CA Unpub Decisions

Plaintiff and appellant Yee Keung Siu (Siu) appeals the trial courts order awarding attorney fees and costs to defendants and respondents, Pius Lee, et al. (Lee). Lee incurred the attorney fees in connection with his special motion to strike under Code of Civil Procedure section 425.16 (hereafter section 425.16), otherwise known as an anti-SLAPP motion. Court affirm.

A jury convicted defendant William Lee Mitchell of second degree commercial burglary (Pen. Code, 459)[1]and grand theft of personal property ( 487, subd. (a)). It found true one prior strike allegation ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and five prior prison term allegations ( 667.5, subd. (b)). The trial court sentenced defendant to a total term of nine years in state prison. He appeals from the judgment of conviction. Court affirm.

Appellants Logisticorp, and Southwest Resource Preservation, Inc., challenge the grant of summary judgment in favor of respondent Calypte Biomedical Corporation. The trial court filed a judgment following summary judgment, and later filed a second judgment that incorporated an award of attorney fees and costs. Court conclude that appellants notice of appeal was untimely with respect to the first judgment, and dismiss their appeal to the extent that they challenge it. Because appellants have raised no independent issues on appeal with respect to the fees and costs awarded in the second judgment, Court affirm the second judgment.

A jury convicted defendant and appellant Moises Hernandez of first degree murder and of attempted murder. During jury deliberations, a juror was excused and replaced by an alternate juror. The trial court, however, neglected to instruct the reconstituted jury to begin deliberations anew. Defendant now contends that this failure to instruct the jury constitutes prejudicial error. Court reject the contention and affirm the judgment.

Defendant and appellant, Victor Garcia, appeals from the judgment entered following his conviction, by jury trial, for possession of cocaine base for sale, possession of methamphetamine for sale, and possession of heroin, with prior prison term enhancements (Health & Saf. Code, 11351.5, 11378, 11350; Pen. Code, 667.5). Garcia was sentenced to state prison for a term of seven years. The judgment is affirmed.

Petitioner is the former chief executive officer for the Mary Jane Company, an apparel company in North Hollywood. In March 1989, angered by a business dispute with Robert Krugman, petitioner entered into a conspiracy with another officer of the Mary Jane Company to murder Krugman and obtain $1.25 million in life insurance proceeds. They hired two hitmen to kill Krugman. In July 1989, a security officer alerted the Los Angeles Police Department, which arrested petitioner and his co-conspirators before Krugman was killed. Petitioner was 46 years old at the time.
On July 10, 1991, pursuant to a plea bargain agreement, petitioner pled no contest to a charge of conspiracy to commit second degree murder (Pen. Code, 182.1, 187). The terms of the plea bargain included the Peoples agreement not to oppose parole at the earliest date recommended by the Board (Board). On August 23, 1991, the trial court sentenced to a term of 15 years to life in prison.

Defendants Steve Mooney and Mary Mooney, doing business as Mooney Farms (Mooney), entered into a contract with plaintiff Culinary Farms (Culinary) to purchase 135,000 pounds of California sun-dried tomatoes. Culinary delivered the sun-dried tomatoes to Mooney, who never inspected or paid for them. After Culinary regained possession of the sun-dried tomatoes, Culinary filed suit against Mooney for breach of contract and conversion. Subsequently, Culinary was able to resell the 135,000 pounds of sun-dried tomatoes to other purchasers.
Culinary filed a motion for summary judgment, which the trial court granted. Mooney appeals, arguing the trial court erred in finding, as a matter of law, Culinary was a volume seller entitled to recover damages for the lost profit on the 135,000 pounds of sun dried tomatoes. Mooney also challenges the courts calculation of the per pound price. Finally, Mooney argues the value of the sun dried tomato bins underlying the conversion claim raises a triable issue of fact. We shall remand for a recalculation of Culinarys damages at $2.60 per pound. In all other respects, Court affirm the judgment.

Contrary to defendants wishes, Gutierrez had moved into a motel room with another man. The day before the fire, defendant confronted Gutierrez at the motel room, where they argued about the breakup and he eventually held a knife to her throat and hit her with a can of fruit. The next day, defendant returned with a can of gasoline. After successfully attempting to convince her to return to him, he closed and locked the door, explaining: Since you dont love me no more, nobody is going to love us. He then poured gasoline on himself and the bed and explained: Im going to burn my apologies. With that, defendant ignited himself and grabbed onto Gutierrez, causing serious burns to her hands, arms, and face. Gutierrez took refuge in the shower after her attempt to leave the room was blocked by the burning defendant. Defendant then leaped through the rooms plate glass window, landing in the parking lot, where bystanders were able to smother the flames with a curtain. Defendant suffered severe burns over 50 percent of his body. On appeal, defendant contends imposition of upper terms . . . violated his federal constitutional rights to a jury trial, proof beyond a reasonable doubt, and due process. Court disagree and shall affirm the judgment.

Alvin Anthony Williams appeals a judgment arising out of his conviction of second degree murder, contending that the trial court erred in failing to instruct the jury regarding the misdemeanor manslaughter theory of involuntary manslaughter and there was insufficient evidence to support a finding of the implied malice element of second degree murder. Court find his arguments unavailing and affirm the judgment.

A jury convicted Yassir Ojok of one count of grand theft (Pen. Code,[1] 487, subd. (a)).[2] In a separate proceeding, Ojok admitted he had a prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)). The trial court denied Ojok's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497) to dismiss the prior strike conviction. The court sentenced Ojok to four years in prison: the midterm of two years doubled under the "Three Strikes" law.
Ojok appeals. He contends the court abused its discretion by denying his Romero motion.

A jury found Tuan Van Tran guilty of first degree murder and three counts of residential robbery with firearm enhancements. At sentencing in September 1989, the court ordered a total of $20,000 in restitution and/or a restitution fine. Tran appealed. In January 1991 this court remanded the case to the trial court "for imposition of a restitution amount within the $10,000 maximum." (People v. Tran (Jan. 23, 1991, D011037) [nonpub. opn.].)
Alternatively, Tran contends the total amount of restitution ordered in both 1989 and 1991 exceeds the statutory maximum, requiring reversal of the December 2007 order. Tran asks that this court vacate the December order and direct the trial court to hold a new restitution hearing or enter a new order requiring restitution, a restitution fine, or both, in a total amount not exceeding $10,000. The People properly concede that this court's limitation of restitution to $10,000 is the law of the case (People v. Turner (2004) 34 Cal.4th 406, 417) and the December 2007 order should be clarified to reflect that the total amount of restitution and a restitution fine does not exceed $10,000. The order for restitution and/or a restitution fine is reversed.

In 2004 Mario M. entered a negotiated admission to committing a lewd act on a child under the age of 14 years (Pen. Code, 288, subd. (a)). The juvenile court continued Mario as a ward and placed him on probation under home supervision. Mario violated probation several times. In 2005 the court committed him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) and ordered he pay $3,278 to the Victim Compensation Program (VCP). In October 2007 the DJJ requested that the court order Mario to pay an additional $9,409.68 to the VCP. The court granted the request at an ex parte proceeding in November. Mario appeals, contending the 2007 order must be vacated and the case remanded for a new restitution hearing because he was not present and was not given notice or an opportunity to test the validity of the new restitution claim. The People properly concede the point. (Welf. & Inst. Code, 730.6, subd. (h).) The judgment is affirmed.

M.T. and E.G. have three daughters: B.T., born in 1998; A.T., born in 2000; and H.T., born in 2004.[1] The parents appeal juvenile court orders removing the children from the mother's custody following true findings made on supplemental petitions under Welfare and Institutions Code section 387.[2] The parents challenge the sufficiency of the evidence to support the juvenile court's finding the previous placement with the mother was ineffective because she disregarded its direction not to allow the father to live in the home because of domestic violence, and removal was necessary to prevent substantial danger to them. The parents also contend the evidence does not support the court's findings that they were offered or received reasonable services. Court affirm the orders.

Dennis B. Ohlsson entered a negotiated guilty plea to one count of committing a lewd and lascivious act upon a child under the age of 14 years (Pen. Code,[1] 288, subd. (a)). Ohlsson also admitted that in committing the crime he had substantial sexual contact with the child within the meaning of section 1203.066, subdivision (a)(8) and used pornography within the meaning of section 1203.066, subdivision (a)(9). Under the plea bargain, the prosecution agreed to dismiss seven other counts of committing a lewd and lascivious act upon a child under the age of 14 years, and one count of continuous sexual abuse of a child ( 288.5, subd. (a)). The parties stipulated to an eight year prison term. The trial court sentenced Ohlsson in accordance with the plea bargain.