CA Unpub Decisions

Tri/Sam Development, Inc. (Tri/Sam) appeals from the adverse judgment in its action for breach of contract and negligence against one of the subcontractors hired for a residential remodeling project. Tri/Sam contends the trial court erroneously limited the testimony of its expert witness. Court affirm.

On appeal following his conviction for second degree murder, Felix M. Rodriguez contends the evidence demonstrated he killed Daniel Contreras, his 19 year old stepson, in the heat of passion after he learned Contreras had inappropriate sexual contact with Rodriguezs children and thus at most supports a conviction for voluntary manslaughter. Rodriguez also contends the prosecutor committed misconduct during closing argument. Court affirm.

Charles Pembroke was charged by amended information with one count of gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a), Veh. Code, 3140, 23152 and 23153). After two trials ended in a hung jury, Pembroke waived jury in favor of a bench trial, and submitted the case on the transcripts and exhibits of the earlier trials. Pembroke waived his right to testify at the bench trial.

Personal Electric Transports, Inc. (PET) appeals from a judgment confirming an arbitration award against it. Court find PET failed to file a timely petition to vacate the arbitration award, and the trial court did not abuse its discretion in refusing PETs request to extend the time for such petition. Court affirm.

Appellant Fathy Abdelrahim appeals from the judgment upon an order for directed verdicts on his negligence and misrepresentation claims and a jury verdict in favor of respondent Guardsmark, LLC (Guardsmark) on the remaining claims. Before this court, appellant challenges the admission and exclusion of certain evidence and the courts order directing the verdict on two of his claims. As Court shall explain, Court are unable to review two of the challenges to evidentiary rulings because appellant failed to provide a sufficient appellate record for this court to review, and as to the other challenges to the courts order directing the verdicts and admitting evidence, we find no error. Accordingly, Court affirm.

Appellant Paul J. Anderson (Anderson) appeals from the judgment entered upon the trial courts orders sustaining: (1) respondents[1] demurrers to Andersons malicious prosecution complaint without leave to amend; (2) granting respondents special motion to strike Andersons malicious prosecution action pursuant to Code of Civil Procedure section 425.16; and (3) awarding costs to respondents. The trial court sustained the demurrers without leave to amend on the grounds that Andersons complaint for malicious prosecution was barred by the two year statute of limitations in 335.1 and also as to certain parties, under the one year statute of limitations in 340.6.

Defendant Ernesto Acedo timely appealed from his conviction on two counts of second degree murder and one count of arson of an inhabited structure. The jury found the multiple murder special circumstance not true. The court sentenced defendant to 35 years to life. Defendant raises several issues based on his use of Zoloft on the day before he murdered his wife and son. Court affirm.

Janette Isaacs appeals from the judgment entered in a bifurcated trial to resolve certain issues relating to the date of separation, characterization and division of property, credits and reimbursement claims and spousal and child support in the marital dissolution proceedings between appellant and respondent, James Isaacs. Before this court, appellant asserts a number of errors concerning issues decided during the trial and resolved in the judgment, including the child support determinations and the characterization of two businesses as respondents separate property. In her brief she also challenges a number of post-judgment, post appeal matters, including orders: (1) denying a request to modify the spousal order in the judgment; (2) granting respondents request to place the equalization payment ordered in the judgment in a child support security account; (3) granting respondents motion to declare the appellant a vexatious litigant; and (4) relating to child custody issues. As we shall explain, we do not reach the merits of those post-judgment orders because appellant could have, but did not appeal from them, or as in the case of the child custody-related orders, they relate to issues that were not decided in the trial, nor were they part of the judgment on appeal. As for the issues concerning matters embraced by the judgment from which she properly appealed, namely, the characterization of the businesses and the child support order, Court conclude that appellant did not comply with the rules of court in presenting an adequate appellate record to demonstrate error. Nonetheless, based on what evidence is before this court, we conclude that sufficient evidence supported the courts findings as to those issues, and appellant has failed to demonstrate prejudicial error. Consequently Court affirm the judgment.

Plaintiff John Herklotz appeals judgment entered after the court sustained defendants Thomas Gehring and Charles Von Bernuths demurrers to his first amended complaint for contribution and indemnity on a guaranty, finding his action was barred by res judicata. Plaintiff contends that the dismissal of his claims against defendants in a related federal action is not a bar to recovery in this action because that dismissal was not on the merits. Court affirm.

Defendant Manuel Mata Gonzalez was arrested following a carjacking and high speed chase through the streets of Paramount. He was convicted on count one of carjacking and on count two of evading a peace officer. As to count one, gang and weapon allegations were found true. On appeal, defendant challenges the sufficiency of the evidence to support the gang enhancement under Penal Code section 186.22, subdivision (b)(1) as well as the propriety of his sentence on count one. Defendant also filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel at trial. Respondent also challenges defendants sentence on count two and claims the trial court failed to order sufficient court security fees.
Court conclude (i) substantial evidence does not support the gang enhancement, (ii) the sentence on count two is unclear due to disparity between the reporters transcript, abstract of judgment and sentencing minute order, and must be reversed, and (iii) the trial court failed to assess sufficient court security fees. Court deny the petition for writ of habeas corpus.

On April 25, 2008, a jury found appellant Luis Alberto Gutierrez (Gutierrez) guilty of one count of second degree robbery (Pen. Code, 211)[1]and found the allegation that he personally used a firearm during the commission of the robbery to be true. ( 12022.53, subd. (b).)[2] The trial court sentenced Gutierrez to the high term of five years for the robbery, plus a 10-year consecutive term pursuant to section 12022.53, subd. (b), and a two-year consecutive term pursuant to section 12022.1, for a total term of 17 years.Gutierrez appeals, contending the trial court erred by: (1) finding the victim unavailable and then allowing use of his preliminary hearing testimony at trial; (2) excluding a late-found witnesss testimony; and (3) admitting the unavailable victims statement to one of the police officers in violation of Gutierrezs rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution. Court conclude the trial court committed harmless error in admitting the victims testimonial hearsay in violation of the Confrontation Clause and determine his other contentions lack merit. Court therefore affirm the judgment.

A jury convicted Joshua Allen Kane of carjacking, second degree robbery, possession of a firearm by a felon and resisting arrest and found true several special allegations, including that each of the offenses was committed for the benefit of a criminal street gang. On appeal Kane contends the evidence is insufficient to support the jurys findings concerning the gang-enhancement allegations. Court agree and reverse the judgment and remand for resentencing. In all other respects, Court affirm.

Horacio Naya was convicted by jury of one count of selling, transporting or offering cocaine base for sale (Health & Saf. Code, 11352, subd. (a)). The trial court found to be true the allegations that he had suffered a prior conviction of a narcotics-related offense within the meaning of Health and Safety Code section 11370.2, subdivision (a) and three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). It sentenced appellant to a state prison term of 11 years.
In a previous appeal from that judgment, we concluded that the trial court erred in failing to conduct an in camera Pitchess[2]hearing to determine whether there were any relevant, discoverable personnel records of the two police officers involved in appellants drug arrest. On remand, the trial court conducted the in camera hearing and found relevant records, which it ordered produced to the defense. Appellant thereafter filed a motion for new trial, arguing that the failure to have received the newly produced Pitchess discovery for use at trial prejudiced him and entitled him to a new trial. The trial court denied the motion. Appellant now appeals from the denial of this motion, contending that the trial court abused its discretion. Court affirm.

Jeffrey Dendard Lewis appeals from his conviction for the first degree murder of his ex-wifes companion. Court modify the judgment to award presentence custody credits and, as modified, affirm.