CA Unpub Decisions

Appellant Joseph Allen Hix appeals from a judgment entered after a jury convicted him in count 1 of murder (Pen. Code, 187, subd. (a))[1]and count 2 of attempted willful, deliberate, and premeditated murder ( 664, 187, subd. (a)). The jury found true the allegation that appellant personally used a deadly and dangerous weapon, to wit, a knife in count 1 and a pen in count 2, within the meaning of section 12022, subdivision (b)(1). The jury also found true that in count 2 appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Appellant admitted that he had suffered a prior conviction for attempted murder ( 664, 187, subd. (a)) within the meaning of section 667, subdivision (a). The sanity phase jury found appellant was sane at the time of the commission of the crimes. Court find no error and affirm.

Plaintiff Dan Speck appeals from a summary judgment in favor of defendant Pacific Cycle, Inc. (Pacific) in his lawsuit alleging age discrimination, wrongful termination, breach of contract, violation of Business and Professions Code section 17200, and intentional and negligent infliction of emotional distress. Pacific contends that Specks lawsuit had no merit because Specks position in the company was eliminated and his employment was terminated as part of a company-wide reduction in force. Speck contends there was no reduction in force and that the termination was motivated by age discrimination. The evidence he produced in opposition to Pacifics motion for summary judgment, however, is insufficient to raise a triable issue of material fact. Accordingly, Court affirm the judgment.

Nicholas A. Colachis, who appears in pro. per., purports to appeal from the judgment rendered against him following a bench trial, the order denying his motion to vacate the judgment and the order awarding attorney fees. Court lack jurisdiction to consider appellants untimely appeal from the judgment and therefore dismiss the appeal from the judgment. We also lack jurisdiction to consider the order awarding attorney fees in the absence of a notice of appeal from that order. Court find no merit to appellants challenge to the order denying his motion to vacate, and therefore affirm that order.

Setrak Kirakosian appeals from the judgment entered upon his convictions by jury of possession for sale of a controlled substance (Health & Saf. Code, 11378)[1]and transportation of a controlled substance ( 11379, subd. (a)). The jury also found in a bifurcated trial that appellant suffered a prior conviction within the meaning of section 11370.2, subdivision (a) and a prior strike conviction within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court sentenced appellant to nine years in prison. Appellant contends that there is insufficient evidence to support the true finding on the prior felony strike conviction. Court reverse in part and affirm in part.

Mother appeals from a juvenile court order that terminated parental rights in her two-and-a-half-year old son, P., freeing him for adoption. Mother contends there is insufficient evidence to support the juvenile courts finding the parental relationship exception in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) does not apply. Court find sufficient evidence to support the courts order and therefore affirm.

Demetrius Jones appeals from the order denying his petition for writ of coram nobis. On March 23, 2006, appellant pled guilty to three counts of sexual penetration with a foreign object, counts 4, 5, and 6 (Pen. Code, 289, subd. (a)(1)). Pursuant to the negotiated plea, appellant was sentenced to prison for a total of 22 years, composed of the upper term of eight years for counts 4 and 5 and the middle term of six years for count 6. Additionally, charges of first degree burglary (Pen. Code, 459), kidnapping (Pen. Code, 207, subd. (a)), torture (Pen. Code, 206), forcible rape (Pen. Code, 261, subd. (a)(2)), sodomy by use of force (Pen. Code, 286, subd. (c)(2)), forcible oral copulation (Pen. Code, 288a, subd. (c)(2)), dissuading a witness by force or threat (Pen. Code, 136.1, subd. (c)(1)), and assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) were dismissed. The order appealed from is affirmed.

Dung V. Nguyen appeals from the judgment following his plea of guilty to possession of a narcotic or controlled substance, in violation of Health and Safety Code section 11350, subdivision (a) on April 18, 2008. Appellant was placed on Proposition 36 probation for three years. Upon appellants failure to fulfill his probation conditions, the trial court terminated his Proposition 36 probation and imposed sentence of the high term of three years for violation of Health and Safety Code section 11350, subdivision (a). A Penal Code section 667.5 prior felony conviction allegation was stricken. Court appointed counsel to represent him on this appeal.
After examination of the record, counsel filed an Opening Brief in which no issues were raised.

Terry Hicks appeals from the judgment entered following his plea of no contest to driving under the influence of alcohol or drugs (Veh. Code, 23152, subd. (a)) and the transportation of a controlled substance, ecstasy (Health & Saf. Code, 11379, subd. (a)), and his admissions that he previously had been convicted of driving under the influence of alcohol or drugs (Veh. Code, 23550, 23550.5) and had served a prior prison term (Pen. Code, 667.5, subd. (b)). Pursuant to a negotiated plea agreement, the trial court sentenced Hicks to two years in prison. Court affirm the judgment.

After a jury trial, defendant Andrei Ivaschenko was convicted of (1) possession of a firearm, within 10 years of a prior conviction of battery (Pen. Code, 12021, subd. (c)(1)), (2) carrying in public a loaded concealable firearm not registered and owned by the bearer (Pen. Code, 12031, subd. (a)(2)(F) [hereafter section 12031(a)(2)(F)]), (3) driving while under the influence of alcohol (Veh. Code, 23152, subd. (a)), and (4) driving when he had a blood alcohol percentage higher than 0.08 (Veh. Code, 23152, subd. (b)). In a separate trial, the court found true enhancement allegations that defendant had two prior convictions within 10 years of driving under the influence of alcohol. (Veh. Code, 23546.) He appeals from the order of five years of informal probation granted on the condition, inter alia, that he serve 300 days in the county jail and have his drivers license revoked for three years. Defendant contends that the trial court erred: (1) in refusing to give a requested defense instruction on lack of mens rea, (2) in permitting him to be convicted of carrying a loaded firearm in the absence of substantial evidence of guilt of that offense, and (3) in permitting him to be convicted of carrying in public a concealable loaded firearm he did not own, in the absence of substantial evidence that the firearm, a rifle, was concealable. Finding merit only in the lattermost contention, Court shall reduce that conviction to the included misdemeanor of carrying a loaded firearm in public and, as modified, affirm the judgment (order of informal probation).

A jury convicted defendant Richard Manuel Estrada of attempted lewd acts with a child under the age of 14 (Pen. Code, 288, subd. (a), 664--count six; unspecified section references that follow are to the Penal Code), two counts of forcible lewd acts on a child under the age of 14 ( 288, subd. (b)(1) counts one and three), and two counts of lewd acts with a different child under the age of 14 ( 288, subd. (a) counts four and five) while sustaining allegations that defendant committed counts one, three, four, and five against more than one victim pursuant to the one strike law ( 667.61, subd. (e)(5)). The court sustained allegations of two prior serious felony convictions and sentenced defendant to a term of 180 years to life plus 50 years. On appeal, defendant initially contended that allegations under the one strike law were not alleged in the information but he has withdrawn that contention. He continues to argue that his one strike sentences in counts five and six were unauthorized, and the imposition of consecutive sentences violated his rights to due process of law and jury trial. Court modify the sentence on count five and otherwise affirm the judgment.

Ponani Sukumar appeals from a judgment entered in favor of Med-Fit Systems, Inc. (Med-Fit) and Nautilus Group, Inc. (Nautilus, and together with Med-Fit, Defendants) following a jury trial. He claims no evidence supported the jury's conclusion that: (1) Med-Fit performed its contract with him and Nautilus did not induce a breach of that contract; (2) Med-Fit did not make a false representation of fact; and (3) Nautilus did not intend to interfere with that contract. Sukumar also claims the trial court erred in: (1) denying his motion for a new trial based on (a) violation of the mediation privilege and (b) attorney misconduct; and (2) granting summary adjudication in favor of (a) Med-Fit on his specific performance claim and (b) Nautilus on his claims against it for breach of contract.
Court also reject Sukumar's assertions that the trial court erred in denying his new trial motion and granting summary adjudication in favor of Nautilus on his claims against it for breach of contract; however, Court conclude the trial court erred in summarily adjudicating Sukumar's "claim" for specific performance and reverse that part of the order. The matter is remanded for further proceedings in accordance with this opinion.

Angel Mendoza and Salomon Vasquez (the Plaintiffs) appeal a judgment entered by the superior court after it granted a motion for judgment on the pleadings, on collateral estoppel grounds, in favor of their employer, Mayer Roofing, Inc. (Mayer), as to their class action allegations. The Plaintiffs contend that the superior court erred in concluding that the denial of class action certification in a prior action against Mayer by another set of employees bars them from seeking to certify a class in this action. Because we agree Mayer did not meet its burden to show that the prior denial of class certification bars this proposed class action as a matter of law, Court reverse the judgment and remand the matter for further proceedings.

In 1980 a jury convicted Jose Orozco of first degree murder with the personal use of a deadly weapon. The trial court sentenced him to an indeterminate prison term of 26 years to life. He became eligible for parole in 1995. At a hearing in 2006, the Board of Parole Hearings (Board) found him suitable for parole for the second time. However, the Governor reversed the Board's decision, finding Orozco's release "would pose an unreasonable risk of danger to society at this time." Court, therefore, grant Orozco habeas relief and order the Board's decision reinstated. We further order the respondent to release Orozco subject to the conditions contained in the Board's decision and any applicable federal immigration hold.

A jury convicted defendant Muhammad Jameel Hassan of assault with intent to commit rape (Pen. Code,[1] 220; count 1), felony sexual battery ( 243.4, subd. (a); count 2), misdemeanor sexual battery ( 243.4, subd. (a); count 3), and false imprisonment ( 236 & 237, subd. (a); count 4). The court found true the allegation that Hassan had served a prior prison term within the meaning of section 667.5, subdivision (b). It sentenced Hassan to eight years and eight months in prison: the upper term of six years in count 1; one year (one third the middle term) in count 2; time served in the county jail in count 3; eight months (one third the middle term) in count four; and one year for the prior prison term enhancement. On appeal, Hassan argues that there is insufficient evidence to show he had the requisite intent to commit rape in count 1. Applying well established standards of review, we conclude there is substantial evidence from which a reasonable jury could find beyond a reasonable doubt that Hassan was guilty of assault to commit rape. (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) Court therefore affirm the judgment.