CA Unpub Decisions

Defendant and appellant Timothy Russell Law appeals from his conviction of second degree murder with firearm use enhancements. He contends: (1) there was insufficient evidence of implied malice and (2) the implied malice jury instruction was improper. We affirm.

Following trial to a unified jury, Max Cortes and Kalvin Fox were convicted of attempted murder (Pen. Code, §§ 664, 187, subd. (a))[1] and assault with a deadly weapon, a knife (§ 245, subd. (a)(1)). The jury further found that Cortes personally used a deadly weapon and personally inflicted great bodily injury. (§§ 12022.7, subd. (a), 12022, subd. (b)(1)). The trial court sentenced Cortes to an aggregate term of 10 years in prison; the court sentenced Fox to an aggregate term of five years in prison. Fox and Cortes each filed an appeal, which we address together in this opinion. We affirm the judgment as to Cortes; we reverse the judgment as to Fox.

Alan McTaggart (McTaggart) appeals the denial of his motion for attorney fees against Rusnak Auto Group (Rusnak). We find no error and affirm.

A modification decision.

Plaintiff Dr. Elsagav Shaham (Dr. Shaham) sued defendant Nejat Rostami Medical Group, Inc. (the Medical Group) for breach of contract based on allegations that the Medical Group failed to pay Dr. Shaham for over 300 obstetric deliveries that he performed on the Medical Group's patients over a five-year period. The parties stipulated that if they could not settle the matter to their mutual satisfaction, the trial court would resolve the matter based on briefs submitted by each party. After the parties did not reach a settlement, Dr. Shaham moved to rescind the stipulation. The trial court denied Dr. Shaham's motion and, pursuant to the stipulation, resolved the matter based on the parties' briefs.
The trial court divided the deliveries at issue into three categories: (1) deliveries for which Dr. Shaham could not collect payment from the Medical Group because the four-year statute of limitations had expired on those claims; (2) deliveries for which Dr. Shaham could not collect payment from the Medical Group for reasons unrelated to the statute of limitations; (3) deliveries for which Dr. Shaham was entitled to payment from the Medical Group. For this third category of deliveries, the trial court awarded Dr. Shaham $68,500 in damages and $4,973.29 in interest.
On appeal, Dr. Shaham contends: (1) the trial court improperly denied his motion to rescind the stipulation; (2) the discovery rule tolled the statute of limitations on the first category of deliveries; (3) he is entitled to additional interest for the third category of deliveries; and (4) he is entitled to $9,565 in accounting fees that he paid his daughter during the litigation. Dr. Shaham does not dispute the trial court's ruling on the second category of deliveries. We affirm.

Appellant, a former employee of the respondent, appeals from a judgment of dismissal entered by the superior court after it had sustained, without leave to amend, respondent's demurrer to his second amended complaint (SAC), a complaint alleging wrongful failure to pay him for overtime work. He contends that, for several reasons, the trial court erred in finding his claims to be time-barred. We disagree and hence affirm the judgment of dismissal.

Caicos Investments, Inc. appeals from a judgment entered after a jury trial and an order denying its motion for a new trial. It contends that a prior order sustaining respondent's demurrer to causes of action for negligence per se and negligence was erroneous. It further contends that the court erred in denying its new trial motion on the ground the jury returned inconsistent verdicts on causes of action for trespass and conversion. We will dismiss the appeal as untimely.

Defendant Jesus Rigolberto Guardado appeals a judgment entered upon his plea of no contest to a charge of driving with a blood alcohol level of 0.08 percent or more. He contends on appeal that the clerk's minute order does not accurately reflect the fines and penalties assessed by the trial court. We shall remand the matter to the trial court to clarify its ruling.

Defendant Duane James Bowie, Jr. appeals a judgment entered upon a jury verdict finding him guilty of vehicle theft (Veh. Code, § 10851, subd. (a)); driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)); driving with a blood alcohol level of 0.08 percent of more (Veh. Code, § 23152, subd. (b)); and resisting or obstructing a peace officer (Pen. Code,[1] § 148, (subd. (a)(1)).[2] The trial court found true six prior prison term allegations. (§ 667.5, subd. (b).) Defendant contends the evidence is insufficient to show he suffered all of the prior prison terms. We affirm.

A jury convicted appellant Jeffrey Mason Bell of attempted rape (Pen. Code, § 261, subd. (a)(2))[1] and sexual penetration with a foreign object (§ 289, subd. (a)(1)). Several sentencing enhancements based on Bell's prior felony convictions were found true. Bell's DNA was identified on semen recovered from the victim and from her underwear. Asserting an alibi defense, Bell testified that he was in custody in the Alameda County jail at the time of the offenses. In rebuttal, the prosecution introduced documentary evidence from the jail indicating that Bell was not a county prisoner at the times he claimed. Bell contends that this was error. We affirm.

Defendant Donnell Weaver appeals after his probation was revoked and he was sentenced to prison. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been informed of his right to personally file a supplemental brief, but he has not done so.
Defendant was charged with three counts of unlawful possession of a controlled substance for purchase or sale (Health & Saf. Code, § 11351) (counts one, two, and three) and one count of unlawful possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) (count four). The complaint included three prior conviction allegations. Pursuant to a plea agreement, defendant pled guilty to count one. On December 17, 2008, the trial court suspended imposition of sentence and placed defendant on three years' probation. Among the conditions of probation, defendant was required to submit to being searched by a police or probation officer with or without a warrant or probable cause, and not possess illegal drugs.

On September 21, 2009, defendants Thyochus Huggins and DeShaun Deprice Staunton burglarized a residence on Penitencia Creek Road in San Jose, and a residence on Dorel Drive in San Jose. Defendants also knocked on the front door of a residence on Sweigert Road, walked into the backyard when the owner of the residence chose not to answer the knock because he did not recognize defendants, and fled after the owner yelled at them. The owner called 911. That same day, investigating officers found property stolen from the Penitencia Creek Road and the Dorel Drive residences in Huggins's vehicle, which was parked in the general area of the burglaries. Also located in Huggins's vehicle was a wallet belonging to Staunton and a wallet belonging to Huggins. Property belonging to another victim was found in Huggins's wallet. Huggins was arrested and booked into county jail. Other stolen property and mail belonging to yet another victim were found in Huggins's bedroom. Staunton was located on November 18, 2009, in the Santa Rita jail. He subsequently admitted to investigating officers that he committed the burglaries of the residences on Penitencia Creek Road and Doral Drive with Huggins, and that they had trespassed on and attempted to enter the Sweigert Road residence.[1]

In mid-July 2009, Orange County prosecutors filed a criminal complaint against Desaray Monique Simmsdavis based on an arrest warrant issued by a Clark County Nevada court. A felony arraignment was scheduled for August 5, 2009. Apparently Simmsdavis had been arrested prior to August 5, because, on August 4, Safety National Casualty Company filed a bail bond for $50,000 allowing her release.
On August 5, Simmsdavis did not appear at the August 5 felony arraignment, though her mother did. Simmsdavis was represented by the public defender's office. The deputy public defender told the court that Simmsdavis had been â€

Appellant was sentenced to 280 years to life in prison for committing numerous sex crimes against three young girls. He does not challenge the underlying validity of his convictions but rather claims that, as to one of the victims, there is insufficient evidence to support the jury's finding he personally used a dangerous or deadly weapon during some of the crimes he committed against her. Finding this claim meritorious, we will reverse the jury's weapon-use finding on four of the counts of which appellant was convicted. Due to an undisputed sentencing error, we will also remand the matter for resentencing. In all other respects, we affirm.