CA Unpub Decisions

Defendant Antonio Dione Allison and his friend Walter Bell shot David M. and Joshua McClaine. David and Joshua had gotten into a fight with defendants mother, Tina. The fight turned physical, with both Tina and the McClaines sustaining injuries. Tina eventually called Bell to come get her, and he threatened the McClaines with a shotgun. About one hour later, officers were called to the scene. David had been shot in the face and Joshua in the chest. Both David and Joshua were shot with a shotgun. David lost an eye as a result of his injuries, and Joshua has a shotgun projectile lodged in or near his heart that cannot be removed. Defendant was charged with two counts of attempted murder, residential burglary, and possession of a firearm by a convicted felon. As to both attempted murder counts, it was further alleged defendant had personally discharged a firearm, personally discharged a firearm causing great bodily injury, personally used a firearm, and personally inflicted great bodily injury upon the victim. As to the burglary count, it was also alleged defendant had personally used a shotgun and caused bodily injury, causing the burglary to become both a serious and violent felony. In addition, two prior strike convictions were alleged, as well as one prior prison term.
The judgment is affirmed.

According to the probation report to which the parties stipulated as a factual basis, defendant Stacy Antoinette Little sold methamphetamine to a monitored undercover agent at the Colusa Casino on two different occasions. A complaint charged her with two counts of selling methamphetamine. She waived her right to a preliminary hearing, and the parties stipulated to deeming the complaint to be the information.
We have, however, found several minor errors that require correction. The order of probation properly precluded her from knowingly associating with probationers or parolees in condition number 10 but failed to include this essential element of knowledge in condition number 11 (relating to association with drug users or being places where drugs are present) or condition number 18 (relating to being in the presence of an armed person or in any home or vehicle in which deadly or dangerous weapons are present). We therefore direct the trial court to amend the order in these respects. (In re Sheena K. (2007) 40 Cal.4th 875, 885-886, 891.) Defendant notes that the order also recites the incorrect statutory basis for the $252 lab analysis fee in condition number 14(d), but does not dispute its applicability. The trial court in amending the order can change the cited reference from Penal Code section 1203.1b to Health and Safety Code section 11372.5.

In February 2008, defendant Michael Guther was on informal searchable probation. Detectives, familiar with defendant and his status on probation, conducted a probation search of his apartment. A male roommate who was behaving suspiciously outside the apartment was arrested for possessing rock cocaine. When the detective knocked on the door of defendants apartment, a female roommate answered and told them defendant was not home. They explained their intent to conduct a probation search, and she directed them to the bedroom defendant shared with his girlfriend. A detective obtained the roommates consent to search her bedroom as well. In a ceiling air vent in the bedroom defendant shared with his girlfriend, detectives found a baggie containing 32.7 grams of powdered cocaine. They also found 2.99 grams of rock cocaine in the other bedroom packaged in baggies. Defendant was charged with possessing cocaine for sale and an enhancement that he committed the offense while on bail. He moved to suppress the seized cocaine. After hearing the facts Court have related above, the trial court denied the motion.

On December 25, 2005, defendant Joshua Dustin Sparks arrived home and argued with his spouse. Defendant was extremely intoxicated. The verbal argument escalated and defendant hit and pushed the victim. The victims 13-year-old son tried to intervene but defendant pushed him away. Defendant continued to hit the victim but stopped when the police arrived. The victim suffered a bump and redness on her forehead.
Defendant entered a no contest plea to spousal abuse (Pen. Code, 273.5, subd. (a)) in exchange for no state prison at the outset and the dismissal of the remaining counts. On June 12, 2006, the court granted probation subject to certain terms and conditions including that he report to his probation officer, enroll in and complete an alcohol program, obey all laws, not annoy or harass the victim, seek and maintain employment, and complete 80 hours in an adult offender work program.

In 2005, defendant Cory Brent Madron pled no contest to felony unlawful use of an access card. (Pen. Code, 484g.) A preplea report reflects that after he no longer worked for an employer, defendant continued to use the employers fueling access card, running up $13,645 in unauthorized expenditures. In accordance with the plea agreement, he was placed on probation on conditions including that he report to the probation department, pay restitution and various fees and fines, and serve periods of time in jail and in an alternative work program. Appellant admitted violating his probation in 2006 and again in 2007, by not reporting to the probation department and failing to complete work program. On both occasions, probation was reinstated. During proceedings related to the second reinstatement of probation, defendant waived previous custody credits, and the court suspended the execution of a two-year term in state prison. In March 2009, defendant again admitted violating probation, this time by failing to complete his work program hours as agreed and by testing positive for marijuana. The trial court imposed the previously suspended two-year term in state prison.

Defendant Kao Saelee entered a negotiated plea of no contest to recklessly evading a police officer (Veh. Code, 2800.2, subd. (a)) and driving a motor vehicle while under the influence of alcohol or a drug and inflicting bodily injury (Veh. Code, 23153, subd. (a)). The trial court suspended imposition of sentence and placed defendant on five years probation on various terms and conditions. Defendant contends, and the People concede, errors in one of the conditions of probation. Court accept the concession and shall direct the probation order to be amended.

A jury convicted Luis D. Baltazar of second degree murder. (Pen. Code, 187, subd. (a).)[1] The jury also found Baltazar committed the offense for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(4)), and that he personally discharged a firearm proximately causing the victim's death ( 12022.53, subd. (d)). Baltazar admitted a prior strike conviction allegation (a juvenile adjudication for robbery), and the trial court sentenced him to prison for 55 years to life--15 years to life for second degree murder ( 187, subd. (a)), doubled pursuant to the three strikes law ( 667, subds. (b) - (i)), and 25 years to life for personally discharging a firearm proximately causing the victim's death ( 12022.53, subd. (d)).
On May 5, 2008, this court filed an opinion reversing the sentence in this case and remanding the matter to the trial court for resentencing. On July 16, 2008, the California Supreme Court granted a petition for review and on September 9, 2009, issued the following order: "The above entitled matter is transferred to the originating Court of Appeal with directions to vacate its decision and reconsider the cause in light of People v. Nguyen (2009) 46 Cal.4th 1007." In compliance with the order of the Supreme Court, the opinion of this court filed May 5, 2008, is vacated and Court issue this new opinion.

The plaintiffs and appellants in this action are M&F Fishing, Inc. and a fishing vessel it owns known as the M/V Koorale (the Koorale) that operates out of American Samoa.[1] In September 2002, the High Court of American Samoa (the Samoan court) ordered the "arrest" of the Koorale in the harbor at Pago Pago as security for a personal injury claim under the Jones Act (46 U.S.C.App. 688) by one of its crewmembers, and appointed defendant George Copitas to act as substitute custodian of the vessel during its arrest period. In the present action, M&F alleged that Copitas's negligence as substitute custodian damaged the Koorale. Court affirm.

A jury convicted Aweis Haji of two counts of lewd and lascivious acts on a child (Pen. Code, 288, subd. (a)).[1] One of these counts alleged Haji penetrated the anus of the child, and the other count alleged Haji penetrated the vagina of the child. With respect to the count involving anal penetration, the jury also found that Haji had substantial sexual conduct with the victim ( 1203.066, subd. (a)(8)) and caused her bodily injury (id., subd. (a)(2)). The jury did not make those findings with respect to the other section 288, subdivision (a) count.[2] The trial court sentenced Haji to the upper term of eight years on the section 288, subdivision (a) count involving anal penetration and a consecutive two-year term on the other section 288, subdivision (a) count. Haji appeals, contending there was insufficient evidence to support his conviction on the section 288, subdivision (a) count involving molestation of the vaginal area. Haji also contends the court committed instructional error and his sentence violated section 654's prohibition against double punishment.

Jack D. Zemer appeals from a judgment entered against him in his lawsuit against Daniel Schreiber and David Perez (sometimes defendants) following a trial conducted by a referee stipulated to by the parties. (Code Civ. Proc., 638, subd. (a).) Zemer contends the Referee erred in ruling that (1) an agreement entered into by the parties was not sufficiently definite and certain to constitute a binding contract, and (2) Zemer is not entitled to equitable relief that would recognize such an agreement was created on the basis of promissory estoppel. Court conclude that the Referee's decision is well supported by the record and applicable law, because these parties did not create a binding agreement and Zemer's claim of promissory estoppel is without merit. Court affirm the judgment.

While working for a subsidiary of Valley Harvesting and Packing (Valley Harvesting), Ricardo Razo claimed to have suffered various injuries after bumping his head on a metal door at his place of employment. After Razo initiated a workers' compensation claim based on the alleged injury, Valley Harvesting made various payments related to that claim to third parties on Razo's behalf. Valley Harvesting also provided Razo with temporary and permanent disability payments. A jury found Razo guilty of two counts of insurance fraud (Ins. Code, 1871.4, subd. (a)(1), Pen. Code, 550, subd. (a)(1))[1](counts 1 and 2), and grand theft by false pretenses ( 487, subd. (a)) (count 3). The trial court placed Razo on formal probation for three years, subject to various conditions, including that he serve 240 days in jail and pay $53,109.46 in restitution to Valley Harvesting. On appeal, Razo claims that the trial court erred by failing to instruct the jury pursuant to CALCRIM No. 224 regarding the jury's consideration of circumstantial evidence. Razo also contends that the trial court abused its discretion in refusing to offset the amount of victim restitution awarded to Valley Harvesting by the amount the company expended on Razo's alleged legitimate workplace injury, unrelated to any fraud. Court affirm the judgment.

Respondent Darren Quinn petitioned the trial court to confirm an arbitration award. Appellants Judith and Dennis Schuelke opposed and petitioned to vacate the award. The trial court granted the petition to confirm. It denied the Schuelkes' motion to vacate the award. The Scheulkes contend the trial court erred because the arbitrator substantially prejudiced their rights by: (1) improperly giving them erroneous legal advice that they did not need expert witness testimony; (2) refusing to consider their evidence supporting the malpractice claim; and (3) refusing to grant them a continuance to obtain expert testimony. Court affirm the judgment.

Plaintiffs Roy Evans and Arthea LaFrades (together plaintiffs) each owned homes in which shower pans manufactured by defendant Lasco Bathware, Inc. (Lasco) were installed. Plaintiffs' action against Lasco alleged the shower pans suffered from design defects that resulted in water leakage, and the leakage caused damage to adjacent building components. Plaintiffs' fourth amended complaint (FAC), styled as a proposed class action lawsuit, alleged two causes of action against Lasco: a claim for strict products liability, and a claim for negligence. The present appeal challenges the trial court order denying class certification. Plaintiffs assert the trial court abused its discretion when it denied their motion for class certification.

This case requires us to determine whether the trial court properly granted summary judgment to defendant attorneys in a legal malpractice action after finding the plaintiff could not establish that, but for the attorneys' alleged negligence, the underlying litigation would not have been dismissed under the primary assumption of the risk doctrine. Court conclude the trial court properly granted summary judgment and affirm the judgment.