CA Unpub Decisions

In 2007, the City of Cathedral City (the City) terminated the employment of a police officer, Thomas Ferguson (Ferguson), after he had been arrested in 2006 for soliciting a prostitute and charged with violating Penal Code section 647, subdivision (b).
Ferguson appeals from a judgment denying his petition for writ of mandate (Code Civ. Proc., §§ 1085, 1094.5) in which he sought to reverse the termination of his employment.
The issue on appeal concerns the validity and enforceability of a settlement agreement between Ferguson and the City. We conclude that Ferguson repudiated the agreement and the City properly elected to treat the repudiation as a breach of the agreement, entitling the City to reinstate Ferguson's discharge.

In February 2006, defendant and appellant Frankie James Molina pled guilty to one count of forgery. (Pen. Code, § 470, subd. (d).)[1] The trial court placed him on probation for three years. Subsequently, defendant admitted that he violated his probation. In May 2010, the trial court sentenced him to two years in state prison and awarded him a total of 565 days of presentence custody credits.
On appeal, defendant raises the sole contention that he is entitled to additional presentence custody credits under the amendment to section 4019, which went into effect on January 25, 2010. [2] While this court has held in other cases that the January 25, 2010 amendment to the conduct credits provision is not retroactive, defendant here was not sentenced until after the effective date of the amendment and, thus, the case does not involve retroactivity, as such. The amended statute was in effect at the time of defendant's sentence and, thus, he should have received credits under that amendment. We therefore modify and affirm the judgment.

A jury found defendant and appellant James Leon Small guilty of one count of rape of a child under the age of 14, and 10 or more years younger than defendant (Pen. Code, § 269, subd. (a)(1); count 1);[1] one count of a lewd act on a child under the age of 14 by force, fear, duress, or menace (§ 288, subd. (b)(1); count 2); three counts of a lewd act on a child under the age of 14 (§ 288, subd. (a); counts 3-5); and five counts of a lewd act on a child under the age of 16 while being 10 years older (§ 288, subd. (c)(1); counts 6-10). In a bifurcated proceeding, defendant admitted that he had suffered one prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to a total determinate term of 24 years 4 months and a total indeterminate term of 15 years to life in state prison. Defendant's sole contention on appeal is that the trial court erred in denying his motion for a mistrial. We reject this contention and affirm the judgment.

On August 2, 2009, defendant Anthony Preciado got angry with Michael Brown for what he perceived was flirtatious behavior with defendant's girlfriend. He followed Brown in his car and threw a beer bottle at him that just missed him. Defendant then drove his car at a high rate of speed at Brown, almost hitting him.
Defendant was found guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))[1] for almost hitting Brown with his automobile and of the lesser offense of simple assault (§ 240) for throwing the beer bottle. He was sentenced to three years in state prison.
Defendant now claims as follows:
1. The trial court committed prejudicial error when it excluded evidence of a prior juvenile petty theft arrest to impeach one of the People's witnesses.
2. The trial court erroneously gave a flight instruction (CALCRIM No. 372) to the jury, which was not supported by the evidence.
3. A booking fee under Government Code section 29550 and a presentence probation report fee under Penal Code section 1203.1b were improperly imposed because the trial court failed to determine defendant's ability to pay the fees.
4. This court should strike the no-contact order for defendant to not contact Brown, since defendant was sentenced to state prison.
We affirm the judgment but reverse the no-contact order.

Jeff Gerhart, a horse trainer, leased part of a ranch owned by Mary Elizabeth Piazza and operated by her adult daughter, Michel Ann Walters. During the first two years of his three-year lease, Gerhart had access to the arena, hot walkers, wash racks, and cross ties -- vital necessities of any horse-training business -- which were located in a common area and shared by all of the occupants of the ranch. Early in the third year, however, Walters put up barriers between his premises and the common area and forbade him to use the common area. This interfered with the operation of his business and caused him to lose customers. Walters told him, however, she would sue him if he left, so he stayed at the ranch until the lease was up.
According to Piazza and Walters, Gerhart was hostile; aggressive; and, on one occasion, violent toward their other tenants and those tenants' clients. They put up the barriers as a last-ditch measure to stop him from driving the other tenants away. According to Gerhart, however, they had it in for him after he refused their demand that he pay more rent than the lease called for. The problem worsened after Walters hired a new ranch manager, Greta Hitzeman,[1] who also had it in for him.
A jury found in favor of Gerhart, awarding him $5,200 for breach of contract, plus $45,000 for negligent interference with prospective economic advantage. In addition, in connection with an incident in which loose dogs at the ranch caused Gerhart to be thrown from a horse and injured, they awarded him $55,000 for negligence. (The trial court later reduced this amount to $30,000.)
Appellants contend:
1. The trial court erred by excluding hearsay statements by other tenants of the ranch to the effect that they were leaving the ranch because of Gerhart.
2. Gerhart's counsel committed prejudicial misconduct by repeatedly addressing his client as â€

Refugio Hernandez appeals a judgment following his jury conviction of one count of possession of marijuana for sale (Health & Saf. Code, § 11359) and one count of attempted transportation of marijuana (Health & Saf. Code, § 11360). On appeal, he contends: (1) the trial court erred by denying his Penal Code section 1538.5 motion to suppress evidence of marijuana seized from a trailer in violation of his right against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution; (2) the trial court erred by denying his motion to exclude test results of samples taken from packages without a sufficient showing of chain of custody; (3) the evidence is insufficient to support findings he was guilty of the charged offenses; and (4) the trial court abused its discretion by imposing a three-year upper term for his conviction of possession of marijuana for sale.

Five-year-old Matteo Wright (Matteo) fell 12 to 15 feet to his death after his father, plaintiff James Gill Wright (Wright), suspended him by a homemade harness attached to a gantry crane for an â€

This appeal arises from a declaratory relief action in which appellant Golden West Nuts, Inc. (Golden West) sought judicial confirmation that it had paid the correct contract price for almonds grown by respondents Willadsen Orchards, Inc., and related entities (collectively, Willadsen).[1] The trial court sustained Willadsen's demurrer without leave to amend because there was no ongoing relationship between the parties that warranted declaratory relief.
On appeal, Golden West contends the trial court erred in dismissing a case that involves an actual controversy between the parties. Golden West further argues that the trial court's award of attorney fees to Willadsen as prevailing party must be reversed.
We affirm the judgment of dismissal and the order awarding attorney fees.

Defendant Vernon Lee Belton, Jr., armed with a handgun and accompanied by two other men, committed a home invasion robbery in North Sacramento. Finding the victim alone in her bedroom, defendant struck her in the head with the handgun and then raped and attempted to sodomize her.
Defendant was convicted of first degree burglary, first degree robbery, attempted sodomy, assault with intent to commit sodomy, and two counts of forcible rape. The jury also found that defendant personally used a firearm during the commission of these offenses, and that he raped the victim during the commission of a burglary. The trial court sentenced defendant to state prison for an indeterminate term of 25 years to life, plus a consecutive determinate term of 21 years four months, and imposed other orders.

Following a negotiated disposition in Santa Clara County Superior Court case No. CC952932, Matthew Moreno (defendant) appeals from his conviction of one count of attempted murder (Pen. Code, §§ 664/187) and one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).

Defendant Raymond Eduardo Lopez was convicted by jury trial of first degree murder (Pen. Code, §§ 187, 189), and the jury found true that he had personally used a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)) in the commission of the murder. On appeal, he (1) challenges the sufficiency of the evidence of premeditation and deliberation, (2) claims that the court erred in responding to jury inquiries regarding premeditation and deliberation, (3) asserts that the prosecutor committed prejudicial misconduct, and (4) maintains that the trial court made numerous prejudicial instructional errors. Although we conclude that the trial court made two instructional errors, we conclude that defendant was not prejudiced by these errors individually or cumulatively. Therefore, we affirm the judgment.

A jury convicted defendant Moises Cabrera of all three counts with which he was charged: murder (Pen. Code, § 187, subd. (a));[1] attempted premeditated and deliberate murder (§§ 187, subd. (a), 664, subd. (a)); and street terrorism (§ 187.22, subd. (a).) As to the murder conviction (count 1), the jury found true the street gang special circumstance (§ 190.2, subd. (a)(22)). The jury also found several charged enhancements to be true. The court sentenced defendant to state prison for life without the possibility of parole for murder (count 1). The court also sentenced defendant to a consecutive sentence of 50 years to life based on the attempted murder conviction (count 2) and various enhancements. As to the street terrorism conviction (count 3), the court imposed the middle term of two years but stayed execution of sentence pursuant to section 654.
Defendant asserts there is insufficient evidence to support his conviction of street terrorism (count 3) and the jury's finding of the street gang special circumstance with regard to his murder conviction (count 1). We affirm the judgment.

Steven William Barton appeals from a judgment after a jury convicted him of assault with intent to commit rape, first degree burglary with a non-accomplice present, assault with force likely to produce great bodily injury, and sexual battery by restraint, and found true he inflicted great bodily injury. Barton argues the search warrant affidavit lacked probable cause to search his laptop computer recovered from his truck found near the crime scene, the trial court erroneously admitted evidence recovered from his truck and laptop computer, and the court erroneously failed to stay the sentence for assault with force likely to produce great bodily injury. None of his contentions have merit, and we affirm the judgment.
After appellate briefing was complete, Barton submitted a motion for substitution of appellate counsel. As we explain below, the motion is meritless, and we deny that motion.

This derivative action comes to us after a demurrer was sustained without leave to amend because of lack of specificity in the allegations of demand futility and because of failure to state causes of action against individual directors and officers. In addition, the shareholder-appellants appeal from the trial court's refusal to permit them to conduct the discovery they claim is necessary to establish demand futility.