CA Unpub Decisions

A jury convicted defendant Nicholas Elton Dean of three counts: count 1, receiving stolen property (Pen. Code, 496, subd. (a));[1] count 2, forgery using an access card ( 484f, subd. (b)); and count 3, theft of access card account information ( 484e, subd. (d)). In a bifurcated, non-jury trial, the court found one prior conviction under the Three Strikes law true ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and also found true the allegation that defendant was released on bail or on his own recognizance in another case when he committed the instant offenses ( 12022.1).[2] The court sentenced defendant to 9 years, 4 months: on count 1 the court imposed the principal term of 6 years for receiving stolen property (double the high term of 3 years), plus 2 years for the on-bail enhancement, a total of 8 years, and on count 2, a consecutive term of 16 months (double the 8-month mid-term). On count 3, the court ruled (and the prosecution conceded) that having imposed sentence on count 2, the court was required by section 654 to stay the sentence on count 3.

Plaintiff Dr. Peter Vidikan suffered through a horrendous home remodel. In addition to suing various contractors and other participants in the remodel nightmare, Dr. Vidikan sued his longtime therapist, Dr. Mason Sommers, who had (during the course of Dr. Vidikans therapy) a close personal and business relationship with the individual responsible for designing and managing the remodel. Of his 22 causes of action, Dr. Vidikan alleged three against Dr. Sommers, all of which sound in professional negligence. The trial court granted summary judgment in favor of Dr. Sommers. The court held the medical malpractice statute of limitations embodied in Code of Civil Procedure, section 340.5 (section 340.5) barred the claims against Dr. Sommers. Dr. Vidikan appealed and we affirm.

Defendant Alisa Spitzberg appeals from a three-year restraining order under Code of Civil Procedure section 527.6, enjoining her from harassing plaintiff Mathilde Notaro and three friends who lived with Notaro. Because substantial evidence supports the restraining order and Spitzberg fails to support her claims of improper conduct, error, and abuse of discretion, Court affirm the order.

Defendant Jerry Kohl (Kohl) owned Leegin Creative Leather Products, Inc. (Leegin) which manufactured and sold items under its Brighton trademark. Plaintiff Stephen Slaughter (Slaughter) approached Kohl with a concept for developing retail stores under the name Brighton Collectibles. Effective July 1, 1999, Kohl and defendant Corazon Retail Corp. (Corazon) entered into a Store Management Agreement with Slaughter and a corporation he owned and controlled, plaintiff S&J Shoes, Inc. (S&J) to develop the retail stores (1999 Agreement). Kohl had formed Corazon for this purpose, and it was owned and controlled by Kohl and his wife. Court affirm.

Defendant Robert Carrillo appeals the judgment entered following a jury trial in which he was convicted of assault with a firearm. Although we find no prejudicial error in the conduct of the trial, we conclude that, contrary to the trial court's belief that it was required to sentence defendant to prison, it in fact had discretion to grant probation. Consequently, we reverse the judgment and remand for resentencing. By information, the Los Angeles County District Attorney charged defendant with one count each of first-degree residential robbery (Pen. Code,[1] 211), first-degree burglary ( 459), and assault with a firearm ( 245, subd. (a)(2)). Special allegations regarding personal use of a firearm were alleged as to each count. A jury convicted defendant of assault with a firearm, and found the accompanying special allegation to be true. The jury acquitted defendant of the remaining charges. The court sentenced defendant to a total prison term of five years, consisting of the low term of two years for the substantive offense, and the low term of three years for the firearm-use special allegation. Defendant timely appealed from the judgment of conviction.

A jury convicted Agustin Aguilar of driving under the influence of alcohol or drugs, and the trial court sentenced him to two years in prison. Aguilar appeals, contending that his sentence must be vacated and the case remanded for resentencing because the trial court did not obtain a probation officers report after Aguilar was convicted. Court agree, vacate Aguilars sentence, and remand for further proceedings.

Jose Luis Garcia was found guilty in a court trial of fraud, grand theft and attempted perjury for receiving vocational rehabilitation benefits under the workers compensation law. The court sentenced Garcia to an aggregate prison term of three years. Court reverse the judgment as to each count because there is no substantial evidence that the false statements Garcia made to insurance investigators were material to his eligibility for vocational rehabilitation benefits.

A jury found Ramon Ordonez guilty of one count of second degree robbery and found that Ordonez committed the offense for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in the gangs criminal conduct, in violation of Penal Code section 186.22, subdivision (b)(1). Ordonez admitted he was on bail at the time he allegedly committed the crime. The court sentenced Ordonez to a 14-year prison term. Court modify the judgment by striking the gang enhancement and affirm the judgment as modified.

Michael Joseph Curfman appeals from judgment following his conviction by jury of gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a));[1] driving under the influence causing injury (Veh. Code, 23153, subd. (a)); driving with a blood alcohol content in excess of the legal limit and causing injury (Veh. Code, 23153, subd. (b)); reckless driving with great bodily injury (Veh. Code, 23104, subd. (b)); and driving with a suspended license (Veh. Code, 14601.1, subd. (a)). The jury also found true allegations that appellant personally inflicted great bodily injury in the course of violating Vehicle Code section 23153, subdivisions (a) and (b). ( 12022.7, subd. (a).) The jury acquitted appellant of murder. ( 187, subd. (a).) The trial court sentenced appellant to the upper term of 10 years in state prison for manslaughter, imposed and stayed upper terms of 6 years for driving under the influence, 6 years for driving with a blood alcohol in excess of the legal limit, 3 years for each of the two enhancements, 3 years for reckless driving with great bodily injury, and 6 months in jail for driving with a suspended license. ( 654.)
Appellant contends that the trial court violated ex post facto principles and his constitutional right to a jury trial when it imposed upper term sentences based on the fact that he was on probation at the time he committed the offenses. He also contends that if his claims are waived, then his counsel rendered ineffective assistance. Court affirm.

Defendant Rico Cordova appeals from the judgment entered following a jury trial in which he was convicted of arson. Defendant contends that insufficient evidence supports his conviction, the trial court erred by failing to instruct upon the lesser included offense of unlawfully causing a fire, and he is entitled to one extra day of presentence custody credit. Court agree with respect to the extra day of credit but otherwise affirm.

In this action involving the Contractors State License Law (Bus. & Prof. Code, 7000 et seq.[1]), plaintiff and cross defendant Martin Stowell, doing business as Landco (Stowell), appeals from the judgment entered in favor of defendant and cross complainant Brett Markson (Markson). Court affirm.

Adrian Armando Escajeda appeals from the judgment entered following a jury trial in which he was convicted in count 1 of one count of second degree robbery (Pen. Code, 211) and in counts 2 through 4 of three counts of first degree robbery (Pen. Code, 211) with the true finding that during the commission of the four robberies, he personally used a deadly and dangerous weapon, an air gun, within the meaning of Penal Code section 12022, subdivision (b)(1). He admitted that he suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)), a serious felony within the meaning of Penal Code section 667, subdivision (a)(1), two prior felonies within the meaning of Penal Code section 1203, subdivision (e)(4), and that he served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The judgment is affirmed.

Silvino Ruiz Torrez appeals his conviction, by jury, of committing a forcible lewd act on a child (Pen. Code, 288, subd. (b)),[1] and 10 counts of committing a lewd act on a child. ( 288, subd. (a).) The trial court sentenced appellant to a term of 15 years to life on each count, with the terms to be served consecutively, for a total sentence of 165 years to life. Appellant contends his confession should have been excluded because it was obtained in violation of his rights to counsel and to remain silent. (Miranda v. Arizona (1966) 384 U.S. 436 (hereafter, Miranda).) We conclude the statement was properly admitted. At the request of both parties, we will order the abstract of judgment corrected to reflect that, with respect to counts 5 through 10, appellant was convicted of and sentenced for violating section 288, subdivision (a), rather than section 288, subdivision (b)(1). In all other respects, Court affirm.

Respondents Dennis Michael and Rene Michael brought this suit for malicious prosecution and abuse of process against their sister Tina Kaloustian, her husband Varujan Kaloustian, and the Kaloustians' lawyers, Burch, Balian & Bergstein and Barbara Bergstein ("the attorney defendants"), all of whom are appellants here. Appellants filed a special motion to strike (Code Civ. Proc., 425.16), which the trial court denied, finding that while appellants, the moving defendants, had met their "initial burden . . . to demonstrate that the challenged cause of action arises from protected activity," respondents had in turn established a probability that they would prevail on their claims. (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329; Code Civ. Proc., 425.16, subd. (b)(1).) We agree that appellants met their burden (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741), but after independent review (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999) find that respondents failed to show the probability that they would prevail. Court thus reverse.