CA Unpub Decisions

Defendant and appellant Robert Repka was serving formal probation in two cases (MA0051301 and MA052362) when he was convicted in a third case (MA053321) and sentenced to three concurrent terms in state prison. This appeal involves the imposition of various fines, fees, and assessments, and defendant’s right to custody and conduct credits in the three cases.
We remand the matter for amendment of the abstracts of judgment and minute orders dated January 10, 2012, and otherwise affirm the judgment.

Shaman Haycraft appeals for the judgment entered after a jury convicted him of attempted kidnapping. (Pen. Code, §§ 207, 664.)[1] The trial court granted probation subject to the condition that appellant serve 365 days in a residential dual diagnosis program. We affirm.

A modification decision.

Defendants Shawn Smith and Chakel West were together charged with six counts of robbery (Pen. Code, § 211, counts 1-6).[1] Prior conviction and prison term allegations were alleged against Smith (§§ 1170.12, subds. (a)-(d), 667, subd. (b), 667.5). West was also charged with misdemeanor sexual battery (§ 243.4, subd. (e)(1), count 7). The trial court denied defendants’ motions to be tried separately. West represented himself at trial and testified in his own defense. The jury convicted defendants of all counts, and the trial court found Smith’s prior offense allegations to be true. Smith was sentenced to an aggregate term of 30 years to life in prison, consisting of 25 years to life under the Three Strikes law on count 1, and a five-year serious felony enhancement. He received the same sentence for the other counts, to run concurrently with count 1. West was sentenced to an aggregate prison term of eight years and six months, consisting of the midterm of three years on count 1, with consecutive one-year terms for counts 2 through 6 (consisting of one-third the midterm of three years), with a consecutive six-month sentence on the sexual battery count.
On appeal, Smith contends the trial court failed to instruct the jury, sua sponte, to view West’s testimony with caution; abused its discretion when it denied his motion to sever his trial from West’s trial; and abused its discretion under Romero[2] when it refused to strike one of his prior strike convictions. Defendant West contends the instruction on the robbery count did not properly define “temporary safety.” He also joins in any of Smith’s arguments that may inure to his benefit, but provides no individualized argument or analysis. Finding no merit in any of the above contentions, we affirm.

The trial court revoked appellant Michael Benjamin Rivera’s probation because he had been arrested and held to answer for a new crime. We conclude any error was not prejudicial because two weeks after sentencing appellant pleaded no contest to the new crime, establishing its commission by his plea. Accordingly, we affirm the judgment.

Defendant, Miller-DM Inc., doing business as Mercedes-Benz of Beverly Hills, appeals from a February 27, 2012 order. The February 27, 2012 order was issued after defendant’s third arbitration-related petition or motion was litigated. Defendant’s first petition to compel arbitration sought to compel plaintiff, Josephine Alvarado, to arbitrate her causes of action in her first amended complaint. Defendant’s first petition to compel arbitration was denied. Defendant then filed a second petition to compel arbitration. In its second petition, defendant expressly agreed not to seek arbitration of plaintiff’s class claim under the Consumers Legal Remedies Act (the act). (Civ. Code, § 1750 et seq.) Nearly one year later, defendant filed a third request. This time, defendant sought to compel arbitration of plaintiff’s class claim under the act. This is the precise claim defendant had expressly stated previously that it would not seek to arbitrate. We find defendant expressly waived its right to arbitrate plaintiff’s class claim under the act.

This is an appeal from an order granting a new trial on the ground of juror misconduct. Appellant Edward Zhao contends that the order must be reversed because the trial court exceeded its jurisdiction by departing from the strict statutory procedures governing new trial motions and considering evidence of juror misconduct that was submitted too late. Zhao also contends that even if all of the evidence was properly considered, it is insufficient to support the new trial order. We reject these contentions and affirm the order.

Defendant Deborah Kim King appeals after conviction, by jury trial, of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a).[1]) The trial court found that she had three or more prior convictions of driving under the influence (§ 191.5, subd. (d)) and sentenced her to an indeterminate prison term of 15 years to life.
On appeal, defendant contends the trial court erred by failing to grant a new trial based on newly discovered evidence concerning the prosecution’s toxicology expert. She also contends the trial court erred by failing to grant a mistrial when the toxicology expert mentioned that defendant had marijuana in her system. Finally, she contends the trial court erred by allowing the prosecution to introduce evidence concerning her prior acts of driving under the influence. We will affirm.

Plaintiff Exir Co., Inc. (Exir) appeals from a summary judgment entered in favor of CVC Real Estate Group, Inc. (CVC). Exir, as the buyer of residential real property in Silverado, California, claims the court wrongfully excluded evidence that would have shown real estate broker CVC, as the seller’s broker, failed to perform its duty to make a competent visual inspection of the property, and breached its duty to disclose to Exir that there were facts materially affecting the desirability or value of the property. In particular, Exir claims that CVC failed to disclose there were unabated weeds on the property, and that a fire destroyed the residence less than three weeks after close of escrow because of the weeds.
The summary judgment is affirmed. The undisputed facts show that CVC neither failed to inspect the property nor failed to make a disclosure as required by law. CVC was not required to disclose any weeds on the property, inasmuch as they would have been readily observable by Exir as the purchaser. (Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1518-1520.) Furthermore, the excluded evidence would not have shown that there were unabated weeds on the property at the time of disclosure in any event.

Defendant Travis John Miller was found guilty of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2) as charged in count one of the information. (All further statutory references are to the Penal Code.) But the jury returned a not true finding that defendant personally used a firearm when he committed count one. He was also found guilty of shooting at inhabited dwelling house as charged in count two, and not guilty of attempted murder as charged in count three.
The court sentenced defendant to three years in state prison. He was awarded 440 days of actual custody credits and 220 days for conduct credits.
In his appeal, defendant contends there was insufficient evidence to prove he “did anything to aid and abet the person who fired a shot at the house.” Basically his argument is, since the jury found it not to be true he personally used a firearm, it necessarily decided he was not the perpetrator, and that the guilty verdict means the jury found him guilty on an aiding and abetting theory. He also states he is entitled to additional presentence custody credits pursuant to equal protection principles.
We find sufficient evidence supports the jury’s guilty verdict on counts one and two. We do not reach the decision whether or not there was sufficient evidence to support defendant’s conviction as an aider and abetter since there is sufficient evidence to support his conviction as the perpetrator. We further find he is not entitled to additional presentence custody credits. We affirm.

Defendants Robert Rodriguez, Jr., and Esteban Alvarado were convicted of two counts of first degree robbery in concert and first degree burglary relating to a home invasion robbery at a residence in San Juan Capistrano. Rodriguez asserts he was improperly sentenced to the upper term on one of the robbery counts, an argument which we wholeheartedly reject. Alvarado filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and our review of the record reveals no error. We therefore affirm both defendants’ convictions.

Appellant Fernando Bustos Chavez was charged with kidnapping, kidnapping for ransom, two counts of second degree robbery, unlawfully taking a vehicle, and a “violation of Section 245(a)(1) of the Penal Code (AGGRAVATED ASSAULT), a FELONY.” [1] According to count four in the amended information, Chavez “did willfully and unlawfully commit an assault upon the person of [the victim] by means of force likely to produce great bodily INJURY.” Prior convictions were also alleged. Chavez entered a plea of not guilty.
Chavez was one of three passengers in a Honda stopped at a stop sign when it was hit from behind by a car driven by the victim. The victim, who admitted he had been drinking before the accident, testified that when he got out of his car, he was surrounded by three males, one of whom was Chavez. Chavez hit the victim in the face, injuring him. The men took the victim to his uncle’s house, where they also assaulted the uncle. There was no evidence that a weapon was used.

The parties have filed a joint motion to vacate the judgment entered in the superior court. This is the parties’ second motion to vacate the judgment. We initially denied the motion without prejudice because of the parties’ failure to make more than a pro forma request. The renewed motion is less perfunctory, but still fails to provide enough information to allow us to make an informed judgment to justify reversing or vacating a judgment. (Code Civ. Proc., § 128, subd. (a)(8).) Accordingly, we deny the motion and inform the parties of our intent to dismiss the appeal, which appear to have been rendered moot based on the parties’ settlement agreement and the ensuing dismissal of the underlying action.
I

The court readjudged appellant, Victor M., a ward of the court (Welf. & Inst. Code, § 602) after appellant admitted allegations charging him with receiving stolen property (Pen. Code, § 496, subd. (a)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.