CA Unpub Decisions

Zarema Seitmemeto Yagyayeva entered negotiated guilty pleas to three counts of grand theft from a person (Pen. Code, 487, subd. (c)) and admitted she had violated her probation in another case. Under the plea bargain, which included a Harvey (People v. Harvey (1979) 25 Cal.3d 754) waiver, the prosecutor agreed not to oppose probation and to a concurrent sentence in the other case. The trial court stayed imposition of sentence and placed Yagyayeva on three years' formal probation, conditioned on, among other things, she serve 365 days in jail. The court also ordered Yagyayeva to pay $50 per month in restitution to her victims. At a subsequent hearing, the court ordered Yagyayeva to pay one of the victims $42,401 in restitution.

Kurt Louis Oppido entered a negotiated guilty plea to one count of causing corporal injury to a co-inhabitant (Pen. Code, 273.5, subd. (a)) and admitted that he personally used a deadly weapon in the commission of the crime (Pen. Code, 1192.7, subd. (c)(23)). Under the plea bargain, the prosecution agreed to dismiss three prior prison term allegations (Pen. Code, 667.5, subd. (b)). The prosecution also agreed that it would not oppose Oppido serving any custody time imposed locally. The trial court placed Oppido on formal probation for three years, on the condition that, among other things, he serve 365 days in county jail. Oppido 's probation was revoked the following year after he admitted that he had violated terms of his probation by contacting the domestic violence victim, and tested positive for methamphetamine. The trial court denied Oppido's request for reinstatement of probation and sentenced him to the middle term of three years in prison.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) to vacate the orders of the juvenile court issued in November 2008 at a six-month review hearing, terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her children V.J. and M.V. Court conclude her petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court dismiss the petition as facially inadequate.

Larry Menke, Inc., doing business as Larry Menke Chrysler, and Larry Menke (collectively, Menke) appeal from a judgment of dismissal after the trial court sustained the demurrer filed by DaimlerChrysler and one of its employees, Louis Stavale (collectively, Chrysler). Menke had intervened as an additional plaintiff in Wester Motors (Westers) suit against Chrysler after Chrysler declined to approve Westers application to transfer its Dodge automobile dealership in Seaside, California, to Menke. Menke contends the trial court erred in concluding its first amended complaint stated no cause of action for violation of Vehicle Code, section 11713.3, subdivision (e),[1] which governs a manufacturers responsibilities to a franchisee seeking to transfer or assign its interest in an automobile dealership. Menke also challenges the trial courts conclusion its complaint failed to state claims for intentional or negligent interference with prospective business advantage or for tortious interference with the franchise transfer contract agreed upon by Wester and Menke. Because section 11713.3, subdivision (e), applies by its express terms only to franchise transferors not their prospective transferees and because Menke alleged no independent torts other than the putative violation of the Vehicle Code, Menkes claims fail as a matter of law and the trial court properly sustained Chryslers demurrer. Court therefore affirm the judgment.

In 1992, appellant was convicted in Colorado of criminally negligent homicide. Following appellants conviction in the present case, the trial court determined his Colorado prior constituted a serious felony conviction under California law. It therefore enhanced appellants sentence by five years pursuant to Penal Code section 667, subdivision (a)(1). Appellant contends there is insufficient evidence to support imposition of the enhancement, but Court disagree and affirm the judgment.

While the contract clearly provides that, during its period, Muscatello can only be terminated for cause, and further provides that the contract automatically renews for successive one-year periods if neither party gives notice of termination, it does not require cause for a partys decision to give notice of non-renewal. And if Muscatellos interpretation of the contract were accepted, it would actually nullify the renewal-for-successive-periods structure of the agreement. If, as Muscatello claims, non-renewal required the same cause requirement as would a termination during a contractual period, the contract would simply be indistinguishable from one with an indefinite period. We cannot interpret it that way. The judgment is consequently affirmed.

Dongjin Semichem Inc. (Dongjin) prevailed in an arbitration hearing against Emailfund, Inc. (Emailfund) and its corporate principal, Sangmun Kim. The trial court confirmed the arbitration award and entered judgment. Emailfund contends the trial court erred in denying its motion to vacate the arbitration award based on arbitrator bias. (Code Civ. Proc., 1286.2; all statutory references are to this code.) Emailfund argues the arbitrator created an impression of bias when he volunteered to help Dongjin obtain relief from a bankruptcy stay issued when Kim filed for bankruptcy two days before the arbitration hearing. We conclude substantial evidence supports the trial courts implicit finding the arbitrators conduct would not cause a reasonable person to doubt the arbitrators ability to act impartially. Consequently, Court affirm the judgment.

Defendant Moses Birelas was convicted by a jury of murder with the special circumstance that the crime occurred during the commission of a robbery. (Pen. Code, 187; 190.2, subd. (a)(17).) Count 2 alleged attempted second degree robbery (Pen. Code, 664, 211), and count 3 charged conspiracy to commit robbery (Pen. Code, 182, subd. (a)(1); 211). On appeal, he contends that the instructions on accomplice corroboration, CALCRIM Nos. 334 and 335, were legally deficient. He further contends that the prosecutor engaged in misconduct by referring to gangs while questioning a witness, and he challenges the imposition of a restitution fine under section 1202.45 in light of his sentence of life without possibility of parole. Court will modify the judgment but otherwise affirm.

Appellant Pajaro Wall Street Inn, LLC (Pajaro) appeals from a judgment entered after the trial court denied its petition to vacate an award resulting from an appraisal proceeding conducted pursuant to Insurance Code section 2071.[1] The appraisal panel had determined the actual cash value of fire damage to a commercial building that Pajaro owned, as well as the value of Pajaros business income loss after the fire. The respondents (AXIS Surplus Insurance Company, Lloyds of London, Essex Insurance Company, United States Fire Insurance Company, and Westchester Surplus Lines Insurance Company (hereafter Insurers)) covered the loss. Court find no grounds for vacating the award and affirm the judgment.

On the 23rd day of the jury trial in this case, defendant Joe Manuel Gonzales pleaded no contest to eight counts of grand theft from an elder adult (Pen. Code, 368, subd. (d)),[1] and four counts of attempted grand theft from an elder adult ( 368, subd. (d), 664), and admitted two prior strike convictions ( 667, subds. (b)-(i), 1170.12), and enhancements for excessive loss ( 12022.6, subd. (a)(1), 1203.045, subd. (a)). Defendant was sentenced to 10 years in prison, consisting of the midterm of three years on the first grand theft count, and one year for each of the other seven grand theft counts.
Defendant contends that the consecutive sentences must be reversed because they were imposed: in violation of section 654; based on improper use of elements of the offenses; or in contravention of Apprendi (Apprendi v. New Jersey (2000) 530 U.S. 466) and Cunningham (Cunningham v. alifornia (2007) 549 U.S. 270). Court find no valid ground for overturning the consecutive sentences and affirm the judgment.

Robert A. Girard appeals from a judgment entered after a jury convicted him on three counts of committing a lewd or lascivious act on a child under the age of 14, (Pen. Code, 288, subd. (a))[1]and one count of continuous sexual abuse of a child. ( 288.5, subd. (a).) He contends (1) the trial court erred when it excluded from evidence portions of a pretrial statement that he made, while the court allowed the prosecutor to offer other portions; (2) the court erred when it admitted evidence that he had committed a prior similar sexual offense; (3) the prosecutor committed misconduct during final argument; and (4) the sentence he received constituted cruel and unusual punishment. Court conclude the court did not commit any prejudicial errors and will affirm.

Jerome Franz Gonzalez appeals an order involuntarily committing him for an indeterminate term to the custody of the Department of Mental Health (Department) after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst. Code, 6600 et seq.) (the SVPA). Gonzalez contends the order should be reversed because his indeterminate commitment under the SVPA, as amended in 2006, violates his federal constitutional rights to due process of law, against ex post facto laws, and to equal protection under the law. Court affirm.

After the trial court denied her motion to suppress, appellant Gena Leanne Ayala pleaded no contest to possession of methamphetamine (Health & Saf. Code, 11378, subd. (a)). On appeal, appellant contends the trial court erred in denying her motion to suppress. Court disagree, and affirm.

J.J. (appellant), born in August 1990,[1] appeals from a dispositional and commitment order committing him to the Division of Juvenile Justice (DJJ). He contends: (1) the juvenile court abused its discretion in committing him to the DJJ because it based its decision on unreliable and false information and because it failed to make certain findings a court is required to make before committing a minor to the DJJ; (2) the court erred in denying his application for rehearing; (3) there was prosecutorial misconduct; and (4) the court erred in continuing previously imposed conditions of probation. Appellant has also filed a petition for a writ of habeas corpus (habeas petition) in which he contends he was provided with ineffective assistance of counsel. Court agree with appellants fourth contention on appeal and therefore reverse the order continuing previously imposed conditions of probation. In all other respects, Court affirm.