CA Unpub Decisions

In this matter, we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) Although the procedural posture of the matter is somewhat confusing, the essential error was made by the trial court on May 19, 2009, when it found that the fact that a necessary witness would be serving as an investigating officer in another case for severalweeks justified a delay in petitioners trial for the full period during which the other trial was expected to last.

Appellant Curtis Devon Perry appeals from the judgment entered following a jury trial in which he was convicted of three counts of making criminal threats against Bakersfield Police Officers Jerry Whisenhunt and William Caughell (Pen. Code, 422),[1]one count of resisting arrest ( 148, subd. (a)(1)), and one count of challenging another to fight in public ( 415, subd. (1)) and a bifurcated court trial in which he was found to have sustained two prior prison terms within the meaning of section 667.5, subdivision (b). Appellant was sentenced to a total prison term of five years eight months. On appeal, appellant contends there was insufficient evidence to support his conviction for making a criminal threat against Officer Whisenhunt as alleged in count 1. Court will find merit in appellants contention and reverse appellants conviction on count 1. In all other respects, Court will affirm the judgment.

In 2008, appellant Paul Andrew Cash, then aged age 21, was convicted after jury trial of 10 counts of committing lewd acts on his half-siblings D.S. (hereafter D.) and S.S. (hereafter S.), who were both under the age of 14.[1] Multiple victim and substantial sexual conduct allegations were found true in connection with all counts. (Pen. Code, 288, subd. (a), 667.61, subds. (b) & (e)(5), 1203.066, subd. (a)(7) & (a)(8).) Appellant was sentenced to an aggregate term of 75-years-to-life imprisonment, calculated as follows: consecutive terms of 15 years to life for counts 1, 4, 8, 9, 11 and concurrent terms of 15 years to life for counts 2, 3, 5, 7. This was not appellants first criminal proceeding arising from his sexual abuse of younger family members. In 2000, a juvenile criminal wardship petition was found true alleging that appellant, then aged 14, sexually molested D., who was then about five years old, and a male cousin J.S. (hereafter J.), who was then about eight years old. Also, another of appellants younger half-brothers, Z.S. (hereafter Z.), reported that when he was about eight years old appellant sexually molested him.

This is an appeal by a pro se litigant from the trial courts dismissal of his complaint after it sustained a defense demurrer. Plaintiff Jamar James Evans contends the trial court erred in sustaining without leave to amend the demurrer by defendants Superior Court of California, County of Merced (the Merced court), and two judges on that court, the Honorable Ronald Hansen and the Honorable Hugh Flanagan (collectively defendants). Court will affirm.

Governor Arnold Schwarzenegger appeals from the superior court's order granting respondent Linda Lee Smith's petition for writ of habeas corpus and vacating the Governor's 2007 decision to reverse the 2007 determination by the Board of Parole Hearings (Board) that she is suitable for parole. (Pen.Code, 1507.) We reverse the superior court's order because some evidence supports the Governor's conclusion that respondent is unsuitable for parole because she is currently dangerous. That evidence consists of (1) the aggravated circumstances of the commitment offense, and (2) respondent's lack of insight into her criminal behavior and failure to take responsibility for her past violent conduct.
This is the Governor's second appeal in this matter. In February 2009 we reversed the same superior court's order granting respondent's petition for writ of habeas corpus and vacating the Governor's 2006 decision to reverse the Board's 2006 determination that she is suitable for parole. (In re Smith (2009) 171 Cal.App.4th 1631 (Smith).) The order from which the Governor is presently appealing was made in December 2008, before the filing of our prior opinion.

Convicted of a number of counts of robbery and burglary, defendants Clarence and Tyron Daniels appeal,[1]arguing: (1) there was insufficient evidence to support their convictions of robbing J. C. (count 2); and (2) the trial court erred in imposing the upper term for robbery (count 1) based on facts not found by a jury or admitted by them. Clarence also argues that his conviction for possession of stolen property (count 5) must be reversed because he was convicted of stealing the same property and that his abstract of judgment must be amended to reflect a concurrent sentence on one of his burglary convictions (count 4). Agreeing with Clarences latter two arguments, we will reverse his conviction for possession of stolen property (count 5) and direct the trial court to correct the abstracts of judgment for both defendants to reflect concurrent sentences on count 4. Finding no merit in defendants remaining arguments, Court will affirm the judgments in all other respects.

A modification decision.

In this transactional malpractice appeal by M & M Installations, Inc. (M&M or plaintiff), we consider whether the negligence of the lawyers Cook Brown, LLP and Ronald W. Brown (defendants) caused plaintiffs damages. M&M, a family-owned business engaged in the installation of flooring materials, sued its former labor lawyers Cook Brown, LLP and Ronald W. Brown for malpractice after it followed defendants advice to repudiate its collective bargaining relationship with a union and was subsequently assessed pension withdrawal liability of over $3.5 million under certain provisions of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. 1301 et seq.) added by the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) (Pub. L. No. 96-364, 1 (Sept. 26, 1980) 94 Stat. 1208; 29 U.S.C. 1381, 1391.) Defendants sought summary judgment on the ground plaintiff could not establish the elements of causation or damages. The trial court granted summary judgment. Plaintiff appeals, contending the trial court erred both procedurally and substantively in granting defendants motion. Court affirm the judgment.

A jury convicted defendant Antonio Garcia-Sanchez of three counts of attempted murder and one count of street terrorism, and found several enhancement allegations true, including that the attempted murders were committed for the benefit of a criminal street gang and that defendant (gang principal) personally and intentionally discharged a firearm resulting in great bodily injury. (Pen. Code, 664/187, 186.22, subds. (a), (b)(1), 12022.53, subds. (c), (d), (e)(1).)[1] The jury acquitted defendant of three alternative counts of assault with a firearm. ( 245, subd. (a)(2).) The jury was instructed to so acquit should it convict defendant of the three attempted murders. Sentenced to a state prison term of nearly 97 years to life (based largely on the firearm enhancements), defendant appeals. He contends that the prosecutor engaged in misconduct at trial and also withheld evidence implicating Juan Rayo in the shooting, and that the trial court erroneously denied defendants motion for new trial based on newly discovered evidence that Rayo committed the shooting. Defendant also contends the cumulative effect of the errors denied him due process.

After the trial court denied his motion to suppress evidence, a jury found defendant Kim Stanley Lee guilty of possession of methamphetamine. Defendant admitted alleged enhancements and the trial court sentenced him to five years in state prison. Defendant appeals, contending: (1) the trial court erred in denying his suppression motion; (2) the trial court erred in admitting evidence of an uncharged crime for possession of methamphetamine; (3) the prosecutor committed misconduct in closing argument; and (4) his admissions to the enhancement allegations were not made voluntarily and intelligently. Court reject these contentions and affirm the judgment.

E.O. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, 366.26) as to her son, U.B.[1] She contends the court committed prejudicial error because there is no evidence anyone asked the childs alleged father whether he had Indian heritage for purposes of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). On review, Court will affirm.

A jury convicted defendant Roman Galivo Flores, Jr., of two counts of first degree robbery in concert (Pen. Code, 211, 212.5, subd. (a), 213, subd. (a)(1))[1]; three counts of false imprisonment by violence ( 236, 237, subd. (a)); and one count of first degree residential burglary ( 459, 460, subd. (a)). The jury found defendant was armed with a firearm during the commission of all counts. The jury further found a nonaccomplice was present during commission of the residential burglary. The court sentenced defendant to an aggregate term of 10 years and four months. Defendants primary contention on appeal is that the court erred by failing to instruct the jury on duress. Court affirm the judgment, but direct the modification of a minute order to correct a clerical error.

Defendant Herbert P. (father) appeals from an order terminating his parental rights over his two-year-old son, Isaiah P., and placing Isaiah for adoption. He contends the court wrongly failed to apply the statutory benefit exception that allows a court to forgo terminating parental rights when selecting a permanent plan for an adoptable child. (Welf. & Inst. Code, 366.26, subd. (c)(1)(B)(i).) While father showed genuine affection for Isaiah, he failed to develop a significant parental relationship that would benefit Isaiah more than the stability of adoption. Court affirm.

In these consolidated appeals, defendant and appellant Kevin R. McLean (McLean) appeals the trial courts orders denying his motions to vacate a 1999 default judgment against him. McLean contends the judgment is void because plaintiffs failed to file a statement of damages conforming to Section 425.11 of the Code of Civil Procedure[1] prior to entry of default, and because notice of default does not meet the due process requirements of section 580. Having concluded McLeans contentions lack merit, Court affirm.