CA Unpub Decisions

This appeal from an order setting aside a default and default judgment borders on the frivolous.[1] Respondent Pate is apparently one of several business associates involved in a deal to market certain previously unpublished Zane Grey manuscripts. According to the complaint (which was not included in the clerks transcript but which Pate put into the record in a successful motion to augment), Pate and her co-defendants allegedly failed to do their part to market the manuscripts (and certain other Zane Grey memorabilia), despite receiving over $20,400 to do so from appellant Bisbee. The order is thus affirmed.

Plaintiff, J.A., a minor by and through his guardian ad litem Cecilia Cruz, appeals from an order dismissing their first amended complaint for damages for a violation of Education Code section 49076 and negligence against defendants, the law firm of Gutierrez, Preciado & House, LLP (the firm) and two of its partners, Calvin R. House and Arthur C. Preciado. Plaintiffs first amended complaint was dismissed in response to defendants Code of Civil Procedure[1]section 425.16 special motion to strike. The parties have discussed at length issues concerning the privacy of the minors school records which were disclosed to defendants by a codefendant, the Los Angeles Unified School District (the district), in an underlying federal lawsuit filed by plaintiffs against the City of Los Angeles (the city) and its Chief of Police, William Bratton. We need not address the parties discussion concerning Education Code section 49076 as plaintiffs claims arise out of petitioning related activity and all of defendants conduct is subject to the Civil Code section 47, subdivision (b)(2) absolute litigation privilege. Court thus affirm the dismissal order.

Rodolfo R. Zuniga appeals the judgment entered after a jury convicted him of commercial burglary (Pen. Code, 459). The trial court subsequently found true the allegations that Zuniga had suffered two prior prison terms and two felony convictions that rendered him presumptively ineligible for probation (Pen. Code, 667.5, subd. (b), 1203, subd. (e)(4)). He was sentenced to a total term of four years state prison.
The judgment is affirmed.

Gerald Heinz Schiede appeals the judgment entered following a court trial in which he was convicted of failure to register as a sex offender (Pen. Code,[1] 290, former subd. (a)(1)(A), now subd. (b)) (count 1) and failure to provide true sex offender registration information (former 290, subd. (e)(2), now 290.015) (count 2). He was sentenced to 18 months state prison on count 1, and a concurrent 18 month term on count 2. He contends the trial court erred in denying his Marsden[2]motion. He also contends, and the People concede, that sentencing on count 2 should have been stayed. Court shall order the judgment modified accordingly. Otherwise, Court affirm.

Petitioner D.M. (Mother) seeks review of the juvenile courts order of July 28, 2008, which terminated reunification services and set a hearing under Welfare and Institutions Code section 366.26 to consider termination of parental rights over her son W.G. Court deny the petition.

Plaintiff sued her neighbor for damages suffered from distress allegedly caused by the neighbors dogs, his loud parties, and his noisy household. A jury ruled unanimously against plaintiff, and judgment was entered against her. She appeals, claiming the evidence does not support the verdict and alleging misconduct by both the trial court and defense counsel. Court affirm the judgment.

A jury convicted defendant Vladimir Vasiliyevich Rakin of 17 counts, including child sexual abuse, attempted rape, rape, violation of a domestic violence restraining order, and kidnapping, accompanied by threats of harm to his victims. (Pen. Code, 288 (a) & (b), 269, 664/261, 261, 273.6, & 422.) The jury also found true the special allegation that defendant committed lewd acts with multiple victims within the meaning of section 667.61, subdivision (b)(e)(5). The victims included defendants wife, his two daughters, and two teenage girls who were family acquaintances. The court sentenced defendant to 75 years to life plus 26 years and eight months.
Court shall modify the judgment by striking the sentence in count 2 and reversing the judgment in count 4. Court shall affirm the judgment as modified.

A jury convicted defendant Ismael Viveros, Jr., of murder (with the special circumstance of its occurrence in the commission of a robbery), robbery, and illegal possession of a firearm, along with related firearm enhancements. The court sustained recidivist allegations and sentenced defendant to state prison for a life term without the possibility of parole for the murder conviction, imposed a consecutive minimum term of 25 years for one of its firearm enhancements (staying the other), stayed sentence on the robbery conviction and its firearm enhancements, and imposed a concurrent term for the possession conviction. Defendant contends that the trial court should not have allowed the prosecution to amend the information after trial began to allege a different firearm enhancement. He contends that he was guilty only of extortion rather than robbery, so the court should have granted his motion for acquittal. He also disputes the sufficiency of the evidence to support the special circumstance, and the adequacy of the instruction related to it. He faults the trial court for refusing to instruct on the use of circumstantial evidence generally rather than just in the context of his mental state. Finally, he cites several deficiencies in the structuring of his sentence. Court affirm as modified.

In this action for discrimination and harassment under the California Fair Employment Housing Act (FEHA) (Gov. Code, 12900 et seq.),[1]plaintiff Tamara Cason appeals from a postjudgment order granting the motion of defendants Child and Family Institute (CFI) and Michael Dougherty for attorney fees pursuant to section 12965, subdivision (b). Despite the abysmal quality of Casons briefs, Court shall reverse the trial courts order and remand for further proceedings because the trial court clearly erred in failing to make any written findings in support of its fee award. (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 867-868 (Rosenman).)

A jury convicted defendant Tania Latice Hicks of second degree commercial burglary (Pen. Code, 459, 460, subd. (b) count one),[1]grand theft by false pretenses ( 532, subd. (a) count two), unlawful use of personal identifying information ( 530.5, subd. (a) counts four through six), possession of a forged drivers license with intent to commit forgery ( 470b count seven), and possessing counterfeiting apparatus ( 480, subd. (a) count eight). The trial court found that she had served four prior prison terms. ( 667.5, subd. (b).) She was sentenced to state prison for nine years eight months, consisting of three years on count eight, eight months consecutive on counts one, four, five and six, and four years for the prior prison terms. A concurrent term of two years was imposed on count seven. The court imposed and stayed an eight-month term on count two. The judgment is affirmed.

A jury found defendant Charlie Chong Thao guilty of first degree residential burglary (Pen. Code, 459),[1]first degree residential robbery ( 211), kidnapping for the purpose of robbery ( 209, subd. (b)(1)), second degree commercial burglary ( 459), second degree commercial robbery ( 211), felony false imprisonment ( 236) and criminal threats ( 422). The court sentenced defendant to a term of life in state prison with the possibility of parole, plus seven years.
On appeal, defendant contends, and the People concede, that the courts imposition of punishment for both first degree burglary and first degree robbery was error. Defendant also contends the court impermissibly imposed dual punishment for robbery and kidnapping for the purpose of robbery, as did it for criminal threats and kidnapping for the purpose of robbery. Court shall modify the judgment as to the first and second contentions, and otherwise affirm the judgment as modified.

In November 2006, defendant Rodolfo Perez and Rigoberto P. went up to David Kerths camper and began chatting with Kerth, who ultimately agreed to give them a ride. When Rigoberto said that he needed to stop to use the bathroom, Kerth opened the camper to get toilet paper. Defendant then came up behind Kerth, put a gun to his head, and made him lie on the ground. Defendant threatened to shoot Kerth, kicked him in the side of the head and neck, tied his hands, put him in the back of the camper, and drove away. Kerth was able to escape the restraints and kick his way out of the camper. Defendant then rolled the camper. The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that the court imposed a $200 restitution fine (Pen. Code, 1202.4) and another $200 restitution fine, which the court suspended unless parole is revoked (Pen. Code, 1202.45), and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

James Darnell Shack appeals a judgment entered on his plea of guilt to armed robbery and also petitions for habeas corpus relief. He contends that (1) the trial court (a) abused its discretion in refusing to strike his strike prior; (b) erred in imposing a sentence in excess of 20 years, which was the maximum term stated on his plea form, for the offense; and (c) improperly relied on his prior convictions to impose an upper term sentence and a five-year enhancement; and that he suffered ineffective assistance of counsel because his attorney allowed him to plead guilty at a time when he was incompetent and failed to disclose that the actual maximum sentence that could be imposed was 25 years. We reverse the judgment based on the imposition of a term in excess of 20 years and conclude that Shack is entitled to withdraw his plea on remand; based on that reversal, Court need not reach his remaining contentions and Court dismiss his petition as moot.

Yohannis Michael Johnson entered a negotiated guilty plea to one count of resisting an executive officer (Pen. Code, 69) and admitted he had one prior serious/violent felony or strike conviction ( 667, subds. (b)-(i)) and had served one prior prison term within the meaning of section 667.5, subdivision (b). Johnson was sentenced to 44 months in prison in accordance with the plea bargain. The judgment is affirmed.