CA Unpub Decisions
California Unpublished Decisions
Appellant Alex Jaimez (Jaimez), a former Route Sales Representative (RSR) for respondent DAIOHS U.S.A., Inc., dba DAIOHS First Choice Services (First Choice), appeals the trial courts denial of his Motion for Class Certification (the certification motion) and his subsequent Motion for Leave to Amend Complaint to substitute new class representatives (the motion to amend). In the Complaint and certification motion, Jaimez alleged that First Choice applied a uniform policy and practice to its employees that: (1) deliberately misclassified employees as exempt (to avoid paying overtime); (2) failed to provide employees with meal and rest break periods (and failed to pay the additional compensation required by California law); and (3) failed to provide legally compliant paystubs.
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Defendant Tristan Thompson appeals from a judgment of conviction entered after a jury trial. The amended information charged a total of 10 counts against defendant. Before trial, the trial court dismissed one count on defendants motion and later dismissed an additional count pursuant to Penal Code[1] section 1118.1. Defendant was convicted of forcible rape ( 261, subd. (a)(2); count 1), forcible oral copulation ( 288a, subd. (c)(2); count 2), second degree robbery ( 211; counts 3, 4 and 5), and carjacking ( 215, subd. (a); count 8). The jury found true the kidnapping special circumstance ( 667.61)[2]on counts 1 and 2 and the firearm use allegation ( 12022.53, subd. (b)) on count 5. The jury found not true the firearm use allegation on count 8. In a bifurcated proceeding, defendant admitted that he had suffered a prior serious or violent felony conviction ( 667, subds. (a), (b)-(i), 1170.12) and served a prior prison term ( 667.5, subd. (b)).
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Appellant Kirk Anthony Collins was charged with second degree commercial burglary (count 1) and grand theft (count 2), plus three prior convictions that had prison terms (Pen. Code, 667.5, subd. (b)).[1]
On December 13, 2007, pursuant to a plea bargain, appellant pled nolo contendere to count 1 and admitted the three prior convictions. Count 2 was dismissed. He received the middle term of two years on count 1, plus three years for the prior convictions. Execution of sentence was suspended, and he was placed on three years of formal probation. His sentence included payment of a $200 restitution fine pursuant to section 1202.4, subdivision (b) (section 1202.4(b)) and a $200 probation revocation restitution fine pursuant to section 1202.44. On October 17, 2008, after hearing evidence, the trial court found appellant in violation of probation and imposed the previously suspended five-year prison sentence. This time, it imposed a $1,000 restitution fine pursuant to section 1202.4(b) and stayed a $1,000 parole revocation restitution fine pursuant to section 1202.45. Appellant contends that the trial court erred when it increased the amount of the restitution fine from $200 to $1,000, as the original amount of the restitution fine remained in force despite revocation of probation. Appellant also contends that the parole revocation restitution fine had to be set at that same amount, $200. (People v. Garcia (2006) 147 Cal.App.4th 913, 917; People v. Arata (2004) 118 Cal.App.4th 195, 201-203; People v.Chambers (1998) 65 Cal.App.4th 819, 821-823.) Respondent agrees. Utilizing the remedy employed in the foregoing cases, we strike the second restitution fine of $1,000, reduce the amount of the parole revocation restitution fine to $200, and order preparation of an amended abstract of judgment. |
Francisco Santellanes appeals from the judgment entered upon his convictions by jury of three counts of committing a lewd act on a child (Pen. Code, 288, subd. (a)).[1] The trial court sentenced him to an aggregate prison term of 10 years. Appellant contends that (1) the trial court abused its discretion by allowing admission of evidence of three separate prior incidents of sexual misconduct, (2) he was denied due process by the admission of evidence of those prior incidents, (3) he was denied effective assistance of counsel by reason of defense counsels failure to challenge admission of the Evidence Code section 1108 evidence, and (4) he was denied effective assistance of counsel in violation of his due process rights to counsel and a fair trial when his attorney systematically failed to object to inadmissible and inflammatory hearsay involving prior sexual misconduct. Court affirm.
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Tyrone Darnell Jordan appeals from the judgment entered following a jury trial in which he was convicted of four counts of attempted willful, deliberate and premeditated murder, counts 1-4 (Pen. Code, 664/187, subd. (a); 664, subd. (a)) with the finding that during the commission of the offenses, he personally used a deadly and dangerous weapon, a Molotov cocktail, within the meaning of Penal Code section 12022, subdivision (b)(1), of exploding or igniting an explosive or destructive device with intent to murder, count 5 (Pen. Code, 12308), and of arson of an inhabited structure or property, count 6 (Pen. Code, 451, subd. (b)). In a bifurcated court trial, he was found to have suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law. (Pen. Code, 1170.12, subds. (a) through (d) and 667, subd. (b) through (i).) He was sentenced in count 1 to prison for life with the possibility of parole plus one year for the dangerous weapon enhancement. In counts 2 through 5 he was sentenced to concurrent terms of life with the possibility of parole, plus one year for the dangerous weapon enhancement added to counts 2 through 4. For count 6, the court imposed the upper term of eight years, doubled to 16 years by reason of appellants prior strike conviction. He contends his juvenile adjudication cannot qualify as a prior strike, the court erred by imposing a separate consecutive term for arson of an inhabited structure as the arson was incident to the object of attempting to commit murder, and that insofar as attempted murder is a necessarily included offense of igniting a destructive device with the intent to commit murder, appellant should not have been convicted of four counts of attempted murder and one count of igniting an explosive or destructive device. For reasons stated in the opinion, Court reverse the conviction in count 5 and, in all other respects, affirm the judgment.
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As the result of a physical altercation between defendant Constancio Gonzalez and his former girlfriend, a jury convicted him of misdemeanor battery and disobeying a domestic relations court order. On appeal, defendant contends the trial court committed reversible error when it denied his request to represent himself on the day of trial. Court affirm.
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Enrique Peralta appeals from the judgment entered following a jury trial in which he was convicted in count 2, of inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)) with the true finding that during the commission of the offense, he personally inflicted great bodily injury upon the victim within the meaning of Penal Code section 12022.7, subdivision (e), and in count 3 of making a criminal threat (Pen. Code, 422.)[1] He was sentenced to prison for five years and eight months, consisting of the low term of two years, plus three years for the great bodily injury enhancement in count 2, plus one-third the middle term of two years, or eight months, consecutive, for count 3. Appellants Marsden motion was heard and denied.
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Defendant David Lewis Paschall appeals from the judgment entered after a jury convicted him of simple assault, a lesser included offense of assault by means likely to produce great bodily injury, and battery causing serious bodily injury. Defendant contends the trial court erred by failing to dismiss his conviction of simple assault as a lesser included offense of aggravated battery. Court conclude the simple assault conviction must be reversed because it is a necessarily included offense of aggravated battery, but otherwise affirm the judgment.
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James S. Brown is alleged to have been the victim of a real estate scam purportedly perpetrated by Dax Dorsch and Mark and Gonzalo Delatoba. Brown claims Dorsch and Mark Delatoba forged Brown's name on a grant deed, deed of trust, and two promissory notes and used the documents to open an escrow to obtain a loan secured with Brown's residence. The escrow closed and a lien was recorded against the residence without Brown's knowledge.
Brown filed a complaint against all the entities involved in the transaction alleging numerous causes of action, including slander of title against the escrow holder, its owner and an employee. The trial court granted the escrow defendants' motion for judgment on the pleadings stating numerous grounds for doing so. Court affirm. |
On March 20, 2007, defendant Daniel Michael Treglia, along with codefendants who are not parties to this appeal, was charged with possession of a weapon by a state prisoner (Pen. Code, 4502, subd. (a)),[1] and the complaint alleged he had a strike conviction and had served a prior prison term ( 667, subds. (b)-(i), 1170.12, 667.5, subd. (b), respectively). On October 9, 2007, defendant exercised his right to act as his own counsel, and because defendant remained incarcerated, the trial court signed a standardized written order outlining defendants Pro Per Privileges. Defendant made many largely unsuccessful motions alleging that his privileges were either inadequate as ordered, or that jail personnel had interfered with those privileges.
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A jury convicted petitioner Robert Dion Parks of one count of first degree robbery (Pen. Code, 211) and one count of first degree burglary (Pen. Code, 459). On appeal, this court affirmed the judgment as modified. (People v. Parks (Sept. 26, 2000, C031037) [nonpub. opn.].) In a petition for a writ of habeas corpus, petitioner now seeks relief from the judgment on grounds that were not raised on appeal. He claims, among other things, that he was unlawfully sentenced on both convictions which arose out of a single occurrence. (People v. Lewis (2008) 43 Cal.4th 415, 519 [section 654 of the Penal Code bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective].) This court issued an order to show cause limited to the claim that petitioners sentence is not authorized by law because it fails to stay execution of the sentence for burglary. [Citing Pen. Code, 654.] The Attorney General concedes the claim is meritorious. We will accept the concession and, thus, modify the judgment.
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Appellants and real parties in interest, Same Day Air Couriers of Illinois, Inc. and its affiliated corporations (the Employer) appeal from an order in favor of Plaintiff and Respondent Brian Murphy (Murphy), in this action for a writ of mandate or administrative mandamus.[1] (Code Civ. Proc., 1085, 1094.5.) In 2000, Murphy filed a claim for unpaid wages against Employer (the underlying claim) with Respondent, the California Division of Labor Standards Enforcement (the DLSE).[2] That underlying claim has never been adjudicated on the merits, although it has been the subject of several administrative and superior court proceedings. On appeal, the Employer contends that the trial court should not have granted Murphy's petition and motion to set aside an order by the Labor Commissioner's (the Commissioner) hearing officer (an order of dismissal of his underlying claim, dated May 9, 2007). According to the Employer, when Murphy filed a 2004 superior court action, which was ultimately dismissed for lack of prosecution, he made a binding election of remedies, and his underlying claim is no longer subject to adjudication on the merits. Additionally, the Employer argues this petition was untimely filed.
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The Los Angeles County Department of Children and Family Services (Los Angeles Department) and child Anthony H. appeal the transfer of Anthony's juvenile dependency case from Imperial County, where Anthony was placed with a relative, to Los Angeles County, where Anthony was originally detained. Anthony's mother and alleged father, Claudia H. and Adrian M., also request reversal of the transfer order. Court reverse.
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