf. Code, § 11351.5), possession for sale of a controlled substance (count II; Health & Saf. Code, § 11351), and possession for sale of a controlled substance (count III; Health & Saf. Code, § 11378).
On November 8, 2010, appellant waived his rights and pursuant to a plea agreement, he pleaded nolo contendere to count I. He was placed on three years of formal probation as to count I, with the condition that he serve 120 days in county jail. He was given 90 days of custody credits, which included 45 days of actual custody and 45 days of good time/work time. The trial court further ordered him to pay a $40 court security assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $150 drug program fee (Health & Saf. Code, § 11372.7), a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), and a $200 suspended parole revocation fine (Pen. Code, § 1202.46). Counts II and III were dismissed pursuant to the plea agreement.

Appellant mother seeks to reverse the dependency court’s order terminating her parental rights with respect to her three children. She contends that there was insufficient evidence that her children were adoptable, and the court abused its discretion by not placing the children with maternal aunt. We disagree and affirm.

Appellant International Security & Defense Management, LLC (ISDM), a Nevada limited liability company, with its principal place of business in California, brought suit against Fluor Intercontinental, Inc. (FII), a California corporation, with its principal place of business in South Carolina. The litigation arose out of two contractual agreements between the parties put out for bid by FII’s South Carolina offices and negotiated on FII’s behalf primarily by persons working and residing in South Carolina. The trial court granted FII’s motion to dismiss for forum non conveniens. ISDM appeals, contending the court abused its discretion. We affirm.

Appellant Believe Kelson appeals from the judgment following a bench trial in which he represented himself. The trial court found appellant guilty of felony assault with a firearm (Pen. Code, § 245, subd. (a)(2)) (count 1) and misdemeanor vandalism (Pen. Code, § 594, subd. (a)) (count 4). The trial court did not find appellant guilty of two other assault counts. The trial court also found true the allegation that appellant personally used a firearm during the commission of count 1 (Pen. Code, § 12022.5,
subd. (a)). Appellant admitted that he had suffered a prior conviction for violation of Health and Safety Code section 11352, subdivision (a). The trial court sentenced appellant to state prison for eight years, consisting of the midterm of three years on count 1, plus four years for the gun enhancement, plus one year for the prior conviction. The trial court imposed various fines and fees and awarded appellant 193 days of presentence custody credit.

Jonathan Wish (Wish) was convicted of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)[1] (count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 3).[2] On appeal, Wish contends that the trial court deprived him of his constitutional right to present a defense when it precluded his ex-wife, Valerie Wish (Valerie), from testifying that the three children she had with Wish were in Argentina at the time of trial. In Wish’s view, the trial court’s ruling prevented him from proving that Valerie was using the case to deny Wish access to the children, and that she had a motive to lie about the alleged crimes. He further contends that the trial court abused its discretion under Evidence Code section 352 when it allowed the prosecution to present two prior acts of domestic violence under Evidence Code section 1109.[3] We find no error and affirm.

Landlord Julian Zablen (Zablen) previously sued tenant Yisroel David Kagan for breach of a commercial lease. Judgment was entered for Zablen, a writ of possession was issued, and Kagan vacated the premises.
Kagan appealed. This court reversed the judgment, holding Zablen’s stated reason for declaring Kagan’s default under the lease did not, as a matter of law, constitute a material breach of the lease. By that time, however, Zablen no longer owned the real property at issue and could not restore Kagan to his rights under the lease.
Kagan then filed this lawsuit seeking damages for Zablen’s breach of the lease and for various tort causes of action. The trial court sustained Zablen’s demurrer to Kagan’s tort-based claims. Kagan challenges that ruling as to one of those causes of action. Finding no error, we affirm the order sustaining the demurrer.

A modification decision.

The jury found Timothy Leon Atkins guilty as charged with murder and robbery. He was sentenced to prison for an indeterminate term of 25 years to life, plus a determinate term of 7 years. The Los Angeles County Superior Court subsequently granted Atkins’s habeas corpus petition and vacated his conviction. Atkins, who had served 23 years of his sentence, filed a claim based on his assertion of innocence for $713,100 before the California Victim Compensation and Government Claims Board (the “Board”). The Board denied his claim. The Superior Court denied Atkins’s mandate petition challenging the Board’s decision (Code Civ. Proc., §1094.5). On appeal, Atkins contends the proper burden of proof for establishing his innocence is preponderance of the evidence, which the Board mischaracterized as “a heavy burden.” He challenges as invalid the regulation requiring “substantial independent corroborating evidence that claimant is innocent of the crime charged.” (Cal. Code Regs., tit. 2, § 641, subd. (a).) He further contends he met this burden by producing substantial corroborating evidence and that the Board failed to give collateral estoppel effect to the innocence-related findings of the habeas corpus judge. We invited the parties to submit supplemental briefing on whether the Board’s failure to set forth its factual and legal bases for the denial of Atkins’s claim in its Amended Notice of Decision mandates reversal of the judgment and remand to the Board either to hold a new hearing and afterward issue written factual and legal bases for its decision or to vacate its Amended Notice of Decision and issue a written decision with its factual and legal bases for denying Atkins’s claim. The parties have submitted responses. We reverse the judgment and remand the matter to the superior court with directions to vacate its judgment denying Atkins’s petition for writ of mandate, enter a judgment granting Atkins’s mandate petition, directing the Board to hold a new hearing followed by written findings as required by law.

Amirhossein Shiringoharian (defendant) was convicted on counts for grand theft automobile, receiving a stolen automobile, receiving stolen property, grand theft of credit cards, theft of identifying information to obtain credit, goods or services (identify theft), and burglary. On appeal, he contends that the convictions on counts 1, 2, 3, 4, 5, 10, 12, 19, 23, 24, 25, 26, 27, 28, 29 and 34 were based on insufficient evidence. Upon review, we find no error and affirm the judgment.

This opinion follows our July 12, 2013, order granting Anderson’s petition for rehearing and effectively vacating our prior opinion in this matter (In re Anderson on Habeas Corpus (June 17, 2013, B232746) [nonpub. opn.]; Cal. Rules of Court, rule 8.268(d)). We vacated our original opinion in order to address Anderson’s contentions and provide the People an opportunity to file an answer. Having done so, we now refile the same opinion we filed previously with the sole addition of a new footnote number 8 on page 25.
Petitioner William French Anderson was the appellant in People v. Anderson (2012) 208 Cal.App.4th 851, which affirmed the judgment entered following his conviction by jury of continuous sexual abuse of a child under the age of 14 years and three counts of lewd act with a child under the age of 14 years. (Pen. Code, §§ 288.5, 288, subd. (a).) In addition to the appeal from the judgment, Anderson filed this writ petition to raise ineffective assistance of counsel issues. After ordering the petition and the appeal to be considered concurrently, we severed the matters to prevent further delay of the appeal. We now consider Anderson’s claim counsel rendered ineffective assistance in failing to challenge the admissibility of a secretly recorded conversation in which the victim confronted Anderson and requested an apology for his years of abuse. We issued an order to show cause. Upon review of the evidence in the record and before us by declaration, we conclude an evidentiary hearing is unnecessary, deny the petition and discharge the order to show cause.

Based on a fatal drive-by gang shooting, defendant Martin Cerda, Jr., was convicted of first degree murder (Pen. Code, § 187),[1] conspiring to commit murder (§§ 182, subd. (a)(1), 187), shooting a firearm from a motor vehicle (former § 12034, subd. (c)),[2] conspiring to shoot a firearm from a motor vehicle (§§ 182, subd. (a)(1), 12034, subd. (c)), and street terrorism (§ 186.22, subd. (a)). The jury also found that the murder, conspiracy, and shooting offences were committed to benefit a street gang (§ 186.22, subd. (b)(1)) and that a principal in the offenses used a firearm resulting in the death of the victim (§ 12022.53, subd. (e)(1)). The court sentenced defendant to prison for 50 years to life.
Defendant appeals his conviction on several grounds. He claims that the prosecutor acted with purposeful ethnic discrimination in exercising peremptory challenges against two African-Americans and that the court erred in admitting evidence that the vehicle used in the shooting had been used in a prior crime, in admitting police testimony describing prior gang killings, in admitting a letter written by defendant in custody awaiting trial, and in imposing stayed gang enhancements. We shall modify the sentence to strike the unauthorized gang enhancements but affirm the judgment in all other respects.

A jury convicted defendant Alberto Alejandre of first degree murder (Pen. Code, § 187),[1] conspiring to commit murder (§§ 182, subd. (a)(1), 187), conspiring to shoot a firearm from a motor vehicle (§ 182, subd. (a)(1), former § 12034, subd. (c)),[2] and street terrorism (§ 186.22, subd. (a)). The jury also found that the murder and conspiracy offences were committed to benefit a street gang (§ 186.22, subd. (b)(1)), and that a principal in the offenses used a firearm resulting in the death of the victim (§ 12022.53, subd. (e)(1)).

Plaintiff Mike K. Wong appeals from the superior court’s order vacating under Code of Civil Procedure section 473, subdivision (b)[1] a default judgment he had obtained against defendant Paul David Witt. Wong contends that court abused its discretion in granting Witt’s motion to vacate because Witt failed to produce any evidence that could have supported a grant of his motion. We agree and reverse the order.

Plaintiff Victor Lindzy appeals from the order granting defendant Q-Railing USA Company’s special motion to strike his complaint alleging unfair competition, intentional interference with prospective economic relations, and declaratory relief. (Code Civ. Proc., § 425.16; all further statutory references are to this code unless otherwise stated.) He contends defendant did not establish “the challenged cause[s] of action arises from a protected activity” and even if it did, he demonstrated “a probability [of] prevail[ing] on his claims.”