CA Unpub Decisions

On January 26, 2007, defendant and appellant Anthony Ray Ivey, Jr., pled guilty pursuant to a plea agreement to one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)[1] That same day, defendant was sentenced to probation for a period of three years under specified conditions. On October 23, 2009, the trial court found that defendant violated term No. 3, and his probation was revoked. Defendant agreed to waive his section 4019 conduct credits, and was sentenced to 365 days in county jail, with credit for 238 days served. Defendant filed a notice of appeal following his sentencing. Court affirm.

A jury found defendant and appellant Robert Richard Frescas guilty of aggravated sexual assault of a child under 14 years of age and 10 or more years younger than defendant (Pen. Code, §§ 269, subd. (a)(5), 289, subd. (a))[1] (count 1) and attempted forcible sexual penetration (§§ 664, 289, subd. (a)(1)), a lesser included offense of aggravated sexual assault (§§ 269, subd. (a)(5), 289, subd. (a)) as alleged in count 2. Defendant was sentenced to a determinate upper term of four years on count 2 and an indeterminate term of 15 years to life on count 1 with credit for time served. On appeal, defendant contends (1) the imposition of the upper term on count 2 based on facts not found by a jury beyond a reasonable doubt violated his Sixth Amendment right to a jury trial; and (2) the trial court improperly relied on the victim's young age in imposing the upper term on count 2. Court reject these contentions and affirm the judgment.

On June 6, 2008, a first amended information charged defendant and appellant Justin Learmont with premeditated, attempted murder on Patrick Gardner under Penal Code[1] sections 664, and 187, subdivision (a) (count 1); assault with a firearm on Cliffton Fenoff under section 245, subdivision (a)(2) (count 2); and assault with a deadly weapon on Patrick Gardner under section 245, subdivision (a)(1) (count 3). The information also alleged that, in the commission of counts 1 and 2, defendant personally used a firearm within the meaning of sections 12022.53, subdivisions (b), (c) and (d) (count 1), and 12022.5, subdivision (a) (counts 1 & 2).
On August 22, 2008, the trial court granted defendant's motion under section 995 to dismiss count 3. On December 8, 2009, defendant pleaded guilty to attempted murder without the premeditation finding under sections 664 and 187, subdivision (a) (count 1), and assault with a firearm under section 245, subdivision (a)(2) (count 2). Defendant also admitted that he personally discharged a firearm causing great bodily injury in the commission of count 1 under section 12022.53, subdivision (d). As part of the plea agreement, defendant entered in a waiver under People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas waiver).

Defendant and appellant Lanial Davon Brown appeals from a guilty plea to one felony count of burglary in violation of Penal Code section 459. Court affirm.

On September 5, 2007, defendant and appellant Roger Gonzalez Alba pled guilty to one felony count of second degree commercial burglary under Penal Code[1] section 459. Under the terms of the plea agreement, defendant would be placed on three years of formal probation, instead of being sentenced to state prison. On October 4, 2007, defendant was sentenced to 180 days in jail, with credit for time served, followed by three years of formal probation.
Two years later, on October 28, 2009, defendant failed to appear at a probation review hearing. The court, therefore, revoked defendant's probation. Thereafter, defendant requested a hearing under People v. Vickers (1972) 8 Cal.3d 451 (Vickers). At the Vickers hearing on May 10, 2010, after the trial court considered the evidence and heard legal arguments, the court found that defendant had violated probation term Nos. 2 and 4. The court sentenced defendant to serve one year four months in state prison, the low term for second degree burglary.
On May 13, 2010, defendant filed a timely notice of appeal.

On January 9, 2007, defendant and appellant Tony Armond Simms pleaded guilty to two counts of robbery (Pen. Code, § 211)[1] and admitted that in both counts a principal was armed with a handgun (§ 12022, subd. (a)(1)). He also admitted that he had suffered one prior serious felony conviction (§ 667, subd. (a)) and three prior strike convictions (§§ 667, subds. (c)-(e)(2)(A), 1170.12, subd. (c)(2)(A)). After the trial court denied defendant's motion to dismiss his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, he was sentenced to a total term of 27 years to life.

On June 17, 2008, the Kern County District Attorney filed an information in superior court charging defendant Carl Lafayette Lomax as follows:
Count 1--unlawful possession of a firearm by a felon previously convicted of a violent felony (voluntary manslaughter) (Pen. Code, § 12021.1, subd. (a));
Count 2 unlawful possession of a firearm by a felon (§ 12021, subd. (a)(1);
Count 3--unlawful possession of a loaded firearm by an active member of a criminal street gang (§ 12031, subd. (a)(2)(C)); and Count 4--unlawful carrying of a loaded firearm, not registered to him, in a public place or street (§ 12031, subd. (a)(2)(F)).

Who must pay for the defense of a lawsuit alleging breach of fiduciary duty, fraud, and malpractice against an attorney and his former law firm (which self insured against the first $500,000 of any professional liability claim and defense thereof)? Here, the trial court found: (1) appellant Robert D. Fish (Fish), a former partner at respondent Rutan and Tucker LLP (Rutan), was not entitled to indemnification from Rutan for Fish's defense costs; and (2) Fish was obligated to indemnify Rutan for its defense costs. There is substantial evidence supporting the court's factual finding that Fish engaged in willful misconduct in connection with the claims, thereby obligating Fish under the Rutan partnership agreement to indemnify Rutan. Court affirm the judgment.

Shaun Salas was involved in an automobile accident, while driving a vehicle owned by his father, Gilbert Salas. (To avoid confusion, we will refer to the members of the Salas family by their first names; we intend no disrespect.) Shaun's automobile insurance carrier, Mercury Insurance Company (Mercury), denied coverage for the accident on the ground Gilbert's car was not covered under the terms of the policy. Shaun sued for tortious breach of the insurance policy. The trial court granted a motion for summary adjudication in favor of Mercury of Shaun's bad faith claim. Following a bench trial, the court found Mercury had breached the insurance contract, and awarded damages to Shaun and Gilbert. Shaun appealed, and Mercury cross‑appealed.
We conclude the trial court did not err in granting the motion for summary adjudication. Because Shaun's two claims--breach of contract and bad faith--were combined in one cause of action, the court could properly grant summary adjudication of the bad faith claim. A genuine dispute as to coverage was established by Mercury, and the court properly determined Shaun could not state a claim for bad faith on the part of Mercury.
We further conclude the trial court did not err by denying Shaun's motion to amend the complaint to add the bad faith claim back into the complaint immediately before trial.

Juan Manuel Arriaga appeals from a judgment after a jury convicted him of two counts of oral copulation with a child under 14 years of age. Arriaga argues the trial court erroneously admitted a photograph of his penis because it was unduly prejudicial. His contention has no merit, and Court affirm the judgment.

Kevin Almudai worked for Dealer Services Corporation (DSC) as the manager of its San Jose branch office, which opened in mid-2006. DSC's business is borrowing money from large financial institutions and, in turn, lending it to car dealers for the purchase of inventory, which secures the loans. Almudai contends that DSC failed to pay him incentive branch bonuses owed to him for the calendar years 2006 and 2007. DSC bonuses are paid according to a company bonus plan, as generally described in written documents provided to Almudai in 2006 and 2007. The plan contemplates applying certain formulas for determining whether a branch bonus is due for a given year and, if so, its amount. But in order for a manager to be eligible for a branch bonus in any year, the branch had to meet 80 percent of its annual earnings goal, as adjusted, and the loan write-offs attributed to that branch had to total less than four percent of the branch's average accounts receivable over the calendar year.

On December 7, 2008, Melanie[2] arranged to meet her friend Javier at the Los Gatos Creek trail. Melanie arrived at the trail between 6 and 6:30 p.m. Melanie and Javier consumed a bottle of Peppermint Schnapps and some wine. Javier's brother and his girlfriend arrived about half an hour after Javier and Melanie.
Later, defendant arrived with some marijuana. According to Javier they all smoked the marijuana.[3] At some point Melanie blacked out. The next thing that she remembered was waking up and her friends were gone. The defendant told her that they had left, but they had paid him $20 to have sex with her. Melanie told the defendant that she wanted to go home and did not want to have sex with him.
As Melanie tried to get up she still felt drunk; the defendant pushed her down. Melanie tried to resist, but defendant told her " 'You don't want to do that.' " The next thing that Melanie remembered was the defendant taking off her pants and underwear. Melanie told defendant " 'No' " and ' 'You don't have to do this.' " Melanie tried pushing defendant away, but he orally copulated her. When she started to cry, defendant told her to be quiet. Melanie was scared that she might be beaten or defendant might kill her.
After he orally copulated Melanie, defendant pulled down his pants and inserted his penis in her vagina. Melanie told him " 'No.' " Defendant told her to "shut up." After defendant ejaculated he orally copulated her again and had sex with her for a second time. By now Melanie felt numb and began to "emotionally and physically shut[] down." Defendant orally copulated Melanie for a third time. Defendant asked Melanie to spend the night with him, but she refused. Melanie became aggressive toward him and defendant "gave up."
However, as defendant and Melanie were lying on the ground, defendant pulled down her pants again and sodomized Melanie as she tried to fight him. Subsequently, they both fell asleep. Melanie was awakened by the defendant about 7:30 a.m.; he asked her if she was going to go home.

Defendant Robert Harold Brown appeals from a judgment of conviction following his no contest plea to forging a driver's license and checks. Counsel for defendant has filed an opening brief that states the case and facts but raises no issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant, as he is entitled to do, filed his own letter brief. We have, as required by Wende and People v. Kelly (2006) 40 Cal.4th 106, 110, 124, set forth herein the facts, the procedural background (including a description of the crimes of which defendant was convicted), and the disposition of defendant's case; reviewed the entire relevant record; and considered defendant's arguments.
Court affirm the judgment.

James Pablo Patterson appeals from a judgment entered after a jury convicted him on three counts of second degree robbery. (Pen. Code, § 211.)[1] He contends his conviction must be reversed because (1) the trial court erred when it admitted evidence of his prior contacts with the police, (2) the court erred when it admitted evidence that he committed an uncharged robbery, (3) the court erred when it refused to sever the trial of one of the counts that had been charged, and (4) he received ineffective assistance of counsel. Court conclude no prejudicial errors were committed at appellant's trial and will affirm.