CA Unpub Decisions

Kenneth Howard Davidson, in an agreement with the district attorney, pleaded guilty to one count of ongoing sexual abuse of a minor under the age of 14 years in violation of Penal Code section 288.5.

Defendant points out that he never gave a Harveywaiver[]in connection with nine other counts that the trial court dismissed in accordance with the plea agreement. He contends the court erred because, despite the absence of such a waiver, it considered facts underlying and pertaining solely to four of the nine dismissed counts when it imposed the upper term prison sentence for his conviction under section 288.5. Defendant advances several other reasons in support of a more general claim that the court abused it discretion when it imposed the upper term prison sentence for his violation of section 288.5. As discussed below, Court conclude there was no prejudicial sentencing error and affirm.

A modification decision.

A modification decision.

Appellant Malibu Broadbeach L.P. (hereinafter, MBLP) filed a petition for a writ of administrative mandamus seeking both monetary damages and an order that respondents City of Santa Monica and its City Council and Planning Division (hereinafter collectively referred to as the City) issue a resolution reversing and removing a stop-work order issued by its building inspector. The trial court sustained without leave to amend the Citys demurrer to the petition. Court affirm because MBLPs sale of the real property in question deprived it of standing to complain of the stop-work order, and money damages cannot be recovered unless other grounds exist for issuance of the writ.

This is the second of two lawsuits brought by appellant Philip Kent Cohen against respondent DIRECTV, Inc. In his first lawsuit, Cohen, a DIRECTV customer, is challenging respondents business practices. Cohen successfully resisted DIRECTVs attempt to compel arbitration in the first lawsuit, after the court found that respondents arbitration clause is unconscionable. In the second lawsuit, Cohen seeks to recover attorney fees he incurred while resisting respondents motion to compel arbitration in the first lawsuit. The trial court sustained respondents demurrers without leave to amend and dismissed Cohens complaint. The courts ruling is correct. If Cohen wants to recover attorney fees he incurred in the first lawsuit, his remedy is to seek attorney fees in the still-pending first action, not to institute a second lawsuit. Further, the demurrer was properly sustained because respondents arbitration clause was not unconscionable on its face at the time it was added to the customer agreement.

A financially distressed homeowner agreed to sell real property to a real estate broker. The homeowner paid for an option to repurchase the property; however, she defaulted on the terms of the option. As a result, the option was forfeited and the property was sold to a third party. The homeowner sued claiming that the option was not forfeited, so the property could not properly be sold to a third party. At trial, the court gave judgment to the real estate broker who entered the option agreement. Court affirm.

W.B. (father) and H.P. (mother), the parents of K.B., have filed petitions for extraordinary writs (Cal. Rules of Court, rule 8.452) challenging an order of the juvenile court terminating their family reunification services with their daughter, K.B., and setting the underlying dependency proceeding for a hearing pursuant to Welfare and Institutions Code section 366.25. Court deny the petition.

On April 7, 2005, while on patrol in an area known for prostitution and drug activity, Sheriffs Deputy Britton noticed a vehicle driven by defendant Michael Leonard Smith, Jr., parked on the side of the road with a woman leaning in the passengers side window talking. When Britton pulled his patrol car up behind defendants car, the woman walked away and defendant drove forward and pulled into a residential driveway and stopped. Defendant, extremely agitated with his arms flailing, immediately got out of his car and walked towards Britton, yelling something about his girl. Britton got out of his patrol car, walked towards defendant and asked him what was going on and whether he was okay. Defendant said, My girl, my girl, my girl. Shes being followed, pointing to the woman on the street. Britton tried to calm defendant down and asked him if he had any identification. Defendant said he did not and continued to be very erratic and upset. Britton placed his hand on defendants elbow and guided him towards the patrol car. Suddenly, defendant spun around and pushed Britton, causing him to fall to the ground. Defendant ran back to his car. Britton got up and ran after him, pointing a flashlight and his service weapon at defendant and telling him not to start the car. Defendant started the car anyway and reved the engine, turning the vehicle towards Britton. Britton struck defendant in the face with the flashlight, momentarily stopping him, but defendant eventually accelerated, backed out of the driveway and drove away, forcing Britton to jump out of the way to avoid being hit.
The judgment is affirmed.

A jury convicted defendant Aaron Ray Allman of misdemeanor battery (Pen. Code, 242) as a lesser included offense of battery with great bodily injury ( 243, subd. (d)). The court suspended imposition of sentence, placed defendant on three years probation, and ordered him to serve 120 days in county jail, pending a further hearing on imposition of victim restitution as a condition of probation. Defendant appeals the restitution order, asserting: 1) his acquittal on the principal offense of battery causing serious bodily injury ( 243, subd. (d)) estopped the court from imposing restitution; 2) imposition of restitution violated his jury trial and due process rights; 3) the court was not authorized to impose restitution for losses incurred by the victims wife; and 4) ordering restitution for physical therapy costs not billed to the victim or his insurance was an abuse of discretion. Court shall affirm the order.

Penal Code section 1054.9 permits persons subject to the death penalty or life imprisonment without the possibility of parole to file a motion for postconviction discovery to assist in the preparation of a writ of habeas corpus. (Unspecified section references that follow are to the Penal Code.) Citing this statute and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), petitioner Jeffrey Milo Burks sought to file such a motion to obtain investigative reports involving two correctional officers who testified against him at trial. The trial court concluded that petitioner ultimately would not be entitled to habeas relief and therefore refused to permit petitioner to file his Pitchess motion. Petitioner seeks a writ of mandate to compel the trial court to permit the filing and consideration of his motion. Court grant the requested relief.

Convicted of attempted murder in 2005, defendant was sentenced to an aggregate term of 35 years to life in state prison, comprised of seven years for attempted murder, 25 years for using a firearm, and three years for defendants prior convictions. In 2006, defendant appealed his conviction, claiming, among other things, the trial court erred in sentencing him to 35 years to life in state prison. (People v. Ortiz (May 2, 2007) C051860 [nonpub. opn.] (opn. modified May 31, 2007).) In support of his claims defendant argued the trial courts failure to make any findings regarding his prior convictions must be treated as a finding that the allegations were not true. (People v. Ortiz, supra, C051860.) He also argued that a remand for resentencing would violate the double jeopardy provision of the federal and state Constitutions. (Ortiz, supra.) This court rejected both of defendants arguments and remanded the matter for resentencing. (Ortiz, supra.) The trial court judgment is affirmed.

Defendant Floyd Leroy Hamilton pled no contest to assault with a deadly weapon and admitted he personally inflicted great bodily injury during the attack. The trial court suspended imposition of sentence and placed defendant on four years probation on various terms and conditions.
Defendant contends, and the People concede, errors in two conditions of probation and in the computation of conduct credits. Court accept the concessions and shall direct the probation order to be amended.

Defendant was charged with four counts of digital penetration with a child under 10 years old, six counts of lewd and lascivious acts on a child under the age of 14 years old and one count of inflicting corporal injury on a child. Pursuant to a plea agreement, defendant pled guilty to three counts of lewd and lascivious acts on a child under the age of 14 years old, and one count of inflicting corporal injury on a child. In exchange for his plea, the remaining counts against him were dismissed and it was agreed he would be sentenced to an aggregate term of 11 years 4 months in prison. Defendant was sentenced in accordance with the plea. He did not obtain a certificate of probable cause. The judgment is affirmed.

In July 2007 a jury convicted Bruce Edward Jackson of possessing cocaine base as a lesser-included offense of furnishing cocaine base (Health & Saf. Code, 11350, subd. (a); count 1) and possession of cocaine base for sale (Health & Saf. Code, 11351.5; count 2). Jackson thereafter admitted that he had two previous drug convictions and had served two prior prison terms within the meaning of Penal Code sections 667.5, subdivision (b), and 668. The judgment is affirmed.