CA Unpub Decisions

At a joint trial, a jury found defendants Bobby Chiu and Tony Cong Hoong guilty of first degree murder. It also sustained enhancement allegations that they committed the crime in association with a criminal gang, and a principals personal use of a firearm in the crime, resulting in great bodily injury. Staying the imposition of sentence on the gang enhancements, the trial court sentenced them to state prison for a minimum indeterminate life term of 50 years. Under compulsion of the far-reaching duty that our Supreme Court has fashioned to instruct on lesser offenses sua sponte, we must reverse the murder conviction of defendant Chiu and vacate the related enhancements. Court also find the evidence is insufficient to support either enhancement as to defendant Hoong. Court otherwise affirm the judgment as to defendant Hoong.

A jury convicted defendant Hershel Wayne Casto of first degree murder (Pen. Code, 187, subd. (a), 189);[1]and sustained enhancements for personally using a firearm ( 12022.5, subd. (a), 12022.53, subd. (b)), and personally discharging a firearm ( 12022.53, subds. (c) & (d)). The trial court sentenced defendant to a prison term of 50 years to life: 25 years to life for first degree murder plus 25 years for the section 12022.53, subdivision (d) enhancement. On appeal, defendant contends there is insufficient evidence of premeditation to support his conviction for first degree murder; the trial court erroneously refused to give defendants requested instruction on the legal effect of antecedent threats by the victim; and various unauthorized enhancements should be stricken. Court affirm the judgment.

Defendant John Joe Borba appeals from the sentence executed after a finding he violated probation. He contends the trial court increased his sentence upon recall, imposed duplicate restitution fines, and imposed a drug program fee which had not been imposed at the time his probation was revoked. We disagree and affirm the judgment. Defendant also argues the abstract of judgment is erroneous. On this last point, Court agree and will direct that the abstract of judgment be corrected.

Jordan Andrew Potts and United Levao (together Defendants) appeal from judgments entered upon their convictions of murdering Jesse Watson for the benefit of a criminal street gang. Defendants jointly assert that the trial court erred by refusing to accept a stipulation to the gang furtherance allegation. Alternatively, they argue that the allegation should have been removed from the trial by a motion to bifurcate and that their respective counsel provided ineffective assistance by not seeking to bifurcate the issue. They also argue that the trial court erred when it stayed the ten year gang enhancement, rather than striking it. Court agree that the ten-year gang enhancements must be stricken and the judgments modified so as to impose a 15-year minimum parole eligibility term. Court affirm the judgments as modified.

Shahrokh Doctor Safaie appeals from an order decertifying his lawsuit against Jacuzzi as a class action. He asserts the trial court had no authority to change its previous ruling granting class certification; the court applied erroneous legal standards when it decertified the class; and the record does not support the decertification ruling. Court reject his arguments and affirm the order.

Michael Edward Ames appeals a judgment arising out of his guilty plea to three counts of residential burglary, contending that the trial court erred in denying his motion to suppress evidence that was used as the basis for two of those counts. Court find his argument unavailing and affirm the judgment.

Following a contested adjudication hearing, the juvenile court sustained a petition alleging E.R. came within the provisions of Welfare and Institutions Code section 602 for having committed vandalism (count 1: Pen. Code,[1] 594, subds. (a), (b)(2)(A)) and for possessing graffiti tools (count 2: 594.2, subd. (a) (hereafter 594.2(a)). At the disposition hearing, the court set the maximum period of confinement at one year two months and placed E.R. on probation without wardship for a period not to exceed six months under Welfare and Institutions Code section 725, subdivision (a).
E.R. appeals, contending (1) the evidence was constitutionally insufficient to support the court's true findings that she committed vandalism and that she was in possession of a felt tip marker with the intent to commit vandalism; and (2) the prohibited possession of a black felt tip pen under section 594.2 is impermissibly vague and overbroad because it fails to establish standards for the police and the public that are sufficient to guard against the arbitrary deprivation of liberty interests. Court conclude substantial evidence supports the court's findings as to counts 1 and 2, and we reject E.R.'s facial challenge to section 594.2(a). Accordingly, Court affirm the judgment.

After the trial court denied Steven Brammer's Penal Code[1]section 1538.5 motion to suppress evidence, he entered a guilty plea to one count of receiving stolen property ( 496, subd. (a)). In accordance with the plea bargain, he was sentenced to the upper term of three years in prison. Brammer challenges the court's denial of his motion to suppress evidence. He contends the court erred because police did not have legal authority to impound his truck and perform an inventory search in violation of his Fourth Amendment rights. Court affirm the judgment.

Plaintiff Danial Dearmore, a property owner in a Kern County subdivision, brought this action to quiet title to an adjacent parcel of land (the adjacent lot) based on a claim of adverse possession. The adjacent lot was allegedly owned by defendant Kerrnita Park Community Water System District (Kerrnita Park), a dissolved corporation. Plaintiff sued Kerrnita Park along with All Persons Unknown claiming any right or title to the adjacent lot. An adjoining property owner, defendant Roberta Thomas, filed an answer contesting plaintiffs claim. Although Thomas appeared in the action individually, it is not disputed that she was a shareholder and the agent for service of process of Kerrnita Park. Kerrnita Park failed to answer the complaint and, on plaintiffs request, its default was entered by the court. The next day, plaintiff and Thomas announced they had agreed to a stipulation for entry of judgment whereby they would split the adjacent lot between the two of them. When the trial court entered judgment based on the stipulation, Kerrnita Park promptly moved to set aside its default and the resulting judgment. The motion was denied by the trial court and this appeal by Kerrnita Park followed. We conclude the trial court abused its discretion because Kerrnita Park was entitled to relief under Code of Civil Procedure section 473. Further, the trial courts use of a stipulated judgment procedure amounted to a default judgment in a quiet title action, which was contrary to the applicable statute. Accordingly, Court reverse the judgment, vacate the order denying relief from default and remand for further proceedings consistent with this opinion.

The superior court voided two amendments to the testamentary trust of James H. Wagar, Sr., deceased, and held that the original, unamended trust document was effective. The trustee who had been appointed under the amendments now claims insufficient evidence was presented at trial to support the courts finding that Wagar was mentally incompetent when he executed the amendments. The evidence supporting the finding was sufficient. Court affirm the judgment.

On October 18, 2007, appellant Paul Anthony Lopez pled no contest to assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) and admitted a strike allegation. On January 11, 2008, the court imposed a six-year prison term. On February 8, 2008, appellant filed a notice of appeal and requested a certificate of probable cause (Pen. Code, 1237.5). The court granted that request.
On appeal, appellants sole contention is that because his trial counsel did not present a motion to withdraw appellants no contest plea, appellant was denied his right to the effective assistance of counsel. Court affirm.

Petitioner (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested 18 month review hearing terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1]as to her four children. Court deny the petition.

There was a robbery at a Union Bank in Tustin inside a Ralphs grocery store by a young light-skinned black man wearing a baseball cap and a flannel shirt. The robber approached a teller, set a plastic grocery bag on the counter, and told the teller to fill it up. The demand was backed up by what appeared to be the barrel of a handgun pointed directly at the teller, and the teller noticed the robbers acorn-shaped and very beady eyes. The judgment is affirmed.

A restaurant owner hired a general contractor, a sole proprietor, to build out a restaurant. The sole proprietor incorporated his business. The newly formed corporation was run by the (former) sole proprietor and a business associate. Somewhere along the way, the corporation undertook to act as the general contractor on the restaurant project. After the project soured, the restaurant owner obtained an arbitration award against the corporation. The award was thereafter confirmed to judgment. After the corporation filed for bankruptcy protection, the restaurant owner sought to have the judgment amended to name the sole proprietor and a second corporation he had formed as additional judgment debtors. The restaurant owner contended the sole proprietor should be held liable not because he had signed the contract himself, but because he was the alter ego of the corporation. It also asserted that the second corporation should be added as a judgment debtor on both alter ego and successor liability theories. The restaurant owner appeals from an order denying the motion to amend. Court affirm. The judgment could not be amended to add either the sole proprietor or the second corporation as a judgment debtor on an alter ego theory because of due process concerns. Also, the restaurant owner did not adduce substantial evidence to show that the second corporation was the successor to the first.