CA Unpub Decisions

Defendant Wild Oats Markets, Inc. (Wild Oats) appeals a trial court judgment in favor of plaintiff Mary Martinez in her action for nonpayment of overtime wages. The parties agreed that Martinez spent the majority of her time engaged in nonexempt activities, but disagreed on whether engaging in such activities was a realistic requirement of her job. Court affirm the trial courts judgment.

Defendant Jorge Hernandez was charged by information in count 2 with conspiracy to commit the murder of Garrett Warren (Pen. Code, 182, subd. (a)(1))[1]and in counts 3 and 4 with the willful, deliberate, and premeditated attempted murders of Garrett Warren and Joanne Warren ( 187, 664, subd. (a)). The information also alleged as to counts 2 to 4 that a principal was armed with a firearm ( 12022, subd. (a)(1)); as to counts 2 and 3 that defendant personally and intentionally discharged a firearm causing great bodily injury to Garrett Warren ( 12022.53, subd. (d)); and as to counts 2 to 4 that defendant personally and intentionally discharged a firearm ( 12022.53, subd. (c)). On appeal, defendant claims the trial court erred in not allowing inquiry into an allegation of juror misconduct relating to a statement, following closing argument, made by a juror to defendants wife and the gift of a crucifix. Court disagree and affirm the judgment.

A judgment of nonsuit was entered on or about August 22, 2005. Appellant Yacub Lagundoye, plaintiff in the action, moved to vacate the judgment on April 30, 2007. At all material times, appellant was (and is) in propria persona. These appeals are from the judgment and the order denying the motion to vacate the judgment. Court dismiss the appeal from the judgment and affirm the order.

Defendant Albert Davis timely appealed from his conviction on one count of selling or offering to sell a controlled substance (cocaine base). The court sentenced defendant to a three year prison term. Defendant contends the court committed reversible error when it denied his for cause challenges to three prospective jurors, one of whom was an actual juror. Court affirm.

Jose Cesar Montez appeals from the judgment entered following his conviction after a jury trial on one count of inflicting corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)),[1]with findings by the court in a bifurcated proceeding he had suffered four prior serious or violent felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Montez contends his indeterminate sentence of 25 years to life in state prison constitutes cruel and unusual punishment. Court affirm.

Piero Salazar appeals the judgment entered after a jury convicted him of possession of marijuana (Health & Saf. Code, 11377, subd. (a)); having a concealed firearm in a vehicle (Pen. Code,[1] 12025, subd. (a)(1)); driving with a suspended license (Veh. Code, 14601.5, subd. (a)); and possession of marijuana while driving (Veh. Code, 23222, subd. (b)). Appellant was placed on three years formal felony probation that included a stayed term of 365 days in county jail. In addition to restitution, he was ordered to reimburse the county for 20 hours of attorney fees for the cost of his public defender. He contends, and the People concede, that the court erred in ordering him to pay attorney fees without notice and a hearing pursuant to section 987.8, subdivision (b). In a supplemental brief, Salazar asks us to independently review the record of the in camera hearing on his Pitchess motion. Court remand the matter for proper compliance with section 987.8, subdivision (b). Otherwise, Court affirm.

Appellant Ivie, McNeill & Wyatt, former counsel for plaintiffs Laverne Jackson (Jackson) and Bevan Thomas (Thomas)[1]in their action against defendants and respondents City of Lynwood and Lynwood Redevelopment Agency, challenges two trial court orders imposing monetary sanctions against it. Regarding the first order imposing monetary sanctions, appellant claims that it was improper because appellant could not respond to respondents discovery requests; it feared the threat of criminal liability communicated by the U.S. Attorneys Office. As for the second order imposing monetary sanctions, appellant asserts that the trial court lacked jurisdiction to award further sanctions given appellants appeal from the first order; in other words, according to appellant, its appeal of the first sanctions order automatically divested jurisdiction from the trial court to issue any further orders.
Appellants arguments are unfounded, unsound, and wholly lack merit. Accordingly, Court affirm the trial courts order.

This lawsuit was brought by plaintiffs and respondents Nancy Van Laningham and Baja Fishing and Resorts, Inc. against defendants and appellants Carlos Van Wormer Ruiz, Robert Van Wormer, and Roberto Van Wormer. The case went to the jury on a single cause of action for breach of contract. Plaintiffs prevailed, and on special verdicts, the jury awarded $417,326 for past economic loss and $2.9 million for future economic loss, for a total of $3,317,326 in damages. Defendants moved for new trial or a conditional remittitur on the grounds of excessive damages. The court denied the motion, finding that "It's a high number, but it's not an unreasonable number. . . . It's a big number. It's a big contract." On appeal, defendants again contend that the damages were excessive, contrary to the evidence, and were the result of passion or prejudice on the part of the jury. Court affirm.

Appellant A.C., a minor, appeals from an order continuing wardship (Welf. & Inst. Code, 602) entered after the juvenile court denied his motion to suppress evidence and found he had possessed cocaine for sale (Health & Saf. Code, 11351). The court ordered him home on probation and calculated the maximum term of confinement as four years, eight months. Appellant was a passenger in a car that was stopped by a deputy sheriff who believed the car had illegally tinted windows. Appellant contends his incriminating statements and the cocaine found during a search of the car should have been suppressed because the traffic stop was not justified by reasonable suspicion. Court affirm the order as modified.

Following a jury trial, appellant Richard Longoria (Longoria) was convicted of attempted voluntary manslaughter and assault with a firearm. The jury also found true the sentencing enhancement allegations that Longoria personally used a firearm in the commission of the offenses within the meaning of Penal Code section 12022.5, and inflicted great bodily injury in the commission of the offenses within the meaning of Penal Code section 12022.7. Longoria was sentenced to a term of 18 years. On appeal, Longoria argues that the trial court violated his constitutional right to confront witnesses when it admitted the preliminary hearing testimony of the alleged victim in this case, Pete Jimenez (Jimenez), at trial. Specifically, Longoria contends that Jimenez was not an unavailable witness within the meaning of Evidence Code section 240 because the prosecution failed to exercise due diligence in securing Jimenez appearance at trial. Longoria also claims that he did not have an adequate opportunity to cross-examine Jimenez at the preliminary hearing within the meaning of Evidence Code section 1291. Court conclude that the trial court did not err in admitting Jimenez preliminary hearing testimony, and on that basis, affirm.

Amy Keith, convicted of arson of her own property (Pen. Code, 451, subd. (d)) on a nolo contendere plea, appeals her conviction on the basis that her statements to an arson investigator should have been suppressed because it was obtained in violation of her Miranda rights. (Mirandav. Arizona (1966) 384 U.S. 436 (Miranda).) Court dismiss the appeal.

Defendant Fred Neufeld appeals from an order modifying a previous spousal support order. He contends there is no evidence to support the order. Court reverse.

Appellant was convicted by guilty plea of the unlawful taking of a vehicle. (Veh. Code, 10851, subd. (a).) He admitted a prior conviction within the meaning of Penal Code section 666.5[1]and admitted allegations of two prior prison terms ( 667.5, subd. (b)) and one prior serious or violent felony conviction within the meaning of the Three Strikes law. ( 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant filed a Romero motion,[2]which the trial court denied. It imposed a sentence of the low term of two years, doubled pursuant to the Three Strikes law. The court struck the section 667.5 subdivision (b) prior convictions. Appellant was ordered to pay restitution, including $300 to the victim. On appeal appellant contends that the restitution order of $300 was unrelated to the crime for which he was convicted and must therefore be reversed. Court affirm.

Kathy Ann Nimcheski appeals the judgment entered after she pled no contest to possession of methamphetamine for sale (Health & Saf. Code, 11378). Imposition of sentence was suspended and she was placed on five years formal probation with the condition that she serve 90 days in county jail. Nimcheski contends she was deprived of her right to counsel in connection with her request to withdraw her plea. Court affirm.