CA Unpub Decisions

On February 28, 2011, a jury found appellant guilty of five counts of second degree robbery (Pen. Code, § 211).[1] As to count 2, the jury found true that a principal was armed with a firearm (§ 12022, subd. (a)(1)). As to counts 3 and 5, it found true that appellant personally used a firearm (§ 12022.52, subd. (b)). The jury found not true that appellant personally used a firearm as to count 1. Appellant filed a motion for new trial (§ 1181), challenging the sufficiency of the evidence to support the firearm allegations. The motion was heard and denied on November 7, 2011. Subsequently, the matter was transferred for consolidated sentencing with another criminal case involving appellant. With respect to the convictions in this matter, appellant was sentenced to 12 years in state prison.
After appellant filed a timely notice of appeal, this court appointed counsel to represent him. After examining the record, appointed appellate counsel filed a brief raising no issues, but asking this court to independently review the record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442. (See Smith v. Robbins (2000) 528 U.S. 259, 264.) On October 5, 2012, we sent a letter advising appellant he had 30 days within which to submit by brief or letter any contentions or arguments he wished this court to consider. No reply was received.

Defendants and appellants Martin Weinberg (Weinberg), Robert Philpott (Philpott), Loring Ward International, Ltd. (LW International), SNCB002, Inc. (SNCB002), and Assante Corporation (Assante) (collectively, defendants) appeal an order denying their motions to compel arbitration of a lawsuit filed by plaintiff and respondent Christine Wolf (Christine). [1]
The trial court denied the motions to compel arbitration on the ground “there has been a waiver by moving parties of their right to compel arbitration, due to the six-year delay in requesting arbitration and the extensive, substantive litigation that has proceeded on these very same facts in federal and state court for the past six years.”
The “question of waiver generally is one of fact. [Citation.] As such, the trier of fact’s finding of waiver, if supported by substantial evidence, is binding on this court. [Citation.] ‘ “The appellate court may not reverse the trial court’s finding of waiver unless the record as a matter of law compels finding nonwaiver.” [Citation.]’ [Citation.]” (Roberts v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832, 841 (Roberts).)
We conclude the trial court’s finding of waiver is supported by substantial evidence. Accordingly, the order denying the motions to compel arbitration is affirmed.

Joseph Steven Barron appeals from the judgment following jury trial of his convictions of assault by means of force likely to inflict great bodily injury (Pen. Code, § 245, subd. (a)(1)[1] (assault GBI)), conspiracy to commit assault GBI (§ 182, subd. (a) (conspiracy)), and three counts of battery (§ 242). The jury found the gang benefit allegations true as to the assault GBI and conspiracy (§ 186.22, subd. (b)(1)), and the batteries (id., subd. (d)). The trial court sentenced appellant to five years in prison, including concurrent sentences for assault GBI and conspiracy.[2] Appellant's sole contention on appeal is that by imposing separate sentences for the conspiracy and assault GBI, the trial court ignored the section 654 prohibition against punishing a defendant for crimes which shared the same objectives. We agree and modify the judgment to stay execution of sentence for conspiracy pursuant to section 654.

Plaintiffs Geolin Trading, Inc. (Geolin) and Linda Xiang (Xiang) appeal summary judgment in favor of Kenny Luc, their commercial landlord. Luc leased warehouse premises to plaintiffs which contained a fire sprinkler system that was triggered when the plaintiffs opened a rolling door that hit one of the sprinkler heads, causing extensive flooding of plaintiffs’ inventory. Luc obtained summary judgment on the basis that he had no duty to maintain the premises under the terms of the lease. We reverse with respect to plaintiffs’ claim for negligence.

Christina Wolfenden Woods appeals from a judgment in favor of respondents Heike Thiel and her employer, Ward R. Nyhus, Jr. & Company, on appellant’s complaint for breach of fiduciary duty and negligent infliction of emotional distress. Appellant alleged that respondents breached a fiduciary duty to her by falsely informing her father that she would not comply with his wishes for the disposition of his estate. The trial court granted summary judgment in favor of respondents, finding no such fiduciary duty existed. On appeal, appellant contends she presented evidence sufficient to demonstrate a triable issue of fact as to the existence of a fiduciary duty. Finding no error, we affirm.

Appellant Hector Martin Prieto (Hector) is the brother of defendant Jose Prieto (Jose),[1] and a friend of defendant Jesse Robles (Robles); all three are members of the Barrio 13 street gang. Hector’s appeal is the second appeal arising out of a robbery and triple murder committed, according to Hector in order to raise money to bail the Prieto brothers’ mother out of jail.[2] In a joint trial, a jury found Hector guilty of three counts of first degree murder, one count of second degree robbery and found gang enhancements and special circumstances allegations true. On appeal, Hector contends: (1) There is insufficient credible evidence to sustain the jury’s gang enhancement and special circumstance findings; and (2) The trial court abused its discretion by admitting excessively prejudicial evidence of witness intimidation. We affirm.

In late 2004, appellants were looking for a new home, so they visited a residential community being built by Watt in Inglewood, California, called Traditions at Renaissance. Zelda met with Ada Wolfe, a representative in Watt’s sales office, numerous times between May and October 2005 and explained that appellants wanted a home large enough for Zelda’s mother to live with them. Wolfe gave them an options list to choose options such as cabinetry and appliances for the home.
Zelda testified that Wolfe told them they could purchase Lot 20 for $540,000, but they had to wait for it to come up for sale. Zelda offered to make a deposit on the house, but Wolfe said she could not accept it. Appellants chose the options they wanted and returned the options list to Watt in May 2005, writing “Lot 20” on the list.
Wolfe subsequently told Zelda that Lot 20 had been sold because appellants had not returned Wolfe’s phone call when she called to tell them the house was available. Zelda testified that when she expressed her disappointment to Wolfe, Wolfe promised to get her another house for the same price.

Ajendra Singh was employed by Patrón Spirits International, A.G. (Patron), a producer and distributor of premium tequila. In 2003, Singh was allegedly promised an extraordinary bonus, based on the value of the company, if he remained with the company for an additional five years. In 2008, shortly after the five year period was completed, Singh’s employment was terminated, purportedly for sexual harassment of, and abusive conduct toward, his subordinates. Thereafter, Singh asserted a claim to the promised bonus. Patron brought the instant action for declaratory relief, seeking a declaration that it owes Singh nothing. Singh filed a cross-complaint against Patron and John Paul DeJoria, the Patron officer who allegedly promised him the bonus, for breach of contract and other causes of action. In Singh’s cross-complaint, he sought payment of the bonus.[1]
Patron sought summary judgment on the basis of a statement Singh had made in an unrelated case in 2006. In the course of a dispute regarding the ownership of Patron, Singh submitted a sworn affidavit in which he stated that the promised bonus had been only a possibility, and that no plan to pay him the bonus had ever been formalized. In light of this admission, the trial court granted summary judgment. On appeal, Singh contends that, while this admission may constitute evidence against him to be weighed at trial, it does not justify entry of summary judgment in light of his subsequent declaration and other evidence to the contrary. We conclude that neither the doctrine of judicial estoppel nor the doctrine of D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico) applies to give Singh’s 2006 declaration conclusive effect in this case, and therefore reverse.
In addition, Singh challenges the order of the trial court disqualifying his counsel. Singh’s attorney was disqualified on the basis that he, and his prior law firm, previously represented Patron. As we conclude that Patron has failed to establish that Singh’s chosen counsel was in a position to have obtained confidential information from Patron relevant to this matter, we reverse the disqualification order.

The owners of an unimproved lot in the Castellammare Mesa neighborhood of Pacific Palisades -- a neighborhood governed by a Declaration of Restrictions and Conditions (the DRC), which is enforced by a homeowners association (CMHO) and its architectural committee (the AC) -- sought the approval of plans for the construction of a home on the lot. The AC required the owners, Saied Kashani and his wife, Sanaz Afsar (the Kashanis), to erect “story poles” on the lot to show the outline of the proposed construction, so the AC could determine if the proposed home would unreasonably interfere with the views from the home directly to the east of the Kashanis’ lot. That home is owned by Doreen and Jerry Rochman, as Trustees of the Rochman Family Trust (the Trustees).

A.W. (Mother), mother of one-year-old A.W., petitions this court pursuant to California Rules of Court, rule 8.452, to set aside the juvenile court’s order bypassing reunification services and setting a permanency hearing under Welfare and Institutions Code section 366.26 (section 366.26 hearing).[1] She contends: (1) there was no substantial evidence supporting the finding that she failed to make reasonable efforts to alleviate the problems that led to the removal of A.W.’s sibling, A.A.[2]; and (2) the juvenile court erred in failing to order reunification services because reunification was in A.W.’s best interest. We reject the contentions and deny the petition on the merits.

After defendant admitted that he was in violation of his probation, the trial court revoked probation and imposed an aggregate four-year state prison term. Defendant argues that inclusion of incorrect information in the probation report created bias on the part of the sentencing court. He also contends that revocation of probation was error, as was the imposition of multiple sentences for his two convictions. We conclude that no bias on the part of the court appears in the record, the revocation of probation was not an abuse of discretion, and the imposition of multiple terms for the separate criminal acts was proper. We therefore affirm the judgment.

Eighteen-year-old A.W. appeals from the juvenile court’s jurisdictional and dispositional orders sustaining the allegation that he resisted a peace officer in the discharge of the officer’s duties (Pen. Code, § 148, subd. (a)(1)),[1] and placing him on probation without wardship. He contends the juvenile court should have rejected the allegation because the prosecution failed to establish that the officers were engaged in the performance of their lawful duties. We will affirm.

The trial court denied defendant’s motion to suppress evidence seized during a search of his hotel room. We conclude that the seizure of all of the items from defendant’s room was lawful under the plain view doctrine, and affirm the judgment.

Spencer Alan Thompson appeals from an order denying his request for the appointment of an expert pursuant to Welfare and Institutions Code, section 6605, a provision of the Sexually Violent Predator Act (the SVPA). Thompson contends that the superior court abused its discretion by denying him access to an expert to assist him in attempting to secure his release from an indeterminate commitment under the SVPA. Indeed, according to Thompson, the denial of such a request would virtually always constitute an abuse of discretion because the ready assistance of an expert is essential to protect the due process rights of an individual committed as a Sexually Violent Predator (SVP). We reject these contentions and affirm the order.