CA Unpub Decisions

Defendant, Teresa Lynn Arms, appeals from her convictions for second degree robbery (Pen. Code, 211) and petty theft with a prior conviction. ( 484, 666.) Defendant argues there was insufficient evidence to support her robbery conviction. In the alternative, defendant argues that her petty theft with a prior conviction is a lesser included offense of robbery and should be reversed and, upon remittitur issuance, dismissed. The Attorney General argues that additional fees and penalties should be assessed on the fines imposed. Court affirm in part but modify the calculation of fines. We order the dismissal of count 2. The order granting probation is affirmed in all other respects.

We appointed counsel to represent appellant on appeal. After examining the record, counsel filed an opening brief in this court raising no issues and requested that we independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On March 25, 2008, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. Appellant did not respond. Court find no arguable issues and Court affirm.

Reed Radke appeals from judgment in favor of respondent City of Goleta (City) on a petition for writ of administrative mandate in which he challenged two decisions that were made by the Goleta City Council (Council) on November 13, 2006. The decisions concerned a faculty housing project proposed by the University of California, Santa Barbara (University) adjacent to the City, including a North Campus Housing Project (the project). The Council authorized a letter to the California Coastal Commission (CCC) conveying conditional support for the project, and conditionally authorized the mayor to sign a Cooperative Agreement between several entities concerning the financial impact of the project. The trial court found that appellant did not meet his burden of proving alleged violations of the Brown Act (Gov. Code, 54950 et seq.) and the Political Reform Act ( 87100 et seq.). Court affirm.

In this appeal, defendant Kevin Paul Warnock challenges the trial courts sentencing him to concurrent prison terms for unlawfully taking a vehicle and for evading a peace officer. He asserts Penal Code section 654 required the court to stay the evasion count instead of running it concurrently to the theft count. Court disagree and affirm the judgment.

A jury convicted defendant Miguel Rodriguez, Jr., of driving or taking a vehicle without consent (Veh. Code, 10851, subd. (a); count 1) and receiving a stolen motor vehicle (Pen. Code, 496d, subd. (a);[1]count 2). The trial court found that defendant had a prior juvenile adjudication of a serious or violent felony within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12) and a prior adult conviction of vehicle theft ( 666.5) for which he had served a prison term ( 667.5, subd. (b)). The court dismissed count 2 in the interest of justice. Defendants motion to strike the juvenile adjudication was denied. He was sentenced to state prison for six years (double the midterm of three years), ordered to make restitution to the victim, and ordered to pay a $1,200 restitution fine plus a 10 percent surcharge ( 1202.4) and a $1,200 restitution fine suspended unless parole is revoked ( 1202.45). On appeal, defendant contends: (1) the prior juvenile adjudication cannot support a second-strike sentence, and (2) the abstract of judgment must be corrected in two respects; the Attorney General concedes the latter point. Court modify the judgment and, as modified, affirm.

A jury convicted defendant Robert Leon Sears of abuse of a cohabitant (Pen. Code, 273.5, subd. (a)),[1]making criminal threats ( 422), and false imprisonment ( 236). In his first appeal, defendant contended (1) imposing the upper term of imprisonment on the abuse charge violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; and (2) section 654 prohibits the imposition of consecutive sentences on the criminal threats and false imprisonment offenses because those two crimes were incident to a single objective. We agreed defendants sentence for making criminal threats should be stayed and otherwise affirmed the judgment. (People v. Sears (Sept. 26, 2006, C050732) [nonpub. opn.].)
The judgment is affirmed.

In case No. 05-5079, a jury convicted defendant of first degree robbery (Pen. Code, 211/212.5, subd. (a); subsequent undesignated statutory references are to this code), infliction of corporal injury on a former cohabitant ( 273.5, subd. (a)), false imprisonment ( 236/237, subd. (a)), and stalking ( 646.9, subd. (a)). The trial court subsequently sustained allegations defendant committed each offense while on bail and violated his probation in case No. 04-1077, and sentenced him to 10 years 8months in prison. The sentence issued on October 29, 2007, is vacated and the case is remanded for resentencing in accordance with this opinion.

Defendant Creative Capital Leasing Group, LLC (CCLG) appeals a judgment in favor of plaintiffs Brett Schaffter and Austin McBride Corporation, doing business as Re/Max Real Estate Consultants (Re/Max), entered after a bench trial. CCLG contends the court erred by finding it defaulted under various agreements with third parties to purchase condominiums, thereby triggering its responsibility under a Buyer Broker Compensation Contract (Buyer Broker Contract) with Re/Max to pay it commissions. CCLG asserts that although it refused to close escrow on the units for a reason not allowed by the purchase agreements because appreciation during the lengthy escrow periods would not make resales sufficiently profitable there was no default because the developers pursued no damages against CCLG and opted to cancel the agreements.
CCLG also contends the Buyer Broker Contract with Re/Max, and an identical contract with Schaffter's assignor, broker Pickford Realty, Ltd., doing business as Prudential California Realty (Prudential), are void because they did not contain a date certain for their termination. Further, CCLG asserts Prudential's assignment of rights to commissions is void because it was made prematurely. Court affirm.

A jury convicted David Lopez Estrada of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1]as a lesser charge of assault with a deadly weapon on a peace officer ( 245, subd. (c)).[2] The trial court found true allegations that Estrada had suffered a prior prison term and did not remain free of prison custody for a period of five years after the conclusion of the term. ( 667.5, subd. (b).) The court sentenced him to a four-year prison term. Estrada contends: (1) there is no substantial evidence to support his conviction for assault with a deadly weapon; (2) the trial court gave defective instructions on the assault charge that lowered the People's burden of proof; (3) the prosecutor engaged in prejudicial misconduct by eliciting inadmissible testimony; (4) the trial court did not fulfill its duty to inquire into his defense counsel's conflict of interest or take appropriate action in view of the conflict; and (5) the court erred in calculating and awarding his custody credit. The People concede the latter point, and we direct the trial court to modify the judgment to award Estrada 336 days of presentence custody credit. As modified, Court affirm the judgment.

On March 28, 2007, a jury convicted Raymond A. Soto of first degree robbery (Pen. Code,[1] 211, 212.5, subd. (a)) and found that in the commission of the robbery he had personally used a deadly and dangerous weapon, "to wit: nunchakus" ( 12022, subd. (b)(1)).[2] In a bifurcated proceeding, the trial court found that Soto had suffered a 1999 residential burglary, which constituted both a serious felony prior conviction ( 667, subd. (a)) and a strike under the Three Strikes law ( 667, subd. (b)-(i), 1170.12) and for which he had served a prior prison term ( 667.5, subd. (b)). After denying Soto's motion to strike the prior, the court sentenced Soto to a total prison term of 14 years, consisting of the four-year midterm for the robbery, doubled to eight years under the three strikes law, one year for the weapons use enhancement plus five years for the prior serious felony conviction.As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

Defendant Vincent Valdez appeals from convictions for resisting an executive officer (Pen. Code, 69), carrying a concealed dirk or dagger (Pen. Code, 12020), and transportation of a controlled substance. (Pen. Code, 11379.) He asserts errors relating to the courts refusal to bifurcate the on-bail enhancement (Pen. Code, 12022.1) from the trial of the substantive charges, and argues the trial court failed to instruct the jury on the proper mental state for a conviction for resisting an executive officer.

Plaintiffs entered into a contract with Joe Caminiti (doing business as KNC Construction, Inc.) for the construction of a house. They also entered into a construction loan agreement with High Desert Federal Credit Union (High Desert). According to plaintiffs, Caminiti pressured them into paying more for work already included in the contract, performed defective work, and failed to finish the house on time; hence, they fired him.
Although Court do not agree with the trial courts reasoning in every particular, Court do agree that plaintiffs introduced insufficient evidence that they were entitled to recover against High Desert for any of these alleged breaches of contract. Accordingly, Court affirm.

A jury found Pedro Ramirez Calixio guilty of voluntary manslaughter and found the allegation true that he committed the offense with a knife. (Pen. Code, 192, subd. (a), 12022, subd. (b)(1).) The trial court imposed an aggregate 12-year term an 11 year aggravated term on the voluntary manslaughter and a consecutive one year enhancement on the knife allegation and he appealed. The judgment is affirmed.

Michael Jay Belback appeals from a judgment after a jury convicted him of hit and run with permanent injury or death, vehicular manslaughter by unlawful manner of driving without gross negligence (failure to maintain straight path of travel within a lane), vehicular manslaughter by unlawful act without gross negligence (unsafe turning movement), and driving on a suspended/revoked license. Belback argues insufficient evidence supports his conviction for vehicular manslaughter by unlawful act without gross negligence (unsafe turning movement), and at sentencing the trial court should have stricken that count. Neither of his contentions have merit, and Court affirm the judgment.