CA Unpub Decisions

Because the trial court erred as to some but not all of the grounds for a new trial, defendant Nancy Stovalls contentions on appeal are largely unavailing. We modify the order to preclude a new trial as to the contract-related causes of action in plaintiff Jeffrey Rosens complaint, to which the delayed discovery rule is factually inapplicable. However, the order is otherwise affirmed and not an abuse of the trial courts discretion to the extent it permits a new trial of the issues resolved adversely to Rosen in Stovalls cross-complaint. Stovall also appeals the underlying judgment awarding her more than $1 million, but resolving issues adversely to her, such as the causes of action for financial elder abuse and breach of a written agreement. Stovall urges that if we permit a new trial, then substantial justice requires a complete new trial with an unhampered opportunity to present the claims in her cross-complaint that were rejected, and not just a new trial on the issues resolved adversely to Rosen. This contention is without merit.

Defendant and appellant, Ollie James Bledsoe, Jr., appeals the judgment entered following his conviction, by jury trial, for robbery (8 counts), assault with a semiautomatic firearm (9 counts) and burglary, with serious felony conviction, firearm and gang enhancement findings (Pen. Code 911, 245, subd. (b), 459, 667, subd. (b)-(i), 12022.53, 186.22). Bledsoe was sentenced to state prison for a term of 62 years, 4 months. The judgment is affirmed.

A jury convicted defendants Anthony Scott Allen (Allen), Ryan Christopher White (White), and Joseph Dale McCool (McCool) of attempted murder (Pen. Code, 187, 664)[1] (count 1) and of assault by means of force likely to inflict great bodily injury ( 245, subd. (a)(1)) (count 2).[2] The jury found with respect to all counts that the offenses were hate crimes voluntarily committed in concert with another in violation of section 422.75, subdivision (b) (the hate crime allegation). The jury found with respect to White and McCool that they personally used a deadly and dangerous weapon (a knife) within the meaning of section 1192.7, subdivision (c)(23). White admitted a prior prison term allegation.
The trial court sentenced Allen to 10 years in prison. The sentence consisted of the midterm of seven years for the attempted murder with an additional three years pursuant to the hate crime allegation. The trial court imposed and stayed under section 654 a six-year term for the assault.

Appellant Isidro Perez was convicted, following a jury trial, of one count of first degree murder of Vito Loveless in violation of Penal Code[1] section 187, subdivision (a). The jury found true the allegations that appellant personally used a firearm and personally and intentionally discharged a firearm causing death within the meaning of section 12022.53, subdivisions (b) through (d). The jury also found true the allegation that the murder was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). The trial court sentenced appellant to 25 years to life for the murder conviction plus a 25 years to life enhancement term for the firearm allegation plus a 10-year term for the gang allegation, for a total term of 60 years to life in state prison. Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to instruct the jury on certain aspects of the murder charge using CALJIC Nos. 8.70, 8.71 and 8.74. Appellant also contends that the trial court erred in imposing a 10-year term for the gang allegation. Respondent agrees that the 10 year term is erroneous. Court agree as well. Court order the section 186.22 term corrected, as set forth in more detail in our disposition. Court affirm the judgment of conviction in all other respects.

A jury convicted Scott Lee Smith of robbery and petty theft. He appeals, contending that the prosecution presented the case to the jury on a legally incorrect theory and that he cannot be convicted of both robbery and the lesser included offense of petty theft on the basis of the same conduct. Court reject the first contention but agree with the second, and we therefore reverse in part.

Jeno Donte Brewer appeals from the judgment following his convictions by a jury of forcible rape, forcible oral copulation, sexual penetration by a foreign object, and kidnapping to commit rape. He contends the court erred in admitting irrelevant expert testimony regarding child sexual abuse accommodation syndrome and rape trauma syndrome, and further erred in admitting evidence of prior sexual assaults as propensity evidence pursuant to Evidence Code section 1108. He also contends the court violated his Sixth Amendment right of confrontation by admitting testimony regarding the sexual assault examination and report from a person who had neither conducted the exam nor prepared the report. Finally, he contends prosecutorial misconduct in closing argument violated his right to due process. Court conclude that the admission of evidence and other errors with respect to one of the uncharged sex offenses resulted in prejudicial error and accordingly reverse.

Alejandro Lomeli appeals a judgment following conviction of second degree murder, with a finding that he personally used a deadly and dangerous weapon during commission of the crime. (Pen. Code, 187, subd. (a), 189, 12022, subd. (b)(1).) Court affirm.

Warner Bros. Entertainment Inc. (WB) appeals from an order denying its petition to compel arbitration of its claim for breach of a settlement agreement. Court find no error and affirm the order.

David Carrino appeals from an order finding him in violation of his probation. The court revoked probation and sentenced appellant to 18 months in state prison on his underlying conviction for possessing methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). Appellant contends there was no substantial evidence to support a finding that he violated probation on May 12, 2006, on any ground stated in the notice of violation. Court affirm.

Appellant Brandt Stites claims that his rights were violated when he was denied a hotel room because he was accompanied by a disabled person with a service dog. The trial court granted respondents motion for summary judgment. We affirm. Appellant did not produce any evidence showing that respondents own, operate, or control the hotel where he was denied accommodations. Rather, the hotel in question is owned and operated by a franchisee. Respondents cannot be held vicariously liable for the actions of a third party franchisee, where appellant failed to show (1) an actual or ostensible agency relationship between respondents and the franchisee, or (2) that respondents hired, trained or supervised the desk clerk who denied appellant accommodations. Further, the trial court did not abuse its discretion by denying appellants request for a continuance.

Defendant Dartwaun Thibodeaux appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of assault with a firearm upon a peace officer (Pen. Code, 245, subd. (d)(1))[1] in counts 1 and 2; assault with a firearm ( 245, subd. (a)(2)) in counts 3 through 7; shooting at an occupied car ( 246) in count 8; discharge of firearm with gross negligence ( 246.3) in count 9; unlawful possession of firearm ( 12021, subd. (a)(1)) in count 10; and unlawful possession of ammunition ( 12316, subd. (b)(1)) in count 11. The jury also found true the allegations as to counts 1 and 2 that defendant personally used a firearm and/or personally and intentionally discharged a firearm ( 12022.53, subds. (b) & (c), 12022.5, subds. (a) & (d)). In a bifurcated proceeding, the trial court found not true the allegation that defendant had suffered one prior conviction of a serious felony ( 667, subds. (a), (b)-(i), 1170.12).

Defendant Mohammed Alsairwan appeals from the judgment following his no contest plea to commercial burglary, and related theft offenses. He also appeals from a post-judgment order in an earlier case revoking his probation. Defendant challenges the propriety of the resulting state prison sentence, contending the trial court misunderstood and/or abused its discretion to dismiss the prior qualifying strike conviction for sentencing purposes under Penal Code section 1385 and People v. Superior Court (Romero) 13 Cal.4th 497 (Romero). Court affirm.

A jury convicted defendant and appellant Ernest Freeman (defendant) of assault by means likely to produce great bodily injury. (Pen. Code, 245, subd. (a)(1)[1].) The jury found true the allegation that defendant personally inflicted great bodily injury under circumstances involving domestic violence. ( 12022.7, subd. (e).) On appeal, defendant contends that there is insufficient evidence to support the jurys finding that when he personally inflicted great bodily injury he did so under circumstances involving domestic violence. Court hold that there is substantial evidence that defendant had a dating relationship ( 12022.7, subd. (e)) with the victim so as to support the finding of domestic violence.

A jury convicted defendant Joseph Gary Torres of a series of sex offenses against two minor girls, C.S. and R.S.[1] The trial court sentenced him to 32 years 4 months in state prison. He appeals, contending: (1) the trial court abused its discretion by forc[ing] unwanted retained counsel on [him] without good cause or informing [him] of his absolute right to fire retained counsel if he wanted to represent himself; (2) the courts ruling also deprived him of his federal constitutional right to counsel of his choice and to self-representation, and his state constitutional right to counsel of his choice; (3) the conviction of continuous sexual abuse of C. (count 1) must be reversed for insufficiency of the evidence and because the court failed to instruct on lesser included offenses; and (4) the conviction of forcible sodomy of R. (count 9) must be reversed for several alleged instructional errors and because the evidence was insufficient. Court conclude that the trial court properly denied defendants request to discharge his retained counsel. However, Court find the evidence insufficient to support the conviction of continuous sexual abuse of C. We further conclude that none of defendants challenges to his conviction of forcible sodomy of R. has merit. Court therefore reverse the conviction on count 1, but otherwise affirm the judgment, and remand for resentencing in light of the reversal of count 1.