CA Unpub Decisions

Defendant Oscar Gonzalez was charged with one count of attempted willful and premeditated murder (Pen. Code, 187, subd. (a), 664; all further statutory references are to this code unless otherwise specified; count 1) and one count of kidnapping ( 207, subd. (a); count 2). A jury convicted him of count 2 but was unable to reach a verdict on the attempted murder count. After a second trial defendant was convicted of attempted murder as charged. He was sentenced to seven years to life on count 1 and a consecutive five years on count 2.
He appeals on several grounds: 1) A violation of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]); 2) erroneous exclusion and admission of evidence; and 3) instructional error. We find no error and affirm.

Appellant was charged by felony complaint with one count of check forgery (Pen. Code, 470, subd. (d)), committed on December 20, 2007. Pursuant to a negotiated disposition, appellant entered a no contest plea and executed a written waiver of his rights. On February 13, 2009, the court suspended imposition of sentence and placed appellant on three years formal probation. The court ordered victim restitution in the amount of $4,219. Thereafter, appellant contested the victim restitution order. At a formal restitution hearing, held on June 15, 2009, the court found that the amount of restitution owed the victim was $4,224. Accordingly, the court denied appellant's motion to reduce the restitution amount and set restitution at $4224 ($4219, the amount of the check plus the $5 check fee). Appellant filed a notice of appeal.

Rico T., a minor, appeals an order of the juvenile court requiring him to pay restitution to the victim of his admitted crimes, felony assault with force likely to cause great bodily injury in violation of Penal Code section 245, subdivision (a)(1), and misdemeanor petty theft in violation of Penal Code section 484/488. He challenges the award to the extent it directed restitution in the amount of $2,520 for the victims lost income. This amount related to two weeks of missed work some five months after the assault but the victim claimed this loss to be on account of injuries flowing from it. The minor contends that this aspect of the restitution award is unjustified as speculative and unrelated to the victims losses incurred as a direct result of the crimes. Court reject these claims and affirm the order.

Petitioner S.E. (mother) seeks a writ of mandate to reverse an order of the Santa Clara County Juvenile Court denying her request for a contested hearing on the resumption of reunification services and setting a hearing under Welfare and Institutions Code section 366.26. ( 366.26, subd. (l); Cal. Rules of Ct., rule 8.452.) Mother claims the court abused its discretion in denying a contested hearing and in failing to consider all permanency planning options. Court deny the petition.

Appellant Paul Barrier was charged with felony possession of a short-barreled shotgun (Pen. Code, 12020, subd. (a)(1)),[1]possession of a billy club ( 12020, subd. (a)(1)), cultivating marijuana (Health & Saf. Code, 11358), and exhibiting a deadly weapon ( 417, subd. (a)(1)). Following a jury trial in which Barrier was self-represented, he was found guilty of possession of the short-barreled shotgun and not guilty of the other charges.
Barrier contends that he is entitled to possess the short-barreled shotgun under the Second Amendment and that his conviction for possession of that weapon must therefore be reversed. He also alleges that the trial court erred by not revisiting its decision to permit him to waive counsel and represent himself (Faretta v.California (1975) 422 U.S. 806), and that the court further erred in declining to reduce his felony conviction to a misdemeanor offense pursuant to section 17. We affirm.

Following a settlement of her medical malpractice claims, the trial court granted a lien to plaintiff Veronica Noskevichs former attorneys in the amount of $23,061.77, to be paid out of the settlement proceeds. She appeals from the granting of the lien. Finding the trial court erred in determining that the former attorneys motion to withdraw from the case was mandatory, Court reverse the orders enforcing payment of the lien.

In an amended information filed on August 31, 2007, by the Los Angeles County District Attorney, appellant, Hector Orozco (Orozco), was charged with two counts of violation of the California Penal Code and one count of violation of the California Vehicle Code.[1] Count 1 alleged a violation of section 215, subdivision (a), carjacking; count 3 alleged a violation of Vehicle Code section 2800.2, evading an officer with willful wanton disregard for the safety of persons and property; count 4 alleged a violation of section 12021, subdivision (a)(l), possession of a firearm by a felon; and five priors.[2] As to count 1, it was alleged that Orozco personally used a firearm, a handgun, within the meaning of section 12022.53, subdivision (b) and that he suffered a serious felony prior conviction under section 667, subdivision (a)(1). As to all three counts, it was also alleged Orozco suffered six prior convictions under section 1170.12, subdivisions (a)-(d) and section 667, subdivisions (b) through (i). Orozco entered a plea of not guilty and asked for a jury trial.

Plaintiff and appellant Clive Cussler, a widely read novelist, entered into a contract with defendant and respondent Crusader Entertainment, LLC (Crusader), a film producer. Under the contract, if certain conditions were satisfied, Crusader had the option of purchasing certain Clive Cussler books for the purpose of producing films. Crusader exercised its initial option and produced a film based on the novel Sahara. Prior to the release of the film, however, the relationship between the parties soured and Cussler[1]filed suit against Crusader. Crusader in turn filed a cross-complaint against Cussler. Both parties accused each other of breaching the contract and committing various torts. After a 14 week trial, the jury returned a special verdict rejecting most of the causes of action asserted by both parties. The jury, however, found that Cussler breached the implied covenant of good faith and fair dealing and that Crusader incurred damages in the amount of $5 million as a result of that breach. The trial court then entered a judgment for that amount in favor of Crusader. Cussler appeals the judgment and requests that we enter a new judgment in his favor in the amount of $8,571,429.

In an underlying action, the plaintiffs complaint was dismissed as a terminating sanction for the attorneys admittedly repeated failures to respond to discovery and the trial courts orders. The plaintiffs then sued their attorneys for malpractice. The defendant attorneys moved for summary judgment on the ground the plaintiffs had no evidence they had been damaged. Over the plaintiffs opposition, the trial court granted the motion and entered judgment in the attorneys favor. The plaintiffs appeal. Court reverse.

Kellie H. (mother) appeals an order of the juvenile court pursuant to Welfare and Institutions Code section 366.22[1]terminating her reunification services with respect to her child, S.[2] Mother argues (1) there was insufficient evidence to support the juvenile courts finding that returning S to mothers care would create a substantial risk of detriment to his physical and emotional well being; and (2) the juvenile court erred by conducting the review hearing as an 18-month review hearing pursuant to section 366.22, subdivision (a), rather than a 12 month review hearing pursuant to section 366.21, subdivision (f).

Assisted Home Hospice Foundation and Assisted Home Care, Inc. (Assisted) appeal the judgment awarding respondent Susanna J. Wood unpaid vacation in the amount of $341,750 and unpaid overtime in the amount of $19,750. The court ordered Assisted to pay prejudgment interest on the unpaid vacation award in the sum of $50,995.62 and prejudgment interest on the unpaid overtime award in the sum of $3,186.49. Susanna[1]was awarded attorney's fees in the amount of $232,101.75. Assisted specifically appeals the judgment entered in favor of Susanna on May 28, 2008; an award of prejudgment interest and costs; the trial court's denial of its motion for judgment notwithstanding the verdict (JNOV); and denial of its motion for new trial. Assisted alleges instructional error regarding the judgment for unpaid vacation time, challenges the sufficiency of the evidence supporting the judgment for unpaid overtime, and claims error in the award of fees. Court reverse and remand for retrial on the issue of vacation pay and vacate the award of attorney's fees. The judgment is otherwise affirmed.

For a number of years, defendant leased from plaintiff premises in the Brentwood Gardens shopping center, described as Store 205 at 11677 San Vicente Boulevard in Los Angeles. The lease expired in mid-2004, and her tenancy was converted to month to month. Her health began to deteriorate, she was taking a lot of medication, and she planned to close her business. However, in November 2005, one of her employees, Larisa Gourvits (Gourvits), expressed a desire to take over the business. They agreed that Gourvits would buy the business from defendant, with defendant staying in the business for an additional 10 months to aid in the transition. Defendant notified plaintiff that Gourvits was taking over the business and asked that plaintiff negotiate a lease with Gourvits. Plaintiff informed her that the only way it would lease the premises to Gourvits was if defendant signed the new lease.

Anthony Lloyd Tyler appeals a judgment after his conviction of simple assault (Pen. Code, 240) and second degree robbery (id., 211, 212.5). Court conclude, among other things, that substantial evidence supports the finding that Tyler intended to permanently deprive his victim of her cell phone in committing robbery. Court affirm.

Chanel M. Perodin appeals a judgment after her conviction of voluntary manslaughter (Pen. Code, 192, subd. (a)), assault on a child causing death ( 273ab), and child abuse ( 273a, subd. (a)). Court conclude, among other things, that 1) statements Perodin made to police without being advised of her Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) were admissible because she was not under arrest or in custody when she made her statements, and 2) substantial evidence supports the judgment. Court affirm.