CA Unpub Decisions

Defendant Lollicup USA, Inc. (Lollicup) appeals the judgment in favor of plaintiff William K.K. Ng, doing business as Global Foods (Ng). We conclude that the damages awarded by the trial court were excessive, and thus we direct the trial court to modify the judgment by reducing the damages from $383,624.53 to $44,000. As so modified, Court affirm.

Appellant Jose Maldonado appeals from his conviction of two counts of attempted willful, deliberate, premeditated murder (Pen. Code, 187, subd. (a), 664),[1]and one count of possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury found firearm and gang allegations to be true. ( 12022.53, subds. (b) & (c), 186.22, subd. (b)(1)(A), (1)(C).) Appellant argues that there was insufficient evidence of deliberation and premeditation to support the attempted murder convictions. He and respondent agree that the abstract of judgment incorrectly reflects the convictions and sentences. Court modify the abstract of judgment to reflect appellants convictions and the resulting sentences. Finding the evidence sufficient to support the convictions, we affirm the judgment.

Adolphus Ray Harper appeals from the judgment entered following his plea of guilty to possession for sale of cocaine base (Health & Saf. Code, 11351.5), failing to appear after having been released on his own recognizance (Pen. Code, 1320, subd. (b))[1] and grand theft of personal property ( 487, subd. (a)), and his admission that he previously had suffered a conviction for burglary within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Harper to 10 years, 8 months in prison. Court affirm.

Appellant S.S. (Mother) has four daughters: Tiffani M., born in 2001, Harmony F., born in 2003, Leila F., born in 2005 and Cherish S., born in 2006.[1] Jose M. is the father of Tiffani. Albert F. is the father of Harmony and the alleged father of Leila.[2] This is the third time this case has been before us. In the first proceeding, Mother and Albert appealed the courts 2007 jurisdictional and dispositional orders, including an order that denied appellants reunification services with respect to Tiffani and Harmony. In the second proceeding, Mother and Albert joined in appealing the courts June 2008 order terminating parental rights over Harmony, and Albert sought review of the courts denial of his June 2008 petition for modification. In the current proceeding, Mother appeals the court order denying her October 2008 petition for modification. Court affirm the courts order.

Global Discoveries, Ltd. (Global) appeals the denial of its petition for a peremptory writ to compel the County of Ventura and the Ventura County Tax Collector (County) to pay $168,911.11 in excess proceeds from the tax sale of a vacant lot. (Rev. & Tax. Code, 4674.)[1] County denied the excess proceeds claim because Global did not have a security interest in the vacant lot and was not a "party of interest" within the meaning of section 4675. Court affirm.

Patrick Ray Perry appeals from the judgment entered after a jury convicted him of second degree commercial burglary. (Pen. Code, 459.)[1] Appellant admitted a prior prison term enhancement ( 667.5, subd. (b)) and was sentenced to the low term of 16 months state prison plus one year on the enhancement. The trial court ordered appellant to pay a $400 restitution fine ( 1202.4, subd. (b)), a $400 parole revocation fine ( 1202.45), a $20 court security fee ( 1465.8), and a $10 crime prevention fine ( 1202.5). The trial evidence showed that appellant and Kevin Phillips walked into a T-Mobile Store in Palmdale to commit a theft. Phillips purchased a pre-activated $10 Sim card for a Sidekick phone as appellant looked at a Sidekick phone on display. The sales clerk was suspicious because Phillips did not have a T-Mobile phone and Sidekick display phones are the most commonly shoplifted item. Phillips diverted the attention of the sales clerk while appellant took the Sidekick phone on display.
The store manager discovered the theft, called the Sim-card phone number purchased by Phillips, and said the store would not prosecute if the phone was brought back. Within 10 minutes of the call, appellant returned the stolen Sidekick phone and apologized.

We hold that the elements of robbery have not been satisfied where the force used by the defendant was not used against the owner of the property, but against the property owners friend, who had no authority or responsibility to protect the stolen property on behalf of the owner. Accordingly, Court conclude that the robbery count should have been dismissed.

This case returns to this court on remand after the Supreme Courts decision in People v. Chun (2009) 45 Cal.4th 1172 (Chun). In our prior opinion, filed September 14, 2007, we reversed defendants murder conviction. We found two errors. The trial court erred in admitting into evidence defendants admission that he fired a gun. Although we found this error harmless beyond a reasonable doubt as a pure evidentiary matter, it contributed to the second error of instructing the jury on second degree felony murder. We found the second error required reversal.
In Chun, supra, 45 Cal.4th 1172, the Supreme Court addressed only the second error. It held it was error to instruct on second degree murder where the underlying felony is shooting at an occupied vehicle in violation of Penal Code section 246. The court found, however, that this error was harmless beyond a reasonable doubt when considered individually. Because there was a second error in admitting defendants admission he fired a gun, the Supreme Court remanded for a determination whether the two errors, in combination, were prejudicial. Having considered the cumulative effect of the two errors, Court conclude the errors together were not prejudicial.

Defendant Bruce Larry Moore was convicted of child abuse and inflicting corporal injury on a child. (Pen. Code, 273a, subd. (a); 273d, subd. (a).) He was placed on probation with various conditions and was ordered to pay certain fines and fees. On appeal, he contends there was insufficient credible evidence to support his convictions. As we will explain, although reading his appellate briefs would lead this court to believe the claim may have some merit, a review of the record quickly reveals that it borders on being frivolous.

A jury convicted defendant Pharaoh Elisha Brooks of attempted willful, deliberate, and premeditated murder (Pen. Code, 664, 187),[1]residential burglary ( 459), and assault by means of force likely to cause great bodily injury ( 245, subd. (a)(1)). The jury also found true allegations of infliction of great bodily injury ( 12022.7, subd. (a)) as to each count. On appeal, defendant contends that (1) insufficient evidence supported the attempted murder conviction, (2) the trial court erred in responding to the jurys request for a read back of testimony, (3) the jury should have been instructed on voluntary manslaughter, (4) CALCRIM No. 600 misinstructed the jury that it could infer that a direct step toward commission of murder indicated the requisite intent to kill, (5) the trial court abused its discretion in denying a continuance for defense counsel to locate a missing alibi witness, (6) the prosecutor committed misconduct by questioning witnesses about evidence not admitted at trial, and (7) the trial court should have stayed the sentence for burglary because it was part of an indivisible course of conduct in the commission of the attempted murder.
Court shall order the sentence for the burglary conviction stayed pursuant to section 654. In all other respects, Court shall affirm the judgment.

Jeff Davi, as Commissioner of the California Department of Real Estate (DRE) (Commissioner), denied Bruce D. Donleys application for an unqualified real estate salesperson license, issuing to him instead a restricted license. Donley filed a petition for writ of administrative mandamus (Code Civ. Proc., 1094.5) challenging the Commissioners decision, claiming he was entitled to an unrestricted license. The trial court denied Donleys petition and entered judgment for the Commissioner. Donley appeals claiming: his 2003 misdemeanor conviction of Penal Code section 273.5 (willful infliction of corporal injury on his cohabitant/mother of his child--hereafter section 273.5) is not a crime of moral turpitude; such conviction is not substantially related to the qualifications, functions, and duties of a real estate salesperson licensee; and in any event, he is rehabilitated under the DREs published criteria. (Cal. Code Regs., tit. 10, 2911.) Donley also raises several evidentiary objections to the documentary evidence submitted by the DRE. Court affirm the judgment.

Redrose Singh and his wife Preet Mehra (collectively the Singhs) appeal from denial of their petition for a writ of administrative mandamus to set aside the Stockton City Councils decision revoking the nonconforming use status of their store that permits them to sell alcoholic beverages for off-site consumption. The Singhs operate New Grand Save Mart in south Stockton; the market has been selling alcohol for about 60 years as a legal nonconforming use. Located in a high crime area, its parking lot has been a center of criminal activity, from loitering, public drunkenness, gambling and narcotics activity to assaults, robberies and homicides. In an attempt to reduce crime, the Stockton Police Department requested that the City revoke the Singhs right, as a legal nonconforming use, to sell alcohol at the store. The Planning Commission voted unanimously to revoke that right and the City Council unanimously denied the Singhs appeal. The trial court denied their petition for a writ of mandate and the Singhs appeal. The parties dispute whether the City followed the proper procedure in revoking the nonconforming use status. The Singhs contend the City was too hasty in seeking revocation without first attempting to impose conditions to reduce the problems. The Singhs contend the City violated due process, statutory law, and the Citys municipal code in revoking their fundamental vested right to sell alcohol. They contend the City could revoke their legal nonconforming use status only if the City found a compelling public necessity, which required finding both a nuisance and that the operator refused to comply with reasonable conditions. The City contends recent improvements by the Singhs were a little bit too late. The City disagrees with the Singhs as to the law, but further contends the City was justified in revoking the legal nonconforming use because the evidence showed any attempt at abatement would be futile due to the Singhs poor history of cooperation and compliance. The City contends that since substantial evidence supports the trial courts finding of futility, the judgment must be affirmed.

In October 2007, while in California State Prison, Sacramento, Correctional Officer Rachel Rendon saw defendant looking at her through his cell window while masturbating his exposed and erect penis. Defendant then inserted his penis through the open food port and continued to masturbate. After approximately 30 seconds, he withdrew his penis from the food port and stuck out his hands, making a gesture with his index fingers estimating the length of his penis. Rendon sent Correctional Officer Jeremy Purdy to defendants cell. When Purdy arrived at the cell, he saw defendant walking to the back of his cell with his pants down below his buttocks. Purdy instructed defendant to lift his pants and submit to handcuffs. Defendant complied. Two weeks before the incident, defendant had apologized to Rendon for always looking at her and waving at her, but explained that he could not control himself because she looked like a porn star. Rendon admonished defendant, telling him his comment was inappropriate.

In April 2008, minor M.A., age 17, admitted that she came within the provisions of Welfare and Institutions Code section 602 in that she committed felony vandalism with damage of $400 or more (Pen. Code, 594, subd. (b)(1)), was under the influence of alcohol in a public place (id., 647, subd. (f)), and resisted a peace officer (id., 148, subd. (a)(1)). In exchange, several related counts were dismissed. She was declared a ward and placed on probation in the residence of her guardian on conditions including 30 days of Intensive Home Supervision that included electronic monitoring. A contested restitution hearing was scheduled. In late April 2008, a notice was filed alleging that the minor violated her probation by removing her electronic monitor and leaving her home. The minor admitted the violation and was returned to her guardian on the previous terms and conditions.