CA Unpub Decisions

A jury convicted defendant Mark Anthony Rodriguez on one count each of assault with intent to commit rape, oral copulation or digital penetration (Pen. Code, 220, subd. (a)),[1] second degree burglary ( 459), and false imprisonment by violence ( 236).[2] On appeal, defendant contends the evidence is insufficient he had the specific intent to commit rape, oral copulation or digital penetration during the assault. Court affirm.

Kelly Marvin Johnson appeals the judgment entered after a jury convicted him of involuntary manslaughter (Pen. Code, 192, subd. (b)). The trial court sentenced him to three years in state prison. He challenges the sufficiency of the evidence supporting his conviction and raises various claims of instructional error. Court affirm.

Defendant and appellant Marquis Remble was sentenced to 13 years in prison after he violated his probation that had been granted on his attempted second degree robbery plea. Appellant appeals from an order revoking his probation and sentencing him to 13 years in state prison. He contends: (1) he could not be sentenced to prison for 13 years because the grant of probation was unauthorized; and (2) the trial court erred in imposing a second restitution fine. Court hold that appellant is foreclosed from arguing that he could not be sentenced to state prison upon his violation of probation. We also hold that the trial court made a number of errors in imposing fines, which we have corrected. Court affirm the judgment as modified.

Richard K. (hereinafter Father) appeals from the jurisdiction and disposition order of the dependency court declaring his two children dependents under Welfare and Institutions Code section 300. Father contends: (1) he was provided inadequate notice of the January 16, 2009, jurisdiction and disposition hearing; (2) there was no substantial evidence supporting the courts order asserting jurisdiction over his children; and (3) the record lacked substantial evidence to support the dependency courts finding that there were no reasonable means to protect the children without removal from Fathers custody. Court affirm.

An amended information alleged that, defendant, Juan Carlos Gonzalez, committed the following offenses: aggravated assault of a child (Pen. Code,[1] 269, subd. (a)(1) (count 1)); sexual penetration by foreign object ( 289, subd. (a)(1) (count 2); forcible lewd act upon child ( 288, subd. (b)(1) (counts 3 and 4)); and lewd act upon child (counts 5, 6 and 7). ( 288, subd. (a).) Counts 5, 6 and 7 were charged as lesser included offenses as to the other counts. A jury convicted defendant of a lesser included offense of lewd act upon child on counts 3 and 4. The jury found defendant guilty as charged in count 5. The jury acquitted defendant on counts 1 and 2. The trial court sentenced defendant to a 12-year term. Defendant was ordered to pay a restitution fine of $500 ( 1202.4, subd. (b)(1)) and a parole revocation fine of $500. ( 1202.45.) Defendant received a total presentence custody credit of 261 consisting of 227 days of actual custody plus 34 days of conduct credit. On December 4, 2009, on our own motion, Court judicially noticed the abstract of judgment which was filed on March 26, 2009.

The sole issue is whether the trial court failed to understand the scope of its discretion to strike one or more serious or violent felony convictions for purposes of sentencing under the Three Strikes law. Court conclude the court did understand the scope of its discretion and therefore we affirm the judgment.

Appellant, Anthony L. Greco (Greco) appeals from a judgment following the sustaining of a demurrer to his second amended complaint without leave to amend on grounds his causes of action were barred by the one year statute of limitation set forth in Code of Civil Procedure section 340.5. For the reasons hereafter stated, the judgment is affirmed.

Plaintiff Judy Ritchie, appeals from an order denying her petition to compel arbitration of claims against Peter Ford, as trustee of the Glen Ford Living Trust Established April 8, 1994 (the trust)[1]pursuant to Code of Civil Procedure section 1281.2.[2] Plaintiff was Glens personal assistant until his death on August 20, 2006. Plaintiff argues the trial court erred in refusing to compel arbitration of her claims against the trust on the ground she failed to comply with the one-year limitation period related to claims against a decedents estate or trust. ( 366.2-366.3.) Court reverse the order denying the petition to compel arbitration because the statute of limitations issue must be decided by the arbitrator.

Bret Allen Jones appeals the judgment entered after he (1) was found in violation of his probation following his conviction for false personation (Pen. Code,[1] 529) and driving with a suspended license for driving under the influence (Veh. Code, 14601.2, subd. (a)) (case no. 1141933); and (2) pleaded no contest to grand theft ( 484g), identity theft ( 530.5, subd. (a)), six counts of commercial burglary ( 459), and five counts of forgery ( 470, subd. (a)) (case no. 1238454). The trial court sentenced him to a total state prison term of seven years eight months. He contends the court violated the terms of his plea agreement in that he agreed to plead to the new charges in exchange for a sentence of five years eight months. Because appellant's claim is essentially an attack on the validity of his plea and he did not obtain a certificate of probable cause, we dismiss the appeal.

Karla D. (mother) appeals from a judgment of the juvenile court terminating her parental rights with respect to her daughter, Diana D. Court affirm.

Petitioners and defendants Seongsu Kim and Eun Kyung Kim (collectively, the Kims) seek a writ of mandate directing the trial court to set aside its order denying their motion to disqualify their former law firm, Lim, Ruger & Kim, LLP (Lim Ruger) from representing real party in interest and plaintiff Wilshire State Bank (Bank) in connection with the underlying case. Because there is a substantial relationship between Lim Rugers prior representation of the Kims and Lim Rugers current representation of the Bank, and because the modified substantial relationship rule is inapplicable under the circumstances of this case, Court grant the petition.

A jury found defendant Javier Oliva Guerrero guilty of involuntary manslaughter (as a lesser offense of the charge of murder) and assault on a child under eight with force likely to produce great bodily injury that resulted in death (hereafter child abuse homicide). (People v. Malfavon (2002) 102 Cal.App.4th 727, 731). The trial court sentenced him to state prison, staying sentence on the conviction for involuntary manslaughter pursuant to Penal Code section 654. The defendant asserts that the evidence failed to show that he had any subjective awareness of circumstance that would lead a reasonable person to realize that the nature of his actions would inflict great bodily injury. The defendant argues the evidence is consequently insufficient to sustain his assault conviction. Court shall affirm.

This case involves appeals from an order after judgment awarding attorney fees to the plaintiffs and from the judgment underlying the order. The judgment declares that the appellants had breached a covenant of good faith and fair dealing when they failed to consider a request for an expanded easement pursuant to a Road Maintenance Agreement. The parties argue the validity of the judgment as a declaratory judgment but do not directly argue the merits of the attorney fee award. However, the validity of the judgment is central to the validity of the attorney fee award, as shown by the provisions of the statute governing the award of the fees, Civil Code section 1717.

A jury convicted defendant Raymond James Dillon of two counts of first degree robbery (Pen. Code, 211, 212.5, subd. (a); further statutory references are to the Penal Code; counts one & five), two counts of first degree burglary ( 459, 460, subd. (a); counts two & seven), false imprisonment ( 236; count three), battery causing serious bodily injury ( 243, subd. (d); count four), carjacking ( 215, subd. (a); count six), abuse of an elder likely to produce great bodily harm ( 368, subd. (b)(1); count eight), false imprisonment of an elder ( 368, subd. (f); count nine), assault with a deadly weapon ( 245, subd. (a)(1); count ten), receiving stolen property ( 496, subd. (a); count eleven), and sale or transfer of an access card without consent ( 484e, subd. (a); count twelve). The jury found that defendant personally used a deadly or dangerous weapon ( 12022, subd. (b)(1)), and personally inflicted great bodily injury on a person over 70 years old ( 12022.7, subd. (c)), in the commission of counts five through eight. In a bifurcated proceeding, the jury found that defendant had suffered a February 1986 first degree burglary conviction and a February 1999 attempted carjacking conviction, each of which had been alleged as both a prior serious felony ( 667, subd. (a)) and a strike ( 667, subds. (b)-(i), 1170.12). Defendant was sentenced to state prison for a determinate term of 38 years and a consecutive indeterminate term of 77 years to life. The sentence was computed as follows: on count one, 25 years to life plus 10 years for prior convictions; on count six, 27 years to life ( 667, subd. (e)(2)(A)(i)) plus three years for weapon use, five years for great bodily injury, and 10 years for prior convictions; and on count twelve, 25 years to life plus 10 years for prior convictions. Sentence on the remaining counts and enhancements was stayed pursuant to section 654.