CA Unpub Decisions

Appellant Lavelle Shuntel Garrison pled guilty to possession of methamphetamine, (Health & Saf. Code, § 11377, subd. (a)) pursuant to a negotiated plea agreement. The trial court suspended imposition of sentence and placed appellant on formal probation for a period of 686 days with the first 321 days in county jail.[1] Another condition of appellant's probation was that he obey all laws.
On December 26, 2012, a motion to revoke probation was filed. On February 19, 2013, a hearing was held pursuant to People v. Vickers (1972) 8 Cal.3d 451. The court found appellant in violation of probation, revoked probation, and imposed a term of two years in state prison.

Plaintiff and appellant Rebecca Lee David (Rebecca), individually and as successor-in-interest to James Lester David (James or decedent) (collectively, plaintiffs), appeals a judgment following a grant of summary judgment in favor of defendant and respondent Slakey Brothers, Inc. (Slakey).[1]
Plaintiffs contends the summary judgment must be reversed due to procedural and evidentiary errors, and in any event, the trial court erred in granting summary judgment due to the presence of triable issues of material fact.
By way of background, at the time of the summary judgment hearing, decedent lay dying of mesothelioma. We conclude the trial court abused its discretion in refusing to consider decedent’s opposing declaration on the ground it was unsigned, in that by the time of the hearing on the motion for summary judgment, the plaintiffs had submitted a signed copy of the opposing declaration. Further, decedent’s opposing declaration was sufficient to raise a triable issue of material fact as to whether decedent had been exposed to asbestos-containing products supplied by Slakey. Therefore, the judgment is reversed.

Teresa L. Schroeder, as conservator of the estate and person of Ray Dean Rawls, filed a petition seeking attorney fees and costs for the legal services of Jason S. Sheinberg of the San Diego Law Firm (the Firm) rendered during probate proceedings.[1] In this appeal from the order authorizing payment of attorney fees and costs to the Firm from the conservatorship estate of Rawls’s wife, Schroeder contends the probate court abused its discretion by reducing the amount of attorney fees she requested by approximately 38 percent. The court based the award on a reasonable fee for the three-month conservatorship. Because we conclude the court acted within its broad discretion, we affirm the order.[2]

Appellant Ronnie McConnell appeals from a judgment entered after a jury convicted him of two counts of premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a))[1] and found true the allegation that he personally used and intentionally discharged a firearm that caused great bodily injury (§§ 12022.53, subd. (d), & 12022.5, subd. (a)). In a bifurcated proceeding, appellant admitted allegations that he had suffered one prior prison term (§ 667.5, subd. (b)) and a felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), & 1170, subds. (a)-(d)), which was also a serious felony pursuant to Penal Code section 667, subdivision (a).
The trial court sentenced appellant to a term of 75 years to life in prison. On count 1, appellant was sentenced to the base term of seven years to life doubled pursuant to the Three Strikes law, plus consecutive terms of 10 years for the firearm enhancement (§ 12022.5, subd. (a)), five years for the prior serious felony conviction (§ 667, subd. (a)(1)), and one year for the prior prison term (§ 667.5, subd. (b)). On count 2, appellant was sentenced to the base term of seven years to life doubled pursuant to the Three Strikes law, plus consecutive terms of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), five years for the prior serious felony conviction (§ 667, subd. (a)(1)), and one year for the prior prison term (§ 667.5, subd. (b)). The court imposed a $1,000 assessment pursuant to Penal Code section 1464 and Government Code section 76000.
Appellant contends (1) the trial court erroneously admitted, over defense counsel’s objection, irrelevant, inflammatory, and cumulative gang evidence; (2) the imposition of the assessment in the amount of $1,000 was unauthorized; and (3) the reference to Penal Code section 667.61 in the abstract of judgment must be stricken. We disagree with the first of these contentions but agree with the others. Accordingly, we will modify the judgment to strike the unauthorized assessment and the reference to Penal Code section 667.61, and affirm the judgment as modified.

Defendant and appellant, Daniel Joseph Hernandez, appeals from the judgment entered following a jury trial which resulted in his conviction of attempted voluntary manslaughter (Pen. Code, §§ 664, 192)[1] during the commission of which he used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)) and his admissions he previously had been convicted of a felony pursuant to the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony within the meaning of section 667, subdivision (a)(1). The trial court sentenced Hernandez to 20 years in prison. We affirm.

The trial court granted summary judgment in favor of defendants and respondents The Claremont Club (Club) and Adam Qasem (Qasem) on the complaint brought by minor Nicholas Lotz (Nicholas) by and through his guardian ad litem Deborah Lotz (Deborah) and Deborah individually (sometimes collectively appellants).[1] Nicholas was injured in a dodgeball game that took place while he was in the Club’s childcare program. The trial court ruled that a release signed by Nicholas’s father barred appellants’ claims and there was no evidence showing the Club’s conduct amounted to gross negligence beyond the scope of the release. It further ruled the primary assumption of risk doctrine barred appellants’ claims.
We reverse. The evidence offered by appellants showed there were triable issues of material fact regarding the scope and application of multiple releases, whether the Club’s and Qasem’s conduct constituted gross negligence and whether their conduct increased the risk of harm inherent in the game of dodgeball.

Plaintiff, Joseph Simpson, appeals from a summary judgment and a post-judgment order denying relief from judgment pursuant to Code of Civil Procedure sections 437c and 473, subdivision (b).[1] He argues it was error to grant the summary judgment motion of defendant, Charles Drew University of Medicine and Science, because he: has a constitutional right to wear a beard; has a medical condition that excused him from shaving; has established a prima facie case of discrimination and retaliation; is entitled to relief from judgment because of his excusable mistake made in reliance on the trial court’s tentative ruling at the summary judgment hearing; and mistakenly did not amend his complaint to allege his medical condition because the tentative summary judgment ruling was in his favor as to one of the two causes of action. We affirm the summary judgment and post-judgment order denying relief from judgment under sections 437c and 473, subdivision (b) respectively.

Appellant Aubrey Lee Brothers appeals from his convictions and resulting sentence following his no-contest pleas to one count of residential burglary with a person present (Pen. Code,[1] §§ 460, subd. (a), 667.5, subd. (c)(21)), and one count of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)). (He also admitted a prior conviction for a serious felony and a strike, for which he received a negotiated state prison aggregate sentence of nine years.)
Appellant’s counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally.

Luis A. Hernandez stalked and brutally killed the woman with whom he had lived for almost 18 years and had two children. A jury convicted him of first-degree murder and stalking. In connection with the murder conviction, the jury found true a special-circumstance allegation of killing by means of lying in wait and an enhancement allegation of using a deadly weapon. In connection with the stalking conviction, the jury found true the enhancement allegations of using a deadly weapon and of inflicting great bodily injury under circumstances involving domestic violence.[1] The trial court sentenced Hernandez to life imprisonment without the possibility of parole for the murder conviction, and imposed a consecutive one-year sentence for the enhancement of using a deadly weapon. It stayed sentencing for the stalking conviction and related enhancements.
On appeal, Hernandez argues that his murder conviction must be reversed because (1) he was prevented from introducing a statement he allegedly made after the killing that the victim had “cheated” on him; (2) two prior uncharged acts of domestic violence were allowed into evidence; and (3) the cumulative effect of these errors denied him due process. We reject each claim and affirm.

The International Brotherhood of Electrical Workers, Local 595 (the Union) commenced this action in an effort to enforce a stop notice, and to recover $159,262.72 against B Side, Inc. (B Side), the primary contractor on a construction project for the Oakland Unified School District (the School District). The Union appeals after the trial court granted B Side’s motion for judgment on the pleadings without leave to amend based on the trial court’s finding that the Union had failed to establish standing to enforce the stop notice on a public work of improvement.[1] We conclude that while the trial court’s finding was correct based on the allegations made in the Union’s original complaint, this case must be reversed and remanded because the trial court abused its discretion by granting the motion without leave to amend. The Union should be allowed an opportunity to remedy deficiencies in its complaint, such as adding: (1) additional named plaintiffs; (2) allegations clarifying the basis for the Union’s argument that it was a proper claimant under the stop-notice statutes because it conferred “skill or other necessary services on” the project (§§ 3110; 3181); and (3) allegations attempting to fit within the statutory definition of “laborer” (§ 3089, subd. (b)). Consequently, we reverse with directions to grant the motion with leave to amend.[2]

This is an appeal from judgment after a jury convicted defendant Marcel Perry of first degree murder, shooting at an occupied vehicle and felony gun possession with various gun- and gang-related enhancements. The trial court thereafter sentenced defendant to 55 years and eight months to life in prison. Defendant challenges the judgment on the grounds that the prosecutor’s excusal for cause of two African-American female prospective jurors violated his right to a fair and impartial jury, and that the prosecutor’s insinuation of facts not in evidence during his cross-examination rendered his trial fundamentally unfair. We affirm.

Following a jury trial, petitioner was found guilty of receiving stolen property. In a bifurcated proceeding, the court found true a prior strike and an on bail enhancement. On July 20, 2012, petitioner was sentenced on case No. 11NF0920, and case No. 10NF3346 [a guilty plea] to 6 years in state prison.
Petitioner was represented at trial in case No. 11NF0920 by public defender Catherine Learned. After the jury returned its verdict, petitioner told Learned that she wanted to appeal the verdict in this case, and believed that Learned would do whatever was needed to “start” her appeal. However, prior to petitioner’s sentencing hearing, her family retained Attorney George Vincent Vargas to represent her. Petitioner believed that Vargas was standing-in for Learned. However, Vargas believed that the scope of his representation was limited to sentencing hearing matters only. After petitioner was sentenced, Vargas never discussed with her about filing an appeal.

A jury convicted Cesar Velazquez Rodriguez of possessing for sale methamphetamine (Health & Saf. Code, § 11378) and cocaine (Health & Saf. Code, § 11351), possessing a firearm and ammunition as a felon (Pen. Code, §§ 12021, subd. (a)(1), 12316, subd. (b)(1)), and cultivating marijuana (Health & Saf. Code, § 11358). After Rodriguez admitted he suffered a prior strike conviction, the trial court imposed an 11 year and 8 month prison sentence. We affirmed the convictions but remanded the matter for resentencing to allow the trial court to determine whether to impose consecutive or concurrent sentences on the convictions for possession of methamphetamine for sale (count 1) and felon in possession of a firearm (count 5), and to state its reasons if it decided to impose a consecutive term. The trial court on remand imposed consecutive terms on these counts. Rodriguez contends the court abused its discretion in reaching its decision, but for the reasons expressed below, we discern no basis to overturn the judgment.

All American Semiconductor, LLC ( plaintiff), appeals from a judgment and attorney fee order after the trial court granted summary adjudication in favor of APX Technology Corporation (APX) on plaintiff’s trade secret misappropriation cause of action. Plaintiff contends triable issues of fact precluded summary adjudication, and plaintiff argues the trial court erred in awarding APX attorney fees on grounds of bad faith (Civ. Code, § 3426.4) after the court concluded plaintiff’s trade secret claim was completely baseless. As we explain, despite the complexity of the technological subject matter, this appeal turns on straightforward summary adjudication and fee award review principles under which plaintiff’s claims have no merit. We therefore affirm the judgment.