CA Unpub Decisions

Leonardo Garcia entered into a plea agreement in which he pled guilty to transporting methamphetamine (Health & Saf. Code, 11379) while possessing a firearm (Pen. Code,[1] 12022, subd. (c)) and evading a police officer by driving recklessly (Veh. Code, 2800.2.) Garcia also admitted a prison prior within the meaning of section 667.5, subdivision (b) and a prior strike conviction based on a prior juvenile adjudication ( 667, subds. (b)-(i)). All remaining counts and allegations were dismissed. The plea agreement recognized that Garcia could challenge the validity of his juvenile strike prior and provided an alternate sentence if it was later determined to be invalid. At sentencing the trial court declined to strike the prior juvenile adjudication and imposed a 10-year, 4 month prison sentence.
Garcia appeals contending the use of his prior juvenile adjudication as a strike under section 667, subdivisions (b) through (i) violates his Sixth Amendment rights under Apprendi v. New Jersey (2000) 530 U.S. 466, and denies him equal protection. While this appeal has been pending our Supreme Court issued its opinion in People v. Nguyen (July 2, 2009, S154847) Cal.4th (2009 Cal. LEXIS 6020) (Nguyen). We will follow the direction of the Supreme Court and affirm the judgment. (Auto Equity Sales,Inc. v. Superior Court (1962) 57 Cal.2d 450.)

Petitioner and appellant Lisa Golden (Mother) appeals the 2007 orders of the family law court that set the amount of child support that she should pay for her minor child Andrea Golden-Lasher, whose father and custodial parent is respondent Andrew Lasher (Father). In April 2006, Mother brought a motion to modify a previous order of child support, and she later sought relief from arrearages and to set aside earlier orders. (Uniform Interstate Family Support Act, Fam. Code, 4900 et seq.; all further statutory references are to this code unless otherwise noted.) Motions to compel discovery were brought by both sides and in December of 2006, the court ordered Mother to provide further responses, which she did. (Code Civ. Proc., 2030.300.)

This case requires us to determine whether the trial court properly granted summary judgment on a dangerous condition of public property claim arising from a fatal injury traffic accident in which an inattentive and intoxicated driver hit a woman with his car as she and two companions were crossing a lighted street at night in a marked crosswalk. We conclude the trial court properly granted summary judgment under the circumstances and affirm the judgment.

Jae Hee Lee appeals an order denying her motion for attorney fees in an action filed against her by Scott Kim, Yumi Ito, and Ginza Spa (collectively plaintiffs).[1] After Ito dismissed one of her causes of action and the trial court granted summary adjudication or nonsuit with regard to all of the plaintiffs' remaining causes of action, Lee filed a motion seeking $184,200 in attorney fees. Lee requested that the court order the plaintiffs to pay the fees pursuant to Code of Civil Procedure section 2033.420.[2] Section 2033.420 provides that if a party fails to admit the truth of a matter in response to a request for admission, the requesting party may seek to recover attorney fees incurred in proving the truth of a matter. ( 2033.420, subd. (a).)

An amended information charged defendant and appellant Jesus Aguilar with (1) attempted, willful, premeditated murder in violation of Penal Code[1]sections 664 and 187, subdivision (a) (count 1); (2) willful discharge of a firearm in a grossly negligent manner in violation of section 246.3 (count 2); (3) making criminal threats in violation of section 422 (count 3); and (4) assault with a firearm in violation of section 245, subdivision (a) (count 4). As to counts 1, 2 and 4, it was also alleged that defendant had personally inflicted great bodily injury within the meaning of sections 12022.7 and 1192.7, subdivision (c)(8). As to count 1, it was further alleged that defendant had personally and intentionally discharged a firearm and caused great bodily injury within the meaning of section 12022.53, subdivision (d) and section 1192.7, subdivision (c)(8). As to count 4, it was further alleged that defendant had personally used a firearm within the meaning of section 12022.5, subdivision (a) and section 1192.7, subdivision (c)(8).
Prior to trial, the prosecutor filed a motion to admit defendants prior bad act, firing shots into the air near the victim a few weeks prior to the instant offenses, under Evidence Code section 1101, subdivision (b). The trial court granted the motion. Moreover, following an Evidence Code section 402 hearing, the trial court found that defendants statement to police was admissible because he had been properly advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) in Spanish, and waived those rights prior to making his statement.

Defendant and appellant Stephanie Marie Evans appeals from a jury verdict for transportation of marijuana (Health & Saf. Code, 11360, subd. (a)),[1]being under the influence of a controlled substance ( 11550, subd. (a)), and possession of marijuana for sale ( 11359). Court affirm.

Defendant Edward Larry Thompson, II, challenges the denial of his motion to suppress evidence. Thompson argues that his detention in a high-crime area, while he was wearing gang-related clothing, after attempting to evade officers, was unreasonable and the evidence seized should be suppressed. We find Thompsons detention did not run afoul of the Fourth Amendment to the United States Constitution. The detaining officers had reasonable suspicion that criminal activity was afoot and that Thompson was engaged in that activity. Finding the detention reasonable, Court affirm the judgment.

Petitioner (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her sons R.M. and J.M. Court will deny the petition.

Cindy L. (Mother) appeals from the courts November 20, 2008 order appointing the Court Appointed Special Advocate (CASA) of Paige L. (Child) as the holder of Childs educational rights and limiting Mothers right to make educational decisions for Child. Court affirm.

Tony Anthony Civitillo appeals from a judgment of conviction of felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)) following a jury trial.[1] Defendant admitted being a felon based upon two felony convictions[2] and admitted two prison prior enhancement allegations ( 667.5, subd. (b)), which the court subsequently struck pursuant to section 1385. Defendant was sentenced to a total prison term of two years.

On appeal, defendant argues that he was unlawfully convicted of an offense not shown by the evidence adduced at the preliminary hearing. If this contention was not preserved for appellate review because his trial counsel failed to object below, he asserts an ineffective assistance of counsel claim. In addition, defendant raises an instructional error and he challenges the "CJAF" fee imposed by the court.
Court agree that trial counsel rendered ineffective counsel in failing to protect defendant against conviction of an offense not shown by the evidence taken at the preliminary examination. Court reverse.

After a jury trial, John Lyndon Dean was convicted of battery with serious bodily injury and assault by means of force likely to cause great bodily injury. Defendant contends the trial court erred in allowing the victim to testify because her mental disability rendered her incompetent. Defendant also argues that this error and his trial counsels failure to object to it deprived him of his constitutionally guaranteed rights to confrontation, a reliable verdict, and effective assistance of counsel. Court find these contentions lack merit and affirm the judgment.

Koorosh Kamkari appeals from an order sustaining respondents demurrer to his complaint for breach of fiduciary duty and violations of the California Corporations Code and dismissing his complaint. His claims against Sonic Solutions and a number of its officers and directors are based on allegations that the defendants made misrepresentations and failed to disclose material facts regarding improper backdating of stock options; that the backdating practices resulted in overstatement of the companys value; and that, as a result, appellant and class members paid artificially inflated prices for their shares of Sonic stock. Appellant argues the trial court erred in concluding that certain of his claims were preempted under federal law and others were derivative. Court affirm.

Pursuant to a negotiated disposition, appellant Chad Edward Estis pleaded no contest as charged to robbery as a serious felony, conditioned on receiving a sentence of no more than six years if the alleged prior juvenile adjudication were valid and not to exceed three years if the prior were invalid or stricken. Over appellants objection under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),[1] the court found the prior juvenile adjudication to be a true and valid strike. It sentenced appellant to a four-year state prison term (double the two-year lower term for robbery). Appellant challenges the use of the prior juvenile adjudication to enhance his sentence because he had no right to a jury trial in that earlier juvenile proceeding. Court affirm.

Appellant Tsegai Haile filed an initial and an amended notice of appeal purporting to challenge several trial court orders. In a June 2009 decision, we dismissed the entire appeal for lack of jurisdiction. (Zula, LLC v. Haile (June 10, 2009, A123759) [nonpub. opn.].) We granted rehearing on our own motion after we determined that one aspect of the appealthe challenge to an order denying Hailes motion to disqualify Zulas counselis properly before us. After rehearing, we again find that most of the purported appeal must be dismissed for lack of jurisdiction, either because the underlying orders are not appealable or because the notice of appeal was untimely. The appeal from the order denying the motion to disqualify opposing counsel is properly before us, but Court affirm that order on its merits.