CA Unpub Decisions

Appellant Brian Christopher Applegate challenges his conviction for two counts of forcible oral copulation, sodomy, and criminal threats. He argues the court improperly excluded evidence and thereby deprived him of an opportunity to present a defense and to challenge the credibility of one of the victims. Court find the excluded evidence to be irrelevant and affirm the judgment.

Wayne Yee, an attorney, appeals from an order awarding attorney fees to his opponent following relief from default judgments. Appellant challenges the amount of those fees but demonstrates no error. Court affirm.

The jury found defendants Martin Marquez and Ruben Jauregui[1]guilty of murdering Jason Verde in violation of Penal Code section 187, subdivision (a),[2]specially finding defendant Marquez guilty of murder in the first degree and that he personally and intentionally fired a handgun to commit the crime ( 12022.53, subds. (b)-(d)). Defendant Jauregui was found guilty of second degree murder with a special finding that he knew a principal was armed ( 12022, subd. (d)). As to defendant Marquez, the trial court imposed a sentence of 25 years to life for the first degree murder and a consecutive term of 25 years to life for the firearm enhancement. Defendant Jauregui received a term of 15 years to life for the second degree murder plus a consecutive two-year term for the principal armed enhancement.In defendant Marquezs timely appeal, he contends (1) the trial court violated his federal constitutional rights to a fair jury trial and due process by admitting evidence of his membership in a party crew named PIMP, contending it was tantamount to prejudicial evidence of criminal street gang affiliation, and (2) imposition of the consecutive term for the firearm enhancement violated the federal and state constitutional proscriptions against cruel and unusual punishment. Defendant Jauregui timely contends in his appeal that his pretrial statement to police officers was admitted in violation of his federal constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendants jointly claim the judgment must be modified to reflect that the direct victim restitution award is joint and several as to both defendants, and that no state court construction fines should be assessed as to either defendant under Government Code section 70372, subdivision (a). Court modify the judgment to reflect that defendants are jointly and severally liable for the direct victim restitution award, and otherwise affirm the judgment.

The jury found defendant Terry Turner guilty of the first degree murder of 16-year-old Jerry S. (Pen. Code, 187, subd. (a).) The jury found true the allegations that defendant personally used a firearm causing death within the meaning of section 12022.53, subdivision (d) and the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)). On March 20, 2007, defendant was sentenced to state prison for 50 years to life. Defendant timely appealed.
Defendant contends the judgment should be reversed because the prosecution failed to disclose evidence prior to trial linking his tattoo Young Boss to a known gang member who lived at defendants address. We conclude defendant forfeited the issue by failing to raise it below, and defense counsels failure to object to the evidence was not ineffective assistance of counsel. Therefore, Court affirm the judgment.

Joshua Adams appeals a judgment following conviction of making criminal threats, possessing a controlled substance, and resisting a police officer, with a finding that he suffered a prior serious felony conviction. (Pen. Code, 422, 148, subd. (a)(1), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d); Health & Saf. Code, 11350, subd. (a).) Court affirm.

A testator executes a trust amendment dividing his estate equally between his son and daughter. Nine months later he executes another amendment leaving the bulk of his estate to his son. Both amendments contain a no contest clause. Daughter files a civil action and probate petition challenging the validity of the most recent amendment, arguing that son exercised undue influence to induce father to amend the trust. The trial court found that the daughter's filing of the petition violated the no contest clause and ruled that she had forfeited her interest in the trust. She appeals the trial court's order of forfeiture. Court affirm.

Appellant Anthony Valento filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1085.[1] Respondents City of Burbank, Burbank Civil Service Board and Mary J. Alvord demurred on the grounds that the petition was required to be brought pursuant to section 1094.5 and was barred by the 90-day statute of limitations in section 1094.6, subdivision (b). The trial court sustained the demurrer without leave to amend, and appellant filed a motion for new trial asserting that the statute of limitations was tolled due to respondents failure to provide the required mandatory notice of the limitations period pursuant to section 1094.6, subdivision (f). The trial court took the motion off calendar, believing that it had been divested of jurisdiction due to the filing of appellants notice of appeal. Appellant contends the trial court erred in refusing to consider and grant his new trial motion and, alternatively, that it erred in sustaining the demurrer without leave to amend. Court agree that appellant should be given leave to amend and therefore reverse the judgment of dismissal.

Michael D. Cutbirth (respondent) was the president of Clipper Windpower, Inc. (appellant). Pursuant to an employment agreement (Employment Agreement), he was granted options to purchase appellant's stock. There was no time period for the exercise of the stock option in the Employment Agreement. After respondent left the company, appellant refused to allow him to exercise the options. Appellant contended that the options had terminated pursuant to the provisions of its incentive stock option plan (Plan) which provided a three month period for the exercise of the options.
Appellant contends that the trial court erroneously concluded that (1) the Employment Agreement is an integrated writing not subject to the Plan three-month expiration provision, (2) an implied term of the Employment Agreement is that respondent shall have a reasonable period of time in which to exercise the options, (3) five years is a reasonable period of time, and (4) respondent is not estopped from denying that his stock options expired three months after the termination of his employment. Court affirm.

After a court trial, defendant and appellant William A. Bradford was found guilty of one count of filing a false or forged instrument and three counts of forgery. On appeal, he contends that the evidence is insufficient to support the judgment on any of the counts. Although the People concede that there is insufficient evidence to support defendants conviction on count 5 for forgery, we find that the evidence is insufficient as to all three forgery counts. Therefore, Court affirm the judgment as to count 1, but reverse it as to counts 3, 5, and 6.

Sean Andre Borunda appeals from judgment entered following the denial of his motion to suppress and his subsequent no contest plea to count 2, receiving stolen property (Pen. Code 496, subd. (a)).[1] He was sentenced to prison for the middle term of two years and contends the superior court violated the principles of stare decisis when it concluded that an officer need not be subjectively aware of a suspects parole status before searching him, and, as a result, erroneously denied appellants motion to suppress evidence of the methamphetamine found. For reasons stated in the opinion, Court reverse the judgment.

Convicted of resisting an executive officer and misdemeanor battery against a peace officer, defendant Harold Simpson appeals, arguing that the trial court erred in: (1) denying his Wheeler/Batson motion; (2) admitting evidence of a prior conviction for resisting an executive officer; (3) failing to give a unanimity instruction; (4) denying his Marsden motion; (5) imposing the upper term for resisting an executive officer; and (6) denying him presentence custody credits. Finding no such error, Court affirm the judgment.

Defendant appeals. He contends (1) insufficient evidence supports his conviction, (2) the trial court erred in continuing trial beyond the 60th day, and (3) the trial court procedurally erred in its consideration of a commitment to the California Rehabilitation Center (CRC). Court reject defendants first two contentions but agree remand is required for the trial court to properly follow the procedures for commitment to CRC.

Defendant Xavier Cleveland Jones pled no contest to possession of cocaine base for sale. On appeal, he challenges the trial courts denial of his motion to suppress evidence. He contends the trial court erred by admitting evidence seized as a result of an illegal patdown search of his person and an illegal search of his car. Court disagree and affirm.

A modification decisison.