CA Unpub Decisions

The trial court granted the defendants motion for judgment in a nonjury trial pursuant to Code of Civil Procedure section 631.8 and then entered an order awarding costs and attorney fees. The plaintiff appeals. Court affirm.

David Vasquez was charged with aggravated mayhem (count 1), and assault by means of force likely to produce great bodily injury (GBI) with an ancillary allegation that he personally inflicted GBI (count 2). In 2006, a jury convicted Vasquez of assault by means of force likely to produce GBI with a finding that he inflicted GBI (count 2), but could not reach a verdict on the mayhem charge (count1), and the trial court declared a mistrial. In 2007, a second jury convicted Vasquez of aggravated mayhem (count 1). The trial court thereafter sentenced Vasquez to a total term of 19 years to life, following which he filed the appeal that is before us today. Vasquez sole argument on appeal is that his aggravated mayhem conviction (count 1) must be reversed because his trial counsel at his second trial was ineffective. Court agree.

Appellant Mario Rubin pled guilty to one count of carrying a concealed weapon in violation of Penal Code[1]section 12015, subdivision (a)(2). In a consolidated case, appellant was convicted, following a jury trial of one count of shooting at an occupied motor vehicle in violation of section 246 and one count of assault with a firearm in violation of section 245, subdivision (a)(1).[2] The jury found true the allegation that appellant personally used a firearm in the commission of the assault within the meaning of section 12022.5, subdivision (a)(1). Appellant admitted that he had suffered a prior sustained juvenile petition for carjacking. He also admitted that he committed the section 245 and 246 offenses while released on bail within the meaning of section 12022.1. The trial court sentenced appellant to a total term of 16 years, 8 months in state prison for the two cases.

A jury convicted Alvaro Campos (defendant) of one count of first degree murder in violation of Penal Code section 187, subdivision (a).[1] The jury found that defendant personally used and intentionally discharged a firearm, causing death, under section 12022.53, subdivision (d). The trial court sentenced defendant to 50 years to life in prison. The sentence consisted of 25 years to life for the murder and a consecutive term of 25 years to life for the firearm enhancement.
Defendant appeals on the grounds that: (1) permitting the prosecutor to impeach him with a prior conviction for carrying a concealed weapon violated due process because the crime did not involve moral turpitude; (2) defendants due process right was violated when the trial court permitted the prosecutor to impeach him with a picture of the tattoo on his neck; (3) the courts refusal to instruct on imperfect self defense violated defendants due process right to present a complete defense; and (4) the evidence of first degree murder is insufficient.

Appellant Emidio R. Macias was convicted by a jury of first degree premeditated murder (Pen. Code, 187, subd. (a), 189)[1]and personal use of a firearm ( 12022.5, subd. (a)) in a workplace shooting. Appellant was sentenced to 27 years to life state prison and appeals on the ground of instructional and evidentiary error. Court affirm.

Molly Yuen filed a complaint in joinder adding her ex-husbands attorney as a party to her ongoing marital dissolution proceedings. The attorney, Robert J. Allan, moved under Civil Code section 1714.10 to strike the complaint in joinder, which alleged that he had aided and abetted certain fraudulent transfers of the ex-husbands assets.[1] Allan now appeals from the trial courts denial of his motion to strike. We affirm.

Bennie Smith (Smith) appeals his conviction for selling a controlled substance in violation of Health and Safety Code section 11352, subdivision (a).[1] On two occasions, Smith asked to represent himself, one time specifically invoking his right under Faretta v. California (1975) 422 U.S. 806 (Faretta). His second Faretta motion was granted. On appeal, Smith contends that his two Faretta motions were actually motions for appointment of new counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and that those motions should have been granted. After reviewing the record and Smiths arguments, we find no error and affirm. When a defendant makes a Faretta motion, it does not obligate the trial court to conduct a Marsden hearing. And even if Smiths second Faretta motion could be construed as a Marsden motion, the trial court would have been justified in denying it.

Tim Phu appeals from postjudgment rulings revoking his probation and ordering execution of a previously stayed seven-year state prison sentence, contending the court abused its discretion in declining to reinstate probation. In a supplemental brief Phu also argues he is entitled to additional presentence custody credit pursuant to Penal Code section 2900.5, subdivision (b), for time actually spent in a residential treatment facility as a condition of his probation. Court affirm the rulings revoking probation and ordering execution of the previously stayed sentence, but remand for recalculation of presentence custody credits.

Nancy J. (mother) and her daughter, M.J., appeal from a visitation order issued upon termination of juvenile court jurisdiction. The order awarded M.J.s maternal grandmother, R.J. (grandmother), visitation with M.J. once per month.
Citing Troxel v. Granville (2000) 530 U.S. 57 [120 S.Ct. 2054, 147 L.Ed.2d 49], mother contends that the juvenile court impermissibly interfered with her right as a parent to make decisions concerning the care, custody and control of her daughter when it ordered M.J. to have monthly overnight visits with grandmother after it granted mother full legal and physical custody of M.J. and terminated its jurisdiction.
M.J. contends that the juvenile court exceeded its jurisdiction when it ordered once a month visitation for her grandmother. In M.J.s view, the juvenile courts order is voidable and should be declared void by this court. Court affirm the visitation order.

A modification decision.

Pearl Industries, Inc., Pearl Kwik Kar, Inc. and David Morehead (collectively, Pearl) owned oil change and lubrication stores in Camarillo and Indio. In 2003, Pearl sold the Camarillo store and its real property to Oil Stop, Inc., a chain of similar stores based in Northern California, for $1,150,000. Jeffrey Mayhew alleges that he was the real estate broker on the transaction and that Pearl breached its contract to pay him a commission of $81,000. Pearl appeals from the judgment, after a jury trial, in favor of Mayhew. It contends Mayhew's breach of contract claim is barred by the statute of frauds because there is no written employment agreement between Pearl and Mayhew. Pearl further contends that Mayhew is not a third party beneficiary of its contract with Oil Stop, and that the trial court erred when it instructed the jury on an estoppel exception to the statute of frauds defense. Court affirm.

Timothy Jones (Jones), also known as Timothy Germane Jones, and William Eugene Joseph (Joseph) appeal from the judgments entered upon their convictions by jury of attempted murder (Pen. Code, 664/187, subd. (a)).[1] As to both appellants, the jury also found to be true the special allegations that the attempted murder was willful, deliberate and premeditated within the meaning of section 664, subdivision (a), that a principal personally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1), and that the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C). As to Jones, the jury further found to be true the allegations that he personally discharged a handgun within the meaning of section 12022.53, subdivisions (b), (c) and (d), and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced Jones and Joseph to aggregate prison terms of 40 and 32 years to life, respectively.
Court affirm.

Frank Melendez. Jr. appeals his conviction by plea for unlawful possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1))[1]with a prior prison term enhancement ( 667.5, subd. (b)), entered after the trial court denied his motion to suppress evidence. ( 1538.5.) The trial court suspended imposition of sentence and granted probation with 210 days county jail. Court affirm.

Richard Ochotorena (appellant) appeals from a judgment entered following his conviction by jury of unlawfully driving or taking a vehicle. (Veh. Code 10851(a).) The jury returned a true finding on a charged prior conviction for first degree burglary. (Pen. Code 1170.12 (a) through (d) and 667 (b) through (i).) Following denial of his motion to dismiss the prior pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, appellant was sentenced to state prison for four years, consisting of the upper two-year term for the new offense doubled pursuant to the prior strike.
Appellant filed a timely notice of appeal and we appointed counsel. On October 27, 2008, counsel filed an opening brief raising no issues. On November 4, 2008, the clerk of this court notified appellant by letter that he had 30 days to submit any contentions or arguments. Appellant has not responded.