CA Unpub Decisions

Defendant Kenneth Carl Henry appeals from a judgment entered after the jury returned a guilty verdict against him for count 1, solicitation of prostitution (Pen. Code, 647, subd. (b)).[1] Defendant admitted serving six prior prison terms. ( 667.5, subd. (b).) The jury found true the allegation that defendant had a prior conviction for violation of section 647, subdivision (b), for which a blood test was administered pursuant to section 1202.6, yielding a positive result of which defendant was informed pursuant to section 647f. The trial court sentenced defendant to six years in state prison, consisting of the upper term of three years, plus three one year terms for three of the prison term priors, to be run consecutively. Sentence on the remaining prison priors was stayed. Defendant contends that the trial court abused its discretion when it admitted evidence of defendants prior convictions. Court disagree and affirm the judgment.

In September 2007, respondent Los Angeles County Department of Children and Family Services (the Department) commenced this action by filing a petition pursuant to Welfare and Institutions Code section 300[1] regarding Andrew M. The petition sought to remove Andrew from the custody of appellant Robert M. (father) on, among other grounds, that father sexually and physically abused Andrew. On May 19, 2008, the juvenile court sustained the Departments petition and asserted jurisdiction over the matter. Almost a year later, we issued an opinion (In re Andrew M. (Apr. 7, 2009, B208640) [nonpubl. opn.]) (the first opinion) affirming the juvenile courts May 19, 2008, jurisdictional and dispositional orders. In the first opinion we held, inter alia, that substantial evidence supported the juvenile courts findings that father sexually and physically abused Andrew.

Jeremy James White was sentenced to 15 years state prison after pleading guilty to gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)), sale or transportation of marijuana (Health & Saf. Code, 11360, subd. (a)), and admitting that he personally inflicted great bodily injury on a peace officer within the meaning of Penal Code section 12022.7, subdivision (b). He appeals, contending that the trial court abused its discretion in imposing a 10 year upper term for gross vehicular manslaughter while intoxicated. Court affirm.

Defendant and appellant Fleming Gray (defendant) appeals from the trial courts order granting the petition of plaintiff and respondent Ye Olde Kings Head (plaintiff) for an injunction under Code of Civil Procedure section 527.8[1]prohibiting defendant from contacting, assaulting, stalking, or following plaintiffs general manager and employee, Peter Dolan (Dolan), and ordering defendant to stay at least 100 yards away from the restaurant. Defendant contends the trial court erred because his conduct did not warrant the issuance of an injunction under section 527.8, and because the injunction is overbroad and violates defendants federal and state constitutional rights of free speech. Defendant further contends the doctrines of res judicata and collateral estoppel barred plaintiff from obtaining relief in this action after the denial of plaintiffs petition for a temporary restraining order against defendant in a separate action. Court affirm the trial courts order issuing the injunction.

While standing on the sidewalk at the corner of a Los Angeles intersection, plaintiff Minerva Miraflores was struck by a car and suffered severe injuries. As a result, plaintiff sued the person driving the car, two other individuals and the City of Los Angeles (City). After plaintiffs fifth attempt to state a cause of action against the City, the trial court sustained the Citys demurrer without leave to amend, finding plaintiff could not state a cognizable claim. Plaintiff appealed. It is undisputed that, as to her claims against the City, plaintiff was required to comply with the California Tort Claims Act (Tort Claims Act or Act). (Gov. Code, 900 et seq.) In addition to arguments made in the trial court, the City argues for the first time on appeal that plaintiff failed to comply with the Acts mandatory timeframe for filing suit. Court agree with the City and conclude, as a matter of law, plaintiffs action against the City is untimely. Accordingly, Court affirm the judgment.

The Labor Commissioner awarded plaintiff Arvind Shankar $49,440.55 in wages, interest, and other compensation from defendant Chu Sarang Medical, Inc. (CSM), and the award was entered as a judgment. Shankar appeals from a September 8, 2008 order denying his motion to amend the judgment to add Jeffrey Chu as an additional defendant and judgment debtor, as the alter ego of defendant CSM. The trial court failed to address the merits of Shankars motion, erroneously concluding that the alter ego issue was decided by the Labor Commissioner and that any unresolved issues between the parties should be resolved in another pending action between the parties. Accordingly, Court reverse the order and remand to the trial court to consider the merits of the motion.

Felix Gallardo appeals from the judgment entered upon his convictions by jury of making criminal threats (Pen. Code, 422, count 1)[1]and stalking ( 646.9, subd. (a), count 2). The trial court sentenced him to the upper term of three years on each count, with count 2 to run concurrently with count 1. Defendant contends that the trial court erred in failing to stay execution of sentence on one of his convictions pursuant to section 654.
Court modify the sentence and otherwise affirm the judgment.

Plaintiffs and respondents Joseph Sally and Keith Shiles (plaintiffs),[1]owners of a unit in a condominium complex, sued defendant and appellant Frederick Lane (defendant), who also owned a unit in the complex, seeking to quiet title to a parking space in the complex (space 26). Defendant cross-complained, seeking to impose an exclusive prescriptive easement in his favor on space 26. Following a bench trial, the trial court ruled in favor of plaintiffs and against defendant, finding that the facts were undisputed and concluding that defendant was not entitled to the exclusive prescriptive easement that he sought. On appeal, defendant concedes that he was not entitled to an exclusive prescriptive easement, but argues that the trial court should have found that he was entitled to a nonexclusive easement to space 26. We hold that defendant was not entitled to an exclusive prescriptive easement as a matter of law and that he forfeited any contention that he was entitled to a nonexclusive prescriptive easement by failing to specify and pursue that alternative claim in the trial court.

Following a jury trial, defendant and appellant Alexander Alonzo (defendant) was convicted, inter alia, of two counts of premeditated first degree murder. On appeal, defendant contends there was insufficient evidence of deliberation and premeditation to support the first degree murder convictions and the jury instructions relating to first degree murder were inadequate because they failed to advise the jury that, pursuant to Penal Code section 1097,[1]any reasonable doubt as to the degree of murder must be resolved in defendants favor, i.e., if the jury entertained a reasonable doubt that the murders were of the first degree, they could only find defendant guilty of murder in the second degree.
Court hold that the evidence in support of the jurys finding of deliberation and premeditation as to both murder counts was sufficient and that the jury instructions adequately advised the jury that defendant could only be guilty of first degree murder if a unanimous jury found all the elements of that crime, including deliberation and premeditation, beyond a reasonable doubt. Court therefore affirm the judgments of conviction.

Minor E.G. appeals from the order of wardship entered following a finding that he possessed marijuana for sale in violation of Health and Safety Code section 11359. (All further statutory references pertain to the Health and Safety Code unless otherwise noted.) The minor contends that insufficient evidence supports this finding and that the trial court erred by refusing his request for appointment of an expert. Court affirm.

Ricky Stevenson (defendant) appeals from a judgment entered after a jury returned a verdict of guilt against him on count 3, making criminal threats (Pen. Code, 422).[1] The jury found him not guilty on both count 1, attempted, willful, deliberate, premeditated murder ( 664, 187, subd. (a)) and count 2, assault with a firearm ( 245, subd. (a)(2)). After defendant admitted a prior conviction under the Three Strikes law, the trial court sentenced defendant to four years (midterm doubled) on count 3. Defendant contends that the evidence was insufficient to convict him of the crime of making criminal threats. Court disagree and affirm the judgment.

The court found that appellant M.W., a male age 17, committed second degree robbery. M.W. was declared a ward of the court and the court imposed home probation. Court reject M.W.s sole contention on appeal that the evidence is insufficient to sustain the judgment and therefore affirm the judgment.

A jury convicted defendant and appellant defendant Richard Saxton (defendant) of two counts of sale of a controlled substance (Health & Saf. Code, 11352, subd. (a)). Defendants appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) raising no issues and requesting that this court independently review the record of defendants trial. Defendant filed a supplemental brief and a letter brief contending that the trial court erred by (1) denying defendants request for a continuance to obtain the testimony of a former codefendant, (2) admitting a police officers in-court identification of defendant as the perpetrator, and (3) admitting certain photographic evidence. Defendant also asserted that his appellate counsel rendered ineffective assistance. Court have reviewed the record and requested and received additional briefing with respect to one of the issues raised by defendant. Court now affirm the judgment.

In 1998, after an Orange County jury in Superior Court case number 97HF0802 convicted Jerome Brown of first degree burglary, it was found true that Brown had previously been convicted of strike priors under Penal Code section 667, the Three Strikes law. He received a sentence of 25 years to life in prison. One of the prior felony convictions used as a strike was from 1974 in Los Angeles County Superior Court case number A126761, when Brown pleaded guilty to burglary in violation of Penal Code section 459. In September 2008, Brown filed the petition in propria persona for writ of error coram nobis which is before us on this appeal from the Los Angeles Superior Court under case number A126761. Brown contends that his 1974 conviction did not qualify as a strike because it was for second degree, not first degree, burglary. The superior court denied the petition on the merits in a minute order dated December 8, 2008. The appeal is DISMISSED.