CA Unpub Decisions

Defendant appeals from his conviction of second degree burglary of a motor vehicle (Pen. Code[1], 459) and receiving stolen property ( 496, subd. (a)), with seven prior felony convictions ( 667, subds. (b) (i)). He asserts the prosecutor engaged in misconduct by failing to disclose or deliver evidence favorable to defendant and arguing that defendants version of events was a big lie based on the absence of that evidence. Additionally, he asserts the court erred in instructing the jury to view defendants oral statements with caution, when those statements were exculpatory, failed to determine whether defendant was eligible for probation and whether probation should be granted, and abused its discretion in refusing to strike all, or all but one, of his prior strikes. Court affirm.

Christian Thomas appeals from a judgment that sentenced him to state prison for six years and eight months, after a jury found him guilty of second degree robbery (Pen. Code, 211, 212.5, subd. (c)), carjacking (Pen. Code, 215, subd. (a)), and three related offenses. Thomas argues there is insufficient evidence to sustain the robbery and carjacking convictions because he did not use force or fear greater than necessary to take a vehicle from its owner. Court disagree and affirm.

Nelsiy Vega appeals from a judgment denying her petition to be determined the putative spouse of decedent, George H. Falkner. Vega and Falkner lived together for a number of years before Falkner became seriously ill and was hospitalized. Four days before Falkner died, a priest performed a marriage ceremony for Vega and Falkner at Falkners bedside. No marriage license was obtained before Falkners death in October 2005. The judgment is affirmed.

In a role reversal of the archetypal case, ex-employee Christopher Chen appeals the trial courts denial of his petition to compel contractual arbitration against his ex-employer, Nicholas Laboratories, LLC.[1] The court found Chen did not meet his statutory burden of establishing the existence of a written arbitration agreement between the parties. (Code Civ. Proc., 1281.2.) Chen failed to attach the alleged agreement to his petition, instead relying on a declaration claiming he recalled signing a document with a broad arbitration agreement covering all disputes. Because the court, as the trier of fact, was entitled to find Chen did not meet his burden of establishing the existence of an arbitration agreement, Court affirm.

R. C., Sr., appeals from the juvenile courts order ruling that his son, 13-year-old R. C., Jr., would not be sent to live with him in Ohio. He claims on appeal that there was no substantial evidence to support the courts underlying finding that it would be detrimental to R. C., Jr., to live with him. The Monterey County Department of Social and Employment Services (hereafter the department) agrees with R. C., Sr., and urges that Court reverse the order. For his part, R. C., Jr., urges that Court affirm it.

In a prior action, plaintiff Peninsula Nephrology, Inc. (Peninsula) sued a general contractor covered by insurance policies issued by two insurers. One of the insurers provided a defense, but the other, defendant Claremont Liability Insurance Company (Claremont), refused to participate. The litigation was ultimately settled and a stipulated judgment was entered that was, by agreement, nonrecourse to the defendants. Actual payments by the defendants covered only about half of the total judgment amount. Peninsula then filed this action to compel Claremont to pay the unpaid portion of the judgment. After a bench trial, the court concluded that Peninsulas actual damages were considerably less than the amount of the judgment and refused to compel payment from Claremont. Peninsula subsequently moved pursuant to Code of Civil Procedure section 663 to vacate the judgment, contending that the trial court erred in requiring it to prove that the judgment was reasonable in amount. The trial court denied the motion, and Court affirm.

Defendant Ruben Garcia pleaded no contest to one count of possession of methamphetamine. (Health & Saf. Code, 11377, subd. (a).) After numerous probation violations, the trial court sentenced him to the middle term of two years in state prison. Appellate counsel has filed an opening brief that raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Court find no arguable issues and affirm.

Larry Flynt and L.F.P, Inc. (LFP) (collectively, Flynt defendants) appeal from the trial courts judgment confirming an arbitrators award in favor of Elizabeth Rene Raymond in her sexual harassment suit. The Flynt defendants challenge the trial courts denial of their motion to vacate the arbitrators award, based on the courts conclusion that the provision for judicial review in the arbitration agreement was unenforceable. Court reverse and remand to the trial court.

A modification decision.

In his petition for writ of habeas corpus, Jorge Recinos argues that his trial counsel and his appellate counsel were constitutionally ineffective in their representation of him. We conclude that Recinoss trial counsel rendered ineffective assistance when he informed the trial court that this court mandated a particular sentence following an appeal. The result of this deficient conduct is that the trial court never exercised its discretion in considering the appropriate sentence, thereby undermining confidence in the outcome of the proceeding. Court grant Recinoss petition and order the case remanded to the trial court for resentencing. Court reject Recinoss other claimed examples of ineffective assistance of counsel.

Plaintiff and appellant Steven Levy appeals from a judgment dismissing his personal injury action against defendant and respondent Raymond Manuel Mata following an order granting a motion for a terminating sanction based on Levys failure to comply with a court-ordered psychiatric examination. Levy contends: 1) the trial court abused its discretion by awarding monetary sanctions and costs against an indigent party; 2) the trial court abused its discretion by awarding monetary sanctions against him in connection with the denial of his motion to compel further responses from Mata; 3) the psychiatric examination order was invalid under Code of Civil Procedure section 2032.320,[1]because it was not based on a showing of exceptional circumstances and Levy had stipulated to withdraw his emotional distress claims; 4) the psychiatric examination order violated section 2032.320, because it was unlimited; 5) the trial court abused its discretion by ordering a psychiatric examination based on documents obtained in violation of Levys right to privacy; 6) the trial court abused its discretion by ordering monetary sanctions for failing to appear for the psychiatric examination; 7) the trial court abused its discretion by imposing a terminating sanction for a second failure to appear for a psychiatric examination, because the examination order was invalid and the trial court could have imposed a lesser sanction; 8) monetary sanctions awarded in connection with the terminating sanction were excessive, because defense counsel had sufficient notice of nonappearance; and 9) the trial court abused its discretion by imposing sanctions for failing to attend physical examinations. Court conclude the psychiatric examination order met statutory requirements, and the trial court did not abuse its discretion as to any of the discovery and sanctions orders. Therefore, Court affirm.

Defendant Ricardo Rodriguez appeals from the judgment entered following revocation of probation, previously granted upon his guilty plea to selling a controlled substance (heroin) (Health and Saf. Code, 11352, subd. (a)). Rodriguez appeals the trial courts refusal to readmit him to probation as recommended by the probation department. Court conclude the trial court did not abuse its discretion and affirm the judgment.

Defendant and appellant Catalina Juarez appeals from the judgment rendered in favor of plaintiff and respondent Jose Martinez following a bench trial. Juarez contends the judgment is vague and ambiguous and does not address certain issues. She asserts that the matter must be remanded for the trial court to clarify its ruling. Court conclude Juarez has forfeited any claim of error and affirm.

Maitreya Mumanie Kadre (appellant) has filed an appeal challenging an order of the probate court that denied her second petition to have admitted to probate what she asserts is a holographic will of decedent Gregory H. Comstock, aka Gregory Colbrook (decedent). Respondents in this appeal are Alp Tolun, who is the administrator of the decedents estate (the administrator), and Thomas White, who is described in the record as a first cousin and heir of the decedent (the claimant heir). The probate courts denial of appellants second petition to probate a will was based on statutory time parameters for filing such petitions. Those time limitations are found in Probate Code section 8226. Like the trial court, we find that the provisions in section 8226 make the petition to probate a will untimely. Court therefore affirm the trial courts order.