CA Unpub Decisions

Following a jury trial, Efren Gonzalez Martinez (appellant), charged and tried as Miguel Angel Martinez, was convicted of felony evading a police officer (Veh. Code, 2800.2, subd. (a)). The trial court sentenced appellant to the midterm of two years in prison, less 267 days credit. Appellant was ordered to pay a $400 restitution fine (Pen. Code, 1202.4, subd. (b)); a $400 restitution fine stayed pending successful completion of parole (id., 1202.45); a $20 court security fee (id., 1465.8); and $500 restitution to victim Ben Webb (id., 1202.4, subd. (f)). Appellant contests only the $500 direct restitution on various theories. Court affirm.

Don Fox Greene (Greene) appeals from a judgment entered in favor of Ritchie Bros. Auctioneers (America) Inc. (Ritchie) in his breach of contract and fraud action. On appeal, he challenges the trial courts (1) decision to exclude parol evidence concerning the contract, (2) refusal to find the certain terms in the contract unconscionable, (3) two evidentiary rulings, and (4) entry of nonsuit. Court conclude all of his contentions lack merit, and Court affirm the judgment.

A jury convicted Damascus Bell of possession of cocaine base for sale. (Health & Saf. Code, 11351.5.) The court found true allegations Bell had been convicted of the same offense in 1995 (Health & Saf. Code, 11370.2, subd. (a)) and served five prior prison terms (Pen. Code, 667.5, subd. (b)). He was sentenced to prison for a total term of eight years. The court imposed the midterm of four years for possession for sale of cocaine base, three years for the prior narcotics conviction, and one year for all five prior prison term enhancements. On appeal, Bell challenges the sufficiency of the evidence to prove he possessed cocaine base for the purpose of sale rather than for his own personal use. He further contends the trial court erroneously admitted evidence of his 1995 conviction for possession of cocaine base for sale and improperly imposed concurrent one year terms on four of the five prior prison term enhancements. The Attorney General concedes the trial courts sentencing error, and Court agree the imposition of concurrent terms constitutes an unauthorized sentence subject to correction on appeal. Therefore, the judgment is modified to strike four of the five one year prior prison term enhancements for sentencing purposes. In all other respects, the judgment is affirmed.

In this attorney fee dispute, Nancy Carlson appeals from a judgment in favor of attorney Dan Callahan and the law firm Callahan & Blaine (hereafter collectively referred to as Callahan & Blaine unless the context indicates otherwise) after a demurrer to her complaint was sustained without leave to amend on the ground her causes of action were time barred. Carlson contends she adequately pled facts indicating the statute of limitations was tolled while her petition for an attorney fee dispute arbitration under the Mandatory Fee Arbitration Act (Bus. & Prof. Code, 6200 et seq.; MFAA), was pending before the California State Bar. Court conclude her complaint is barred by principles of res judicata because Callahan & Blaine obtained a judgment in a consolidated action declaring Carlsons claims were time barred and Carlson has not appealed that judgment.

The trial court dismissed without prejudice Anthony Aulisio, Jr.s, breach of contract action filed against Sidney Serafini. Aulisio alleges the court abused its discretion because (1) he did not receive notice the court was considering dismissal, and (2) he had good cause to delay prosecution because he was waiting for the bankruptcy court to consider the same issue. Court find both contentions lack merit and affirm the judgment of dismissal.

A judgment was filed in the Orange County Superior Court on December 15, 1993, in favor of La Sierra Financial Services against Nadia Abu-Assal, for about $160,000. There was an appeal (G015531), and the judgment was eventually affirmed in 1998. In 1996, during the pendency of the appeal, La Sierra assigned the judgment to Yacoub and Ellen Nashed (more on that below). On December 3, 2003, Yacoub filed a form application for, and renewal of, the judgment. However, the form application was not served on Nadia Abu-Assal until more than three years later, specifically on March 9, 2007. Later that month Nadia Abu Assal filed a motion to vacate or modify the renewal on the following theories:

R.G. challenges the juvenile courts decision to terminate her parental rights over her two-year-old son Michael. Even though she failed to overcome her drug addiction after 18 months of reunification services, R. contends there are exceptional circumstances favoring the retention of her parental rights. Particularly, she invokes the so called relative caretaker and benefit exceptions to termination. However, Court find substantial evidence to support the trial courts determination that these exceptions are inapt. Accordingly, Court affirm the judgment.

This is a case of first impression. Many such cases present interesting analytical challenges; others result only in rueful head-shaking. This, unfortunately, falls into the latter category.
Daybreak Group, Inc. (Daybreak), appeals from an order quashing its service of summons on defendant Three Creeks Ranch, LLC (Three Creeks). Daybreak does not challenge the merits of the order, but instead contends that the court should not have even entertained the motion because the out-of-state law firm representing Three Creeks did not apply to appear as counsel pro hac vice. To be clear, the individual attorney who filed and appeared on the motion is a member of our State Bar just one who happens to practice with a firm located in Montana and he was thus both fully authorized to practice in our state courts and fully subject to the disciplinary jurisdiction of the State Bar with respect to his appearance. Daybreak offers no authority for its contention that a law firm, as opposed to an individual attorney, could properly be admitted pro hac vice in our courts, let alone that it might be obligated to apply for such status. Because Three Creeks was properly represented in the lower court by an attorney who is licensed to practice law in this state, the court did not err in considering the motion to quash on its merits. The order is affirmed.

Defendant Bobby Chung was charged by information with uttering a nonsufficient fund check with the intent to defraud (Pen. Code, 476a)[1] after suffering a prior conviction under section 476. The information further alleged that defendant had a prior strike conviction and eight prison prior convictions under section 667.5, subdivision (b). After a court trial, defendant was found guilty. The court also found true the allegations that defendant had a strike prior and eight prison priors. Defendant was sentenced to a term of 16 months consecutive to his sentence in a separate criminal case (Santa Clara County Superior Court case No. EE403788). On appeal from the judgment, defendant contends that there was insufficient evidence to support his conviction. Court conclude that the evidence was sufficient and affirm the judgment.

A jury convicted defendant Vasega F. Tili of first degree murder with personal use of a firearm. (Pen. Code, 187, subd. (a), 189, 12022.53, subd. (d).) The trial court sentenced defendant to 50 years to life. Defendant contends the trial court had an impermissible ex parte communication with a juror during deliberations. We agree and order a limited remand, as Court explain below.

Appellant Juan Ramon Velasquez (Velasquez) appeals from his conviction of attempted murder, participation in a criminal street gang, and two counts of assault with a firearm. He maintains that there was no substantial evidence of his participation in a criminal gang, and that the court erred in not excluding or limiting the testimony of a gang expert. Velasquez also argues that the court erred in denying his motion to suppress a statement by one of the victims, and that the effect of these cumulative errors denied him his due process rights. He urges that, to the extent any of his claims on appeal were forfeited, he received ineffective assistance of counsel. Finally, he maintains the court erred in sentencing. Court affirm.

A modification decision.

Defendant Novella Carraway appeals after pleading no contest to misdemeanor receiving stolen property. (Pen. Code, 496, subd. (a).) She contends the trial court improperly denied the various motions she filed aimed at suppressing evidence. Court affirm.

Defendant James Ophus Burnette timely appeals from an October 5, 2006 judgment sentencing him to three years and eight months in state prison. On December 19, 2005, a jury acquitted Burnette of robbery, but found him guilty of the lesser included offense of grant theft (Pen. Code, 487). The jury also convicted him of two counts of assault by force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)). Burnette asserts a single error on appeal: that the trial court erred in refusing to instruct the jury with CALJIC Nos. 16.300 and 14.21 regarding the elements of petty theft and the distinction between petty and grand theft. Court conclude that the trial court sufficiently instructed the jury regarding petty and grand theft, and Court thus affirm.