CA Unpub Decisions

In the early morning hours of June 7, 2008, defendant James Washington and an acquaintance, Frank Abella, killed a mentally and physically handicapped man as he sat outside a 7-Eleven store sipping coffee. Tried separately, defendant was convicted of murder ( ADDIN BA xc <@st> xl 27 s AVNBZS000004 xpl 1 l "Pen. Code, § 187, subd. (a)" Pen. Code, § 187, subd. (a); further undesignated section references are to the ADDIN BA xc <@ost> xl 10 s AVNBZS000037 xpl 1 l "Penal Code" Penal Code), robbery ( ADDIN BA xc <@osdv> xl 5 s AVNBZS000038 xpl 1 l "§ 211" § 211), and torture ( ADDIN BA xc <@osdv> xl 5 s AVNBZS000039 xpl 1 l "§ 206" § 206). The jury also found defendant used a deadly weapon in connection with the murder and torture ( "§ 12022, subd. (b)(1)" § 12022, subd. (b)(1)) and the murder occurred during the commission of the robbery ( "§ 190.2, subd. (a)(17)(A)" § 190.2, subd. (a)(17)(A)). Defendant was sentenced for the murder to life without the possibility of parole (LWOP), while sentence on the other offenses was stayed with the exception of a one-year enhancement.

On March 23, 2011, defendant and appellant Aaron Victor Stathum and a codefendant robbed the manager of a recycling company of $120,000. Stathum and his codefendant were charged with second degree robbery (Pen. Code, § 211) with an allegation that the amount taken exceeded $65,000 (Pen. Code, § 12022.6, subd. (a)(1)). A prior conviction in 1996 for robbery was charged as a prior strike and a prior serious felony conviction. (Pen. Code, §§ 667, subd. (a)(1), 1170.12.)
On May 1, 2012, pursuant to a waiver of his trial rights, defendant entered a guilty plea to the robbery charge and admitted the Penal Code section 12022.6, subdivision (a)(1) allegation and prior conviction allegations. At sentencing on June 26, 2012, the court struck the prior strike and the Penal Code section 12022.6, subdivision (a)(1) allegations and imposed the three-year midterm for the robbery and a five-year enhancement for the prior serious felony conviction for an aggregate sentence of state prison for eight years.

The trial court abused its discretion in denying defendant Steve Launer’s (Launer) Pitchess[1] motion, because Launer showed good cause for an in camera inspection of Los Angeles Police Department Detective Daniel Wise’s (Wise) confidential personnel records.[2] Accordingly, the petition is granted.

Defendant and appellant Gloria Lynne Bryson appeals from the judgment entered following jury trial which resulted in her conviction of two counts of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)),[1] sexual penetration by a foreign object on a child under the age of 14 years and more than 10 years younger than the defendant (§ 289, subd. (j)), continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a)), and the aggravated sexual assault of a child under the age of 14 years and who is seven or more years younger than the defendant (§ 269, subd. (a)(5)). The trial court sentenced Bryson to 37 years to life in prison.[2] We affirm.

Jennifer M. (Jennifer) is the maternal grandmother of Madison E. (minor). Matthew M. (Matthew) is married to Jennifer and is the minor’s maternal step-grandfather. Jennifer and Matthew (grandparents) appeal the order of the juvenile court terminating their legal guardianship over the minor and returning her to the custody of Tara W. (mother).
We find no error and affirm.

Plaintiff Kerry White appeals the trial court’s denial of his motion to certify a class made up of all consumers who received $25 gift cards from defendant Hollister Company as part of a 2009 holiday promotion, but did not redeem the gift cards before the cards expired on January 30, 2010. Plaintiff contends that because the gift cards did not say that they expired, defendant’s failure to honor them after January 30, 2010, violated Civil Code section 1749.5 and the Consumers Legal Remedies Act (Civ. Code, § 1770 et seq.; CLRA).[1] Plaintiff further contends that the case is appropriate for class treatment and, therefore, the trial court abused its discretion by denying his motion for class certification. We agree with plaintiff in part, and thus we reverse with directions to the trial court to certify a subset of the proposed plaintiff class.

On May 27, 2010, appellant Cornelius Draper, armed with a gun, confronted Miguel Deisita and demanded that he give him his cell phone and car. Deisita refused to hand over the phone but moved away from his car. Appellant got in the car and drove away. He was later chased by police, but escaped. He was eventually arrested.

Defendant Joshua Lopez and Raquel A. (Raquel) were friends and members of the same tagging crew, an association of graffiti writers. On January 7, 2010, defendant sent Raquel a text message inviting her to come smoke marijuana with him. They went first to a motel in Los Angeles, and Raquel waited outside while defendant went in. When he returned, he said the rooms were too expensive. The pair then went to a secluded stairwell in the Mira Vista Projects. When defendant attempted to kiss Raquel, she leaned back and turned her face away. Defendant, who was much larger than Raquel, pinned her down and removed her pants. He inserted his erect penis into her vagina, causing her severe pain, and had rough intercourse with her. After approximately two to three minutes he withdrew, tried to turn her over, and licked her vagina. He then reinserted his penis into her vagina and repeated the rough intercourse for approximately one minute more.

Bret Casady (Casady), the appellant, was ordered to arbitrate his disputes against The Waffle, LLC (The Waffle), Gavin Polone (Polone) and John Papsidera (Papsidera) (collectively The Waffle Parties). Casady refused to pay a share of the arbitrator’s fee and the arbitration was dismissed. The trial court denied Casady’s request to restore his civil action, and his subsequent request to order that the dismissed arbitration be recommenced. Casady appeals from each of the trial court’s orders. Upon review, we find no error and affirm.

In this joint appeal by Thomas Stringer, Jr., (Stringer) and Jimmy McCallum (McCallum) (collectively “appellants”),[1] Stringer appeals from six counts of second degree robbery (Pen. Code, § 211, counts 1-3, 5, 16 & 17),[2] seven counts of kidnapping to commit a robbery (§ 209, subd. (b)(1), counts 7-12 & 15) and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 13). The jury found to be true as to Stringer the gang allegations within the meaning of section 186.22, subdivision (b)(1)(A) as to count 13, and section 186.22, subdivision (b)(1)(C) as to counts 1 through 3, 5, 7 through 12 and 15 through 17, the personal and intentional use of a firearm allegation within the meaning of section 12022.53, subdivision (b), as to counts 3, 5 and 9 through 12, and the principal armed with a firearm in the commission of a gang offense allegation within the meaning of section 12022.53, subdivisions (b) and (e)(1) as to counts 3, 5, 9 through 12, and 15 through 17.
McCallum appeals from seven counts of second degree robbery (counts 3, 5, 18, 19, 21, 23 & 25), seven counts of kidnapping to commit robbery (counts 9-12, 20, 22 & 24), and one count of being a felon in possession of a firearm (count 26).[3] The jury found to be true as to McCallum the gang allegations within the meaning of section 186.22, subdivision (b)(1)(A) as to count 26 and section 186.22, subdivision (b)(1)(C) as to counts 3, 5, 9 through 12 and 18 through 25, the personal and intentional use of a firearm allegation within the meaning of section 12022.53, subdivision (b) as to counts 20 through 25, a principal armed with a firearm in the commission of a gang offense allegation within the meaning of section 12022.53, subdivisions (b) and (e)(1) as to counts 3, 5, 9 through 12 and 20 through 25, and the personal use of a deadly or dangerous weapon allegation within the meaning of section 12022, subdivision (b)(1) as to counts 18 and 19.
The trial court sentenced Stringer to an aggregate state prison term of 105 years to life consecutive to a determinate term of 55 years and McCallum to a term of 135 years to life consecutive to a determinate term of 17 years four months.

Plaintiff and appellant Vince Flaherty appeals from the requirement and amount of the bond ordered as part of a preliminary injunction issued in his favor to halt a foreclosure by the bank.[1] Specifically, Flaherty contends that the trial court erred by granting his application for issuance of a preliminary injunction on the condition that he post a $433,000 undertaking with the trial court, failing to hold a hearing on whether he was required to post an injunction bond, denying his request to file a reply to the opposition to his motion for reconsideration, and setting the hearing on his motion for reconsideration contesting the required undertaking on a date that he was obligated to appear in another courtroom on another matter.
We hold that the trial court did not err by requiring Flaherty to post the bond, but the trial court did err in calculating the amount of undertaking based on Flaherty’s alleged past amounts due. We do not reach Flaherty’s other contentions. We remand the matter to the trial court to reconsider the amount of the bond, taking into account the proper criteria.

A modification decision.

Petitioner Warren Morris received 22 citations for violating local ordinances and, in accordance with Penal Code section 853.5, subdivision (a), signed promises to appear in court for each of the infractions. He subsequently failed to appear for any of his different citations. Respondent, the San Francisco Superior Court, issued warrants for his arrest, he was arrested and held for arraignment. When the district attorney declined to pursue the charges, respondent court issued an order to show cause (OSC) requiring petitioner to show why he should not be held in contempt of court for failing to appear on the citations. Petitioner ultimately pleaded no contest to the contempt violations claiming he did so only after the court told him he would be in custody for three weeks until a hearing could be held on the OSC. He contends in this petition[2] his failures to appear do not constitute “[d]isobedience of any lawful judgment, order, or process of the court” or “[a]ny other unlawful interference with the process or proceedings of a court” within the meaning of Code of Civil Procedure section 1209, subdivision (a)(5)and (9).[3] We agree and annul the contempt violations.
At the outset, we note the superior court has appeared in this case, at our invitation. “[W]hile nominally the respondent in a writ proceeding, the superior court ordinarily is a neutral party, with a duty to remain impartial. [Citations.] Exceptions to this principle are infrequent, generally involving rulings as to which real party in interest ‘is not a real adverse party, has suffered no harm, or has no interest in the writ proceeding.’ [Citation.] The superior court also properly appears where its direct operating procedures are challenged.” (Gressett v. Superior Court (2010) 185 Cal.App.4th 114, 117–118, fn. 3.)[4] It is undisputed the district attorney elected not to prosecute petitioner’s failures to appear on the infraction notices (Pen. Code, § 853.7), and the superior court issued a contempt OSC pursuant to its standard operating procedures. Thus the court has appropriately appeared.

We appointed counsel to represent Christopher Paul Shore on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court no issues were found to argue on his behalf. Shore was given 30 days to file written argument on his own behalf. Shore subsequently filed a brief with this court.