CA Unpub Decisions

Appellant J.H. (appellant) appeals from a final judgment disposing of all issues between the parties. Appellants counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues are being raised by counsel on appeal and that an independent review under Wende instead is being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally. The judgment is affirmed.

Plaintiff, Benjamin Hakakha, appeals from a judgment on directed verdict in his action against defendants Quality of Life Health Corporation (QLHC)[1]and its employees David Todt, George Todt, Rowan Farber, and Josh Moorvitch, for breach of contract, fraud, and negligent misrepresentation. The action arose out of plaintiffs investment of $250,000 in QLHC. The trial court directed a verdict primarily on grounds there was no proof that plaintiff had suffered damages. A related ground sustained was that plaintiff had rendered his final scheduled payment late, with contractual consequences. We conclude that the court correctly assessed these questions, and that plaintiff cannot revitalize his damages action as one for rescission. Court therefore affirm the judgment.

Daniel Ortiz appeals a judgment following conviction of first degree murder and two counts of unlawful possession of a firearm, with findings that he committed the murder with a firearm, and that he committed all offenses to benefit a criminal street gang. (Pen. Code, 187, subd. (a), 189, 12021, subd. (d), 12022.53, subds. (b)-(d), 186.22, subd. (b)(1).) Court order the trial court to correct the abstract of judgment to reflect 723 days' presentence custody credits, but otherwise affirm.

Dan Bradley Davis appeals a judgment following conviction of forgery. (Pen. Code, 470, subd. (d).) Court affirm.

Defendants Larry Flynt, L.F.P., Inc. (LFP), LFP Video, Inc., Flynt Management Group, LLC and Lyn Heller (defendants) appeal from the order denying their motion to compel contractual arbitration and to stay judicial proceedings pending arbitration. Court reverse with directions.

Defendant Marcel Douglas Ford appeals from a judgment of conviction entered after a jury trial. The information filed on February 28, 2005 charged a total of 12 counts against defendant and two codefendants.[1] Defendant was convicted of forcible sexual digital penetration (Pen. Code, 289, subd. (a)(1),[2]count 2); false imprisonment by violence ( 236, count 3); assault and battery ( 240, 242, as lesser included offenses in count 5); forcible oral copulation while acting in concert ( 288a, subd. (d), count 10); and forcible rape while acting in concert ( 264.1, count 11).
On appeal, defendant contends that the trial court erred by excluding testimony of the victims prior drug history and failure to appear at court hearings; the jury should have been instructed with CALCRIM No. 3406 regarding consent to the sexual offenses; the trial court imposed a disparate sentence and erred in entering two judgments of conviction for the lesser offenses in count 5; and the upper term sentenced violated defendants constitutional rights. Court affirm the judgment.

Armondo Rivera was convicted by a jury of corporal injury to his spouse, making a criminal threat and assault. On appeal, he asserts the evidence was insufficient to support the spousal abuse conviction; the trial court erred in admitting evidence of his gang affiliation and history of domestic violence; and his statutory and constitutional rights were violated when the trial court excluded him from the readback of testimony during jury deliberations. Rivera also requests this courts independent review of the in cameraproceedings on his Pitchess motion. Court find no merit in any of Riveras contentions and affirm the judgment.

A modification decision.

Benedict Canyon Productions, Inc. (CPE) appeals from a grant of summary judgment requiring it to indemnify Bowers Companies, Inc. (BAS) for $1,042,000. BAS paid that amount in settlement and attorney fees in a lawsuit by employees whom BAS fired after consulting with CPE. Because there is a material question of fact regarding whether BAS was actively negligent, Court reverse.

Appellant Marvin W. Pegues was convicted of attempted murder of Victor Gouche (count two), Joanne Taylor (count three) and Raheem Moorhead (count four) in violation of Penal Code sections 664 and 187, subdivision (a),[1]with findings as to each count that the offenses were committed willfully, deliberately and with premeditation pursuant to section 664, subdivision (a); that appellant personally used a firearm during the commission of the offenses pursuant to section 12022.53, subdivision (b); that appellant personally and intentionally discharged a firearm pursuant to section 12022.53, subdivision (c); and that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in the criminal conduct by gang members pursuant to section 186.22, subdivision (b)(1). As to count two, the jury also found true the allegation that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury to Gouche pursuant to section 12022.53, subdivisions (d) and (e)(1). The jury also convicted appellant of carrying an unregistered and loaded firearm pursuant to section 12031, subdivision (a)(1) in count one, with findings that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in the criminal conduct by gang members pursuant to section 186.22, subdivision (b)(1).
Appellant was sentenced to state prison for life for the attempted murder in count two, plus an additional enhancement of 25 years to life pursuant to section 12022.53, subdivision (d).[2] In counts three and four, he was sentenced to life for attempted murder, plus an additional enhancement of 20 years pursuant to section 12022.53, subdivision (c) and 186.22, subdivision (b)(1). In count one, he was sentenced to the midterm of two years enhanced by the midterm of three years pursuant to section 186.22, subdivision (b)(1). The sentences on counts one, three and four were made concurrent to the sentence in count two.

Appellant Alfred Gutierrez was charged in the second amended information and convicted by a jury of the crimes of corporal injury to a spouse or former cohabitant in violation of Penal Code section 273.5, subdivision (a)[1]as alleged in count one, assault by means likely to cause great bodily injury in violation of section 245, subdivision (a)(1) as alleged in count two, and false imprisonment by violence in violation of section 236 as alleged in count three. In addition, allegations that Gutierrez personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e), and that he personally used a dangerous weapon, within the meaning of section 12022, subdivision (b)(1) were found true. Appellant was improperly sentenced in count one and count two. Judgment is reversed for resentencing. In all other respects, the judgment is affirmed.

Appellant Stacey L. Wells was charged with two counts of second degree robbery in violation of Penal Code[1]section 211. It was also alleged that Wells personally used a firearm within the meaning of section 12022.53, subdivision (b), and that he had suffered seven prior convictions pursuant to sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d), as well as one prior conviction pursuant to section 667, subdivision (a)(1).
On appeal, he contends that (1) the trial court erred in not giving a special jury instruction on eyewitness identification; (2) the trial court erred in excluding opinion testimony about the difficulty in distinguishing between real and replica firearms; and (3) the abstract of judgment incorrectly states appellant was convicted of two counts of first degree robbery. With the exception of the latter contention, Court find no error and affirm the judgment.

Margie Stoltz, a 77-year-old woman who had just undergone surgery for a fractured hip, fell from the operating table to the floor while medical personnel were waiting for authorization from the anesthesiologist to move her from the table to a gurney. Stoltz sued the hospital, the surgeon, and the anesthesiologist for negligence. The surgeon sought summary judgment on the ground he breached no duty to the patient and nothing he did or failed to do was causally related to Stoltzs injuries, if any. The hospital filed a joinder to the surgeons motion. The trial court granted summary judgment to both the surgeon and the hospital. Court affirm the grant of summary judgment to the surgeon, and reverse the grant of summary judgment to the hospital.

Defendant Mario Santiago appeals from a judgment of conviction entered after a jury found him guilty of transportation of cocaine (Health & Saf. Code, 11352, subd. (a))[1]in count 1, and possession for sale of cocaine ( 11351) in count 2. Defendant admitted that he had suffered a prior conviction of section 11351.5, within the meaning of sections 11370.2, subdivision (a), and 11370, subdivisions (a) and (c). The trial court dismissed count 1 in the interest of justice. The court sentenced defendant to the low term of two years on count 2 plus three years pursuant to section 11370.2, subdivision (a). It also ordered forfeiture of money found in defendants possession at the time of his arrest. On appeal, defendant claims error in sentencing and in the forfeiture order. In addition, defendant requests that this court independently review the materials sealed following the Pitchess hearing. Court find no error and affirm the judgment.