CA Unpub Decisions

The defendant was convicted of second degree murder, and contends on appeal that the trial court erred in refusing his request to instruct the jury on the lesser included offense of involuntary manslaughter. Court agree, and reverse the judgment.

Gerardo Ortiz appeals from the judgment entered following his conviction by a jury of brandishing a firearm (Pen. Code, 417, subd. (a)(2))[1] and being a felon in possession of a firearm. ( 12021, subd. (a)(1).) The jury found true an allegation that the latter offense had been committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. ( 186.22, subd. (b)(1).) The jury acquitted appellant of assault with a firearm. ( 245, subd. (a)(2).) The trial court found true an allegation that appellant had served a prior separate prison term. ( 667.5, subd. (b).) The court struck the prior and sentenced appellant to prison for five years.
Appellant contends that the trial court erroneously admitted a police officer's rebuttal testimony. In addition, appellant contends that the evidence is insufficient to support his convictions because there is no substantial evidence that he possessed a real firearm rather than a replica. Finally, appellant argues that the evidence is insufficient to support the true finding on the gang enhancement. Court affirm.

Sarkis Ghazaryan appeals from the trial courts order denying his motion to certify a class of limousine drivers allegedly undercompensated by Diva Limousine, Ltd. (Diva) in violation of California wage and hour laws. Ghazaryans lawsuit contests Divas policy of paying its drivers an hourly rate for assigned trips but failing to pay for on-call time between assignments (referred to by Diva employees as gap time). Because the trial court incorrectly focused on the potential difficulty of assessing the validity of Divas compensation policy in light of variations in how drivers spend their gap time, Court reverse the courts denial of the motion and remand with directions to certify Ghazaryans two proposed subclasses.

Miguel Guerrero (appellant) appeals from the judgment entered following a jury trial resulting in his conviction of attempted willful, deliberate, and premeditated murder. (Pen. Code, 664, 187, subd. (a)),[1]with findings of the personal discharge of a firearm proximately causing great bodily injury ( 12022.53, subds. (b), (c), (d) & (e)(1)), that the offense was committed for the benefit of, and at the direction of, or in association with a criminal street gang ( 186.22, subd. (b)(4)(C)), and that the offense was committed by the discharge of a firearm from a motor vehicle with the intent to inflict great bodily injury or death ( 12022.55).
Appellants latter two contentions have merit. This court will modify the judgment to strike the 15-year minimum term of imprisonment imposed as punishment for the gang enhancement. As modified, the judgment will be affirmed.

Appellant Montenegro Re, Ltd. (Montenegro) appeals from a judgment denying its petition to vacate an arbitration award and granting the request by respondent Associated International Insurance Company (Associated) to confirm the arbitration award. The arbitration award resolved a dispute over the application of a reinsurance agreement. Contrary to Montenegros contention, the arbitrators did not exceed their authority as to the main insurance claim (the Riley claim) by allegedly violating California and Texas insurance laws and public policies. Nor did the arbitrators err in resolving the 18 additional minor insurance claims that were within the scope of the arbitration provision and were encompassed within the broadly worded, prelitigation arbitration demand. Court thus affirm the judgment.

In this action, the complaint alleges that defendant breached an oral agreement with plaintiff to jointly fund a commercial real estate project, causing plaintiff to lose the deal. Plaintiffs company and a third party then filed separate bankruptcy cases concerning the property. Defendant allegedly breached the oral agreement so he could exclude plaintiff from the project and acquire the property himself. Ultimately, defendant alone obtained the property through the bankruptcy case of the third party.
Court conclude defendant has not made a threshold showing that any of plaintiffs causes of action arose from defendants right of petition or free speech. Plaintiffs claims are not based on the manner in which defendant eventually obtained the property but rather on his alleged misconduct in depriving plaintiff of all rights and interests in the property. Nor does the litigation privilege protect a contracting partys breach of a commercial agreement. Accordingly, the anti-SLAPP statute does not apply and Court affirm.

Jeannine E. (Mother) appeals from a dispositional order of the dependency court. She challenges (1) the courts finding that the Indian Child Welfare Act (ICWA) does not apply, and (2) the courts reunification plan. Court affirm.

A civil service employee appealed his discharge to the Board of Civil Service Commissioners. After participating in two days of evidentiary hearings and after receiving the hearing examiners report recommending the Boards approval of his discharge, the employee filed a withdrawal and/or dismissal of his appeal and later filed a complaint in the trial court, asserting claims of discrimination and related causes of action against his former employer. On demurrer, the employer argued the discharged employees complaint was barred by his failure to timely file a petition for administrative mandamus after the final Board decision. The trial court agreed, and the discharged employee appeals from the subsequently entered judgment. Court affirm.

Jerome Michael Fails contends insufficient evidence was presented to support his conviction for possession of cocaine base for sale. Applying the well-settled principles underlying such a claim (see Jackson v. Virginia (1979) 443 U.S. 307, 318-319), Court affirm the judgment.

Plaintiff and appellant Darrell J. Moore (Moore), in propria persona, appeals a judgment of dismissal in favor of defendant and respondent Housing Authority of the City of Los Angeles (HACLA) following the imposition of terminating sanctions for his willful noncompliance with the trial courts discovery orders. The essential issue presented is whether the trial court abused its discretion in imposing the ultimate sanction of dismissal. For the reasons discussed, Court perceive no abuse of discretion and affirm the judgment.

Landy Robert Briones appeals from the judgment entered upon his conviction by jury of selling or transporting cocaine base (Health & Saf. Code, 11352, subd. (a)). Appellant admitted having suffered a prior felony conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) and having served six prior prison terms within the meaning of Penal Code sections 667.5, subdivision (b). The trial court sentenced him to an aggregate state prison term of 13 years. Appellant contends that the trial court erred in permitting a forensic chemist to testify that a drug was a controlled substance based on the results of analyses conducted by another criminologist, thereby violating appellants rights to confront and cross-examine under the Sixth Amendment of the United States Constitution, as set forth in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

Leroy C. Evans appeals from the judgment entered following his plea of guilty to sale/transportation of cocaine base in violation of Health and Safety Code section 11352, subdivision (a). Appellant admitted suffering one prior strike conviction of a serious or violent felony pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). On January 16, 2008, appellant and a codefendant accepted money from an undercover narcotics police officer in exchange for rock cocaine. The judgment is affirmed.

D.V. ("Mother") appeals from the order terminating her parental rights to her sons, O. and B. On appeal, Mother maintains that there was insufficient evidence that the children were adoptable, and that her relationship with them met the exception provided by section 366.26, subdivision (c)(1)(b)(i) of the Welfare and Institutions Code. Finding no error, Court affirm.

Appellant Stacy S. (mother) appeals from (1) the juvenile courts May 14, 2008, order denying her motion to set aside the June 14, 2007, adjudicatory findings and disposition orders for alleged lack of proper notice, and (2) the courts May 14, 2008, order terminating parental rights (Welf. & Inst. Code, 366.26.)[1]as to her son A.G., now approximately three years old. We find no reversible error as to the arguably less than perfect notice procedures used by respondent Department of Children and Family Services (DCFS) to attempt to contact the transient and often homeless mother, whose son was born at a park. Significantly, any flaw in the notice procedures was harmless beyond a reasonable doubt because mother would not have obtained a more favorable outcome had she attended the jurisdiction and disposition hearings. The orders under review are affirmed.