CA Unpub Decisions

Defendant and appellant Roger Gutierrez entered a plea of no contest in October 2010 to a charge of second degree robbery (Pen. Code, § 211) and admitted the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). Pursuant to an agreed upon case disposition, imposition of sentence was suspended, and defendant was placed on formal probation for three years conditioned upon, among other things, service of one year in county jail.
Formal probation violation proceedings were commenced against defendant in 2012. Testimony at the formal probation violation hearing established that defendant ran upon seeing police officers. A loaded .22 caliber handgun was found in the area where defendant jumped over a fence. Defendant ran into a residence, without the permission of the resident, and refused to leave when requested. He was taken into custody in the residence.
Based on this evidence, the trial court found defendant in violation of probation. Probation was revoked and terminated. Defendant was sentenced to prison for a total of 13 years, consisting of 3 years for the robbery and 10 years for the gang enhancement. Defendant filed a timely notice of appeal.

Defendant and appellant Kevontre Lamont Halcromb was charged by information with second degree robbery in violation of Penal Code section 211. The information also alleged that appellant personally used a handgun, and that a principal in the robbery was armed with a handgun, within the meaning of Penal Code sections 12022.53, subdivision (b), and 12022, subdivision (a)(1), respectively.
A jury found appellant guilty of robbery, but found the gun allegations to be not true. Appellant was sentenced to the mid-term of three years in state prison. Appellant appeals his robbery conviction. Finding no error, we affirm.

Appellant Joshua Emmanuel Jones was charged with one count of grand theft (Pen. Code, § 487, subd. (a)),[1] one count of attempted grand theft (§§ 664/487) and five prior felony convictions within the meaning of section 1203, subdivision (e)(4). Appellant was charged with having committed a prior serious felony for the purpose of being committed to state prison, if convicted in the instant case. (§ 1170, subd. (h)(3).) He was charged pursuant to section 667.5, subdivision (b) with having committed two felonies and with not remaining free of prison custody during a period of five years subsequent to the conclusion of these terms. He was also charged pursuant to section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i), with one prior strike conviction.
A jury convicted appellant of attempted grand theft but deadlocked on the grand theft charge. The court declared a mistrial on this charge. The information was amended to allege a petty theft, a misdemeanor. Appellant entered a plea of nolo contendere to this charge.
In a bifurcated proceeding, the court found that appellant had committed a prior serious felony for purposes of section 1170, subdivision (h)(3). The court found true that appellant had suffered a prior strike conviction and that he had not remained free of custody during a period of five years after serving a term of conviction.
Appellant was sentenced to a term of four years in state prison for the attempted grand theft, composed of the high term of three years for attempted grand theft and one year under section 667.5, subdivision (b). Appellant was sentenced to a concurrent term of six months in county jail on the misdemeanor conviction.

Plaintiff David Christensen appeals from the judgment entered upon the order of the superior court sustaining the demurrer of defendants Ellen Grai and Deborah Strickland of the Uninsured Employers Benefit Trust Fund (the Fund) and denying leave to amend. Plaintiff and the Fund had entered into a settlement of his worker’s compensation action. The Worker’s Compensation Appeals Board (WCAB) approved the settlement. Plaintiff filed the instant complaint after Grai and Strickland allegedly delayed mailing him the settlement check. We conclude the superior court properly sustained the demurrer and denied leave to amend because it has no authority to hear plaintiff’s case. Although plaintiff’s complaint alleges causes of action for breach of contract and of fiduciary duty, negligence, and fraud, his prayer seeks the same damages for the same injuries that were the subject of his worker’s compensation action, over which the WCAB has exclusive jurisdiction. Alternatively, we hold the trial court properly denied leave to amend because plaintiff’s complaint is barred by plaintiff’s failure to comply with the Government Claims Act. (Gov. Code, § 900 et seq.) Accordingly, we affirm.

Appellant KTDA III Associates, LLC (KTDA) contends the trial court erred in denying its application for leave to file a third amended complaint. It further contends the trial court abused its discretion in awarding expert fees as costs pursuant to Code of Civil Procedure section 998 since no expert witnesses testified at trial. For the reasons discussed, we disagree. Accordingly, we affirm the judgment.

Minority shareholders of a cooperative filed a complaint against the cooperative, claiming its voting procedures violated the Corporations Code. The cooperative responded by filing a special motion to strike under Code of Civil Procedure section 425.16. The trial court denied the motion. The cooperative appeals from the order of denial, contending the trial court erred in concluding the challenged conduct did not arise from protected activity. We reverse.

Leo James Terrell (Terrell) and Inglewood Neighborhood Housing Services, Inc. (INHS) (collectively appellants) appeal from a ruling dated October 13, 2011, imposing monetary sanctions in the total amount of $16,175 against appellants for discovery violations.[1] Terrell also challenges the trial court’s denial of his motion for reconsideration of the sanctions order. We find no abuse of discretion in the trial court’s rulings, therefore we affirm.

Defendants and appellants Anna Hunanyan also known as Anna Hunanyan-Meguerian also known as Azniv Meguerian, and Lucy Meguerian appeal from a judgment quieting title to certain property in favor of plaintiffs and respondents Jonathan Degann and Tina Degann (the Deganns). Appellants and the Deganns are adjacent landowners, and the Deganns believed that the property they purchased included certain outdoor improvements. A survey revealed that part of the improved area included appellants’ property. Following a bench trial, the trial court ruled that the Deganns had established all elements of adverse possession. It specifically ruled the Deganns’ evidence that their property had been assessed on the basis of their purchase price, coupled with evidence that they considered their purchase price to include the visible improvements, was sufficient to demonstrate they had paid property taxes on that portion of appellants’ property.

The jury found defendants and appellants Francisco Ramon Lozano and Nancy Marie Besenty guilty in count 1 of the murder of Yesenia Quintanilla (Pen. Code, § 187, subd. (a))[1] and in count 2 of the attempted willful, deliberate, and premeditated murder of Carlos Quintanilla (§§ 664, 187, subd. (a)). The jury found true as to both counts that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subds. (b)(5), (b)(1)(C)). As to Lozano, the jury found that he personally and intentionally discharged a firearm, causing great bodily injury and death (§ 12022.53, subds. (d), (e)(1) (counts 1 and 2)). The trial court found that Lozano served two prior prison terms within the meaning of section 667.5, subdivision (b).[2]
The trial court sentenced defendants to 50 years to life in prison on count 1, comprised of 25 years to life for murder and 25 years to life for the firearm use. As to count 2, defendants were sentenced to life in prison, plus a consecutive 25 years to life for firearm use. As to Lozano, the court additionally imposed two one-year prison terms for the priors under section 667.5, subdivision (b).
Besenty contends on appeal that her convictions must be reversed because they are based on uncorroborated accomplice testimony. Alternately, she argues that even taking the accomplice testimony into consideration, there is insufficient evidence to support her convictions on an aiding and abetting theory. Besenty additionally contends that the trial court’s refusal to strike expert witness testimony violated her right to due process. Finally, she alleges prosecutorial misconduct and argues she was prejudiced by the cumulative errors at trial. Appointed counsel for Lozano filed an opening brief raising no issues but requesting this court to independently review the record for arguable contentions pursuant to People v. Wende (1979) 25 Cal.3d 436. We address the issues raised by Besenty, in addition to undertaking a review of the record with respect to Lozano’s convictions, as required by Wende. We affirm both judgments.

Defendant, Labor Ready Southwest, Inc., appeals and plaintiff, Jeffrey L. Allen, cross-appeals from an order compelling arbitration of alleged Labor Code violations. The trial court also severed from arbitration plaintiff’s request for relief under the Private Attorneys General Act of 2004 (Lab. Code,[1] § 2698 et seq.) pursuant to this division’s opinion in Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 502 (review den. Oct. 19, 2011; cert den. Ralphs Grocery Co. v. Brown (Apr. 16, 2012) [132 S. Ct. 1910]). Plaintiff’s cross-appeal asserts the arbitration agreement was unconscionable under general contract principles or that defendant waived the right to compel arbitration. We reverse the order compelling arbitration because defendant waived the right to compel arbitration as a matter of law. Defendant’s appeal is therefore moot.

Plaintiff and appellant Samuel T. Rees (Rees) appeals from the summary judgment entered in favor of defendant and respondent Barry R. Laubscher (Laubscher) in this action for breach of contract and for dissolution and accounting of a partnership. Rees also appeals the denial of his motion for costs under Code of Civil Procedure section 1032 following Laubscher’s voluntary dismissal of a cross-complaint. We affirm the judgment and the order denying Rees’s motion for costs.

Charles Champion (appellant) appeals from a judgment entered after a bench trial in favor of Maloof Racing Engines, Inc. (respondent). The matter arises out of a transaction between appellant and respondent for a comprehensive restoration of appellant’s 1965 Ford Mustang automobile. The trial court found in favor of respondent on respondent’s claims against appellant for breach of written contract, breach of the implied covenant of good faith and fair dealing, common count for goods sold and delivered, common count for open book account, unjust enrichment, and quantum meruit. We affirm.

Defendant and appellant Jose M. Solis appeals from his conviction of two counts of lewd act upon a child under the age of 14. He contends that the trial court was required to instruct the jury with regard to battery as a lesser included offense. He also contends that Evidence Code section 1108 violates the United States Constitution, and that the trial court erred in admitting propensity evidence. We conclude that defendant’s contentions are without merit and affirm the judgment.

Plaintiffs and appellants Steven Spahl and Donny Spahl (collectively, plaintiffs) appeal the dismissal of their action against defendants and respondents Artemio Santiago (Santiago) and Santiago, Rodnunsky & Jones (SRJ)[1] after the trial court granted defendants’ motion for sanctions under Code of Civil Procedure section 128.7.[2] Plaintiffs also appeal the trial court’s order imposing $5,515 in sanctions against them. We affirm the sanctions order and the order dismissing plaintiffs’ action with prejudice.