CA Unpub Decisions

Appellant appeals the denial of her motion for a preliminary injunction, by which she sought to bar the use of drop boxes by Kings Countys animal shelter. Finding no abuse of discretion, Court affirm.

John Dominick Bergeron appeals from a judgment after the trial court found true he suffered a foreign prior strike conviction and sentenced him to 135 years to life in state prison. Bergeron argues double jeopardy principles prohibited retrial of his prior conviction, the trial court erroneously admitted evidence, insufficient evidence supports the courts finding he suffered the prior conviction, the court erroneously refused to strike one or both of his prior convictions, and the abstract of judgment must be corrected to reflect the award of additional days of actual credit. With the exception of his abstract of judgment claim, his contentions have no merit, and Court affirm the judgment as modified.

The primary issue we review in this case is whether a commercial landlord may unreasonably withhold its consent to a proposed assignment where the lease requires the landlords consent to the assignment and gives the landlord the right to withhold its consent for any reason whatsoever or for no reason. The trial court determined a lease term giving the landlord sole discretion was essentially not subject to any standard, and accordingly Civil Code section 1995.260[1] required that a reasonable standard be implied to govern the landlords decision. Applying this rule, the court concluded the landlord unreasonably withheld its consent to the lessees proposed assignment. The landlord argues sole discretion is an acceptable standard, and in any event, the reasonableness question should have been decided by a jury. Court conclude the parties express agreement to a sole discretion standard is permitted under legal standards existing before and after enactment of section 1995.260, as long as the provision is freely negotiated and not illegal. The judgment is reversed.

Following a jury trial, appellant was convicted of one count of violating Penal Code section 288, subdivision (a) (lewd act on a person under 14). The jury also found true a great bodily injury allegation. (Pen. Code, 12022.53, 12022.7, 12022.8.) The trial court sentenced appellant to a state prison term of 15 years to life. Appellant contends that the trial court erred in instructing the jury concerning the great bodily injury allegation, which was based on his impregnation of his victim and her subsequent abortion. Court affirm.

Defendant Ricardo Andrade Morales was convicted after a no contest plea of having a concealed weapon in his vehicle (Pen. Code, 12025, subd. (a)(1)), and actively participating in a criminal street gang ( 186.22, subd. (a)). Prior to entry of the plea, defendant made an unsuccessful motion to suppress seized evidence pursuant to section 1538.5. The court suspended sentencing and granted probation on the condition that he serve 120 days in county jail. For the reasons below, we conclude that the traffic stop and subsequent pat search were lawful and the court below properly denied defendants suppression motion. We hold further that the challenged probation condition abridges defendants constitutional rights and, accordingly, we will order that it be modified. Lastly, we hold that defendants custody credit challenge has been forfeited. Accordingly, we will affirm the judgment of the trial court, as modified to reflect an appropriate narrowing of the probation condition.

Pablo Lozano Moran, the defendant herein, pleaded no contest to theft or unauthorized use of a vehicle. (Veh. Code, 10851, subd. (a).) He admitted the truth of two allegations subjecting him to punishment under the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12) and two prior prison term enhancement allegations (id., 667.5, subd. (b)). The trial court conducted a hearing on defendants motion to dismiss one or both of his two strike priors under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and dismissed one of them in the interest of justice. Thereafter the court sentenced defendant to eight years in state prison as a second-strike offendera doubled term of six years under the Three Strikes law for the current offense (Pen. Code, 18, 667, subd. (e)(1), 1170.12, subd. (c)(1)) and two years for the prison priors (id., 667.5, subd. (b)).
Counsel for defendant has filed an opening brief that states the case and facts but raises no issues. Court notified defendant of his right to submit written argument on his own behalf, but he did not do so.

D.B. appeals from the orders declaring wardship (Welf. & Inst. Code, 602) and committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities, after findings that he committed murder (Pen. Code, 187, subd. (a)), possessed a fireman as a minor ( 12101, subd. (a)(1)), and possessed live ammunition as a minor ( 12101, subd. (b)(1)).[1] The juvenile court found true allegations that D.B. was an active participant in a criminal street gang and had committed the murder for the benefit of that gang. ( 190.2, subd. (a)(22), 186.22, subd. (b)(1)(C).) The juvenile court also found true allegations that during commission of the murder, he personally and intentionally discharged a firearm, causing death to the victim. ( 12022.53, subd. (d).) The juvenile court set the maximum time of confinement at 50 years to life for murder, eight months for the firearm possession, two months for the live ammunition possession, and six months for two previously sustained petitions for vandalism and robbery.

Eileen Anderson appeals from the judgment entered after the trial court granted summary judgment in favor of her former employer, MCI Communications Services, Inc. (MCI), in Andersons action for wrongful termination. Court affirm.

Tyler Ragar Troutner appeals from judgment after conviction by jury of multiple crimes arising from a series of altercations at a party. Troutner was convicted of two counts of assault with a deadly weapon, a knife (Pen. Code, 245, subd. (a)(1)),[1]one of which was found to have been committed with personal infliction of great bodily injury ( 12022.7, subd. (a)); one count of felony battery resulting in serious bodily injury ( 243, subd. (d)), which was found to have been committed with the personal use of a knife ( 12022, subd. (b)(1)); one count of simple assault ( 240); two counts of simple battery ( 242); and one count of felony vandalism ( 594, subd. (b)(1)). Appellant contends that (1) his convictions for the assault and battery of Morton should be reversed because the judge did not instruct the jury on a mutual combatant's restored right to self-defense upon the sudden use of deadly force by his opponent, and (2) his conviction for assault with a deadly weapon upon Clifford should be reversed or reduced to simple assault and battery because there was insufficient evidence that he used a knife to attack Clifford. Court affirm.

A jury convicted Darryl T. Burnside of the first-degree murder (Pen. Code, 187, subd. (a))[1](count 1) and second degree robbery ( 211) (count 2) of Jorge Bueno, and found Burnside committed the offenses to benefit a criminal street gang ( 186.22, subd. (b)(1)) and personally discharged a firearm proximately causing great bodily injury and death to Bueno ( 12022.53, subd. (d)).
On August 19, 2008, Burnside filed a handwritten supplemental brief in which he challenged his conviction on several grounds. Although none of Burnsides claims present an arguable issue, pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 120-121, Court identify Burnsides contentions and explain the reasons they fail.

Schafa Massaji appeals from the trial courts order denying his petition to confirm and granting Mark Rofehs petition to set aside and vacate the arbitration award Massaji obtained against Rofeh, resolving business disputes involving aspects of the financing and operation of Serengeti Tea Company (Serengeti). Massaji contends the court erred in setting aside the arbitration agreement on the grounds the arbitrator selected by JAMS, retired Los Angeles Superior Court Judge Sherman W. Smith, Jr., was not a qualified arbitrator under the terms of the parties arbitration agreement and the arbitrator exceeded his authority by including a usurious interest rate in the award and by awarding relief against Serengeti, which, although a party to the arbitration agreement, was not a party to the arbitration proceedings. Court reverse and remand with directions.

Maria Gomez appeals from the judgment entered after her conviction by a jury on one count of first degree murder (Pen. Code, 187, subd. (a)) nd one count of poisoning ( 347, subd. (a)). Gomez admits she killed Norberto Castro, but contends the jury instructions explaining imperfect self-defense a killing done in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury were inadequate. Court affirm.

Defendants Langimaa Faulalo and Gary Bruce Ulukivaiola were convicted by a jury of murder (Pen. Code, 187, subd. (a)) and robbery in concert (id., 211, 213, subd. (a)(1)(A)) in connection with a home invasion robbery in which one of the occupants resisted and was killed. (Further undesignated section references are to the Penal Code.) The jury also found Faulalo and Ulukivaiola personally used a firearm in connection with the offenses ( 12022.53, subd. (b)), and Ulukivaiola discharged a firearm ( 12022.53, subd. (c)) and caused great bodily injury ( 12022.53, subd. (d)).
Court reject each of defendants contentions, as well as the Peoples concession, and affirm the judgments. On the abstracts of judgment, Court conclude the trial court was statutorily obligated to impose a parole revocation fine as to each defendant and shall order that the judgments be modified accordingly.

Pursuant to a plea agreement, defendant Lafayette Toney entered a plea of guilty to inflicting corporal injury on his spouse (Pen. Code, 273.5, subd. (a)) and admitted a great bodily injury enhancement in case No. SF083744A, and a plea of guilty to felony escape (Pen. Code, 4532, subd. (b)) in case No. TF030945A. The court imposed concurrent one year jail terms in both cases and placed defendant on five years probation.
Defendant appeals, contending the order revoking probation is not supported by substantial evidence, and the court violated his right to due process by not admitting the tape of a 911 call made by defendant. Court affirm the judgment.