CA Unpub Decisions

This sentencing appeal is before us for the third time, following the United States Supreme Courts remand, with directions to reconsider the appeal in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). The issues are whether the aggravation of appellant Michael Bells principal term sentence, based on the trial courts finding that the crime involved great violence, violated appellants Sixth and Fourteenth Amendment right to jury trial, and if so whether the deprivation was harmless beyond a reasonable doubt. Court conclude, as Court did before, that the upper term sentence was unconstitutionally imposed. We further find, however, that the error was harmless. Court therefore affirm the judgment.

Plaintiff and appellant Roland Attenborough appeals from a judgment in his favor in his lawsuit against his former law firm, Reish Luftman Reicher & Cohen (the Firm). The Firm is a corporation; Attenborough was a shareholder. Attenborough parted with the Firm on less than friendly terms. The Firm had accused him of malpractice and demanded his resignation. Attenborough brought the instant action challenging the Firms calculation of the amounts due him upon the termination of his relationship with the Firm. Specifically, Attenborough contended the Firm: (1) had calculated his final compensation incorrectly; (2) had improperly paid him amounts due under a Deferred Compensation Agreement (DCA) and Stock Redemption Agreement (SRA) by assigning to him worthless accounts receivable rather than paying the amounts in cash; and (3) owed him interest and statutory penalties for failing to timely pay him his final compensation and the DCA payment. Additionally, Attenborough and the Firm had been named in a malpractice arbitration brought by a former client. The Firm had provided a defense through its insurer, but Attenborough, distrusting the Firm, had hired independent counsel to conduct his defense. Attenborough argued, in the instant action, that the Firm was required to indemnify him for the attorneys fees he expended in defending the malpractice claim.
The judgment in favor of Attenborough is reversed and the matter remanded to the trial court with directions to permit Attenborough to amend his complaint to allege causes of action for breach of the implied covenant of good faith and fair dealing with respect to the DCA and SRA only and to conduct such further proceedings as may be appropriate and not inconsistent with the views expressed herein.

Raheem Salih Askia appeals from the judgment entered upon his conviction by jury of driving under the influence causing injury (Veh. Code, 23153, subd. (a), count 2)[1]and leaving the scene of an accident ( 20001, subd. (a), count 3).[2] In connection with count 2, the jury found to be true the allegation that defendant caused injury to more than one victim ( 23558). The trial court found to be true the allegation that defendant suffered one prior felony strike conviction within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to an aggregate state prison term of 13 years four months, consisting of the upper term of three years doubled on count 2, plus one year on that count for the multiple victim allegation, plus one-third the midterm doubled, or 16 months, on count 3, and one year for each of the five prior prison term enhancements. Defendant contends that (1) there is insufficient evidence to support his conviction of driving under the influence, which thereby violates his due process right under the Fourteenth Amendment to the United States Constitution to proof of each element beyond a reasonable doubt, (2) imposition of the upper term sentence on count 2 violated his rights under the Sixth and Fourteenth Amendments to a jury trial and due process, as set forth in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), and (3) the abstract of judgment should be corrected to reflect the correct statute defendant was convicted of violating in count 2. Court affirm.

Anthony Bill Lopez appeals his conviction for first degree murder and the finding that the murder involved infliction of torture. He argues that substantial evidence does not support the finding that he intended to inflict extreme pain for a sadistic purpose on his 21 month old son. Court conclude the condition of the victims body and the circumstances of the crime support such a finding, and affirm.

Appellant Samael Gomez repeatedly stabbed his ex-girlfriend when she walked out of a beauty parlor. He was convicted of attempted premeditated murder (count 1), aggravated mayhem (count 2), and related enhancements. He contends: (1) The trial court should not have given a jury instruction on lay opinion. (2) Count 2 should have been stayed pursuant to Penal Code section 654.[1] (3) The trial court erroneously believed he was ineligible for probation. (4) Selection of the upper term for a great bodily injury (GBI) enhancement on count 1 violated his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v.California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).

For the fourth issue, both sides have submitted supplemental briefing, at our request, on the application to this case of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Court also asked for briefing on whether the jurys finding of premeditation, which was made to increase the punishment for attempted murder, could be used as a circumstance in aggravation for the upper term, without violating the prohibition against dual use of facts.
Court find no error and affirm.

After nearly three weeks of trial, a jury returned a special verdict finding that the City of Redondo Beach did not discriminate against two employees based on their physical disabilities and did not fail reasonably to accommodate their disabilities. The employees appeal. They argue (1) the City did not meet its affirmative duty to offer them other vacant jobs before it terminated their employment; (2) the special verdict form the trial court used misstated the law; and (3) the court erred in instructing the jury and in refusing an additional instruction during deliberations. Court find no merit in these contentions. Court therefore affirm the judgment.

Appellant Vicente Guzman was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code[1]section 187, one count of willful deliberate and premeditated attempted murder in violation of sections 664 and 187, and two counts of shooting at a person from a motor vehicle in violation of section 12034, subdivision (c). The jury found true the special circumstance allegation that appellant committed the murder by shooting a firearm from a motor vehicle with the intent to inflict great bodily injury within the meaning of section 190, subdivision (d). The jury also found true a variety of firearm-related allegations. The trial court struck the special circumstances allegation and the allegations that he personally used and personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c). The court sentenced appellant to a total of 75 years to life in state prison. Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the jury's findings of premeditation and deliberation. Appellant further contends that the trial court erred in instructing the jury on self-defense by an aggressor and appellant's suppression of evidence and flight. Court affirm the judgment of conviction.

This matter involves two consolidated appeals in an action involving a dispute between three former partners of a law firm over the distribution of a $41 million contingency fee received by the firm several years after two attorneys left the firm.

In the first appeal (case no. B193863), a partner, respondent Jefferson Gross, was awarded just over $4 million in compensatory damages after a jury concluded appellants breached an implied oral agreement to pay Gross 10 percent of the contingency fee. Another partner, respondent Gary Kuist, was awarded 11 percent of the contingency fee, or about $4.5 million. Gross and Kuist also received punitive damage awards of approximately $646,000 and $1.3 million, respectively. Appellants - Grosss and Kuists former law partner, Richard E. Hodge; their former partnership, Richard E. Hodge, LLP; and the corporation formed after the partnership was dissolved, Richard E. Hodge, Inc., - assert numerous bases for reversal. The judgment in the action by Gross and Kuist against Richard E. Hodge, Richard E. Hodge, Inc., and Richard E. Hodge, LLP is affirmed. Kuist and Gross are to recover their costs of appeal.

Gabriel D. Guerrero appeals from an order granting respondent Cordova Associates, Inc.s motion to vacate a judgment in his favor for quasi-specific performance of a contract for the sale of real estate, and from the subsequent entry of judgment in respondents favor. He argues the order and entry of judgment are void for lack of jurisdiction due to an earlier notice of appeal filed by respondent. He also argues he is entitled to specific performance without having tendered or performed his contractual obligations because respondent anticipatorily breached the contract by attempting to cancel escrow before the escrow period expired. We conclude the trial court had jurisdiction to enter the order and judgment because respondent abandoned the appeal before the court acted. Court also conclude respondents attempt to cancel escrow did not relieve appellant of his obligation to deposit payment for the property; respondent had deposited a valid grant deed and was unable to unilaterally revoke that act before the escrow period ended. For these reasons, Court affirm the order and judgment of the trial court. Respondents protective cross appeal from the original judgment is dismissed as moot.

Defendant and appellant, Lovell Stanfield, appeals from the judgment entered following his conviction, by jury trial, for burglary with prior prison term and prior serious felony conviction findings (Pen. Code, 459, 667.5, 667, subd. (b)-(i)). Sentenced to state prison for eight years, Stanfield claims there was trial and sentencing error. The judgment is affirmed as modified.

Appellant Robert Parker Young was charged by felony information with elder or dependent adult abuse, resulting in death. (Pen. Code, 368, subd. (b)(1).)[1] It was alleged that he had proximately caused the death of the victim, who was 70 years of age or older. (Id., subd. (b)(3)(B).)[2] It was further alleged that the crime involved a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable; and appellant took advantage of a position of trust and confidence to commit the offense. (Cal. Rules of Court, rule 4.421(a)(1), (3) & (11).) Appellant entered a plea of not guilty and denied the special allegations. After voir dire commenced, he withdrew his not guilty plea and pleaded guilty and admitted the special allegations. The trial court denied probation and sentenced appellant to nine years in state prison, consisting of the low term of two years, plus a seven-year enhancement pursuant to section 368, subdivision (b)(3)(B). He was given 780 days of presentence custody credits and ordered to pay $2,073.56 in victim restitution. ( 1202.4, subd. (f).) Appellant claims that the trial court mistakenly believed it lacked discretion to strike his seven year enhancement, thus the matter must be remanded. Court affirm his conviction, but remand for resentencing.

Joseph Valdez pled no contest to burglary, admitted a prior juvenile adjudication for robbery and was sentenced to a term of four years in state prison. He appeals, claiming sentencing error. Court affirm.

On January 3, 2006, Jesus Gutierrez entered a negotiated plea of no contest to possession of a firearm by a previously convicted felon. Execution of a high term sentence of three years was suspended and defendant was placed on probation under certain terms and conditions, including that he pay a $200 restitution fine under Penal Code section 1202.4, subdivision (b). On March 7, 2007, defendant admitted being in violation of probation and probation was revoked. The previously suspended sentence was reinstated, and defendant was ordered to pay a $600 restitution fine under Penal Code section 1202.4, subdivision (b), and a $600 parole revocation fine under Penal Code section 1202.45.
Defendant contends, and the Attorney General aptly concedes, that it was improper to increase the restitution fine. (People v. Arata (2004) 118 Cal.App.4th 195, 202; People v. Chambers (1998) 65 Cal.App.4th 819, 823.) And, under Penal Code section 1202.45, a parole revocation fine must be in the same amount as the restitution fine. Accordingly, Court order that these fines be modified.

Hector Manuel Gutierrez appeals from the judgment entered following his negotiated plea of no contest to stalking, inflicting corporal injury on a spouse or cohabitant, and two counts of felonious assault. The plea arose from an incident that culminated on March 16, 2007, when defendant grabbed Yadira P. by her hair and dragged her, and her brother who was trying to render assistance, alongside defendants car. On July 26, 2007, defendant was sentenced to an aggregate state prison term of six years eight months. On appeal, he contends that the trial court exceeded its jurisdiction in entering a protective order against him. Court agree.