CA Unpub Decisions

Pursuant to a plea bargain, defendant John Henry Trautloff pled guilty to count 2, driving with .08 percent or more, by weight, of alcohol in his blood, with a prior felony manslaughter conviction (Veh. Code, 23152, subd. (b), 23550.5, subd. (a)(3)), and admitted a prior strike allegation. This offense was committed on February 21, 2006. In exchange, count 1, driving under the influence (DUI) of alcohol with a prior felony manslaughter conviction (Pen. Code, 23152, subd. (a), 23550.5, subd. (a)(3)), and three special allegations charged under count 2 were dismissed. Defendant was sentenced to six years in state prison. His sole contention on appeal is that defense counsel rendered ineffective assistance of counsel. The People contend the appeal should be dismissed because it challenges matters admitted by his guilty plea and defendant failed to obtain a certificate of probable cause. Court conclude that defendants ineffective assistance of counsel claim goes to the issue of his guilt of the offense to which he pled guilty; therefore, his claim would not be cognizable on appeal even if he had obtained a certificate of probable cause. Court therefore dismiss the appeal.

Jeremy Robert Mitchell appeals from a judgment imposed after revocation of his probation. His counsel raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was apprised of his right to file a supplemental brief but did not do so. Defendant was represented by counsel throughout the proceedings. There was no error in the sentencing. This court has reviewed the entire record and there are no meritorious issues to be argued.

Plaintiff Christian E. Markey III appeals from the judgment entered after a jury verdict determined that defendant Jonathan Club did not improperly convert Markeys equity interest in the Club after terminating his membership. Markey also appeals from the trial courts order granting a nonsuit on his other causes of action, including claims for breach of contract and misrepresentation. Court affirm the judgment and the nonsuit order. The Jonathan Club appeals from the posttrial order taxing more than $100,000 in trial related costs. Court affirm that order to the extent it rejected the Jonathan Clubs requests for discretionary expert witness fees and for messenger fees for documents sent to a discovery referee, but we reverse the order to the extent it denied the Jonathan Clubs requests for court reporters fees and certain messenger fees.

Calderon and others fought Gomez and his friend Alex Negrete near a Jack-in-the-Box on Century Boulevard in Inglewood. (We call appellant Calderon because his attorney captions the briefing as People v. Antonio A. Calderon.) The street fight ended with Calderon stabbing Gomez in the chest. The stab wounds killed Gomez. Calderons main issue on appeal is about racial bias during jury selection, which puts race into issue. It appears the combatants in this case were all Hispanic. Court affirm Antonio Aquino Calderons murder conviction for stabbing Humberto Gomez to death.

A jury convicted Omar Lopez (defendant) of second degree robbery. The trial court found true the allegations that defendant had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1) as well as sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
The trial court sentenced defendant to 15 years in prison. The sentence consisted of the high term of five years for the robbery, doubled to 10 years because of his strike conviction, and five years for the section 667 subdivision (a)(1) enhancement. Defendant appeals on the ground that the trial court violated his rights to a jury trial and due process under the federal Constitution by imposing the upper term sentence without jury findings.

Francisco Espinoza appeals his convictions for first degree murder (Pen. Code, 187, subd. (a)/189)[1], carjacking ( 215, subd. (a)), kidnapping to commit robbery ( 209, subd. (b)(1)), kidnapping for carjacking ( 209.5, subd. (a)), attempted second degree robbery ( 664/211) and conspiracy to commit those offenses ( 182, subd. (a)(1)). The jury found that Espinoza committed murder during a robbery ( 190.2, subd. (a)(17)), was personally armed with and discharged a firearm ( 12022.53, subd. (b)), and that a principal was armed with a firearm ( 12022, subd. (a)(1)). Espinoza was sentenced to state prison for life without the possibility of parole plus 10 years. He claims Aranda/Bruton and Crawford error in the admission of a codefendant's statement to the police, and prejudice from the redaction of his own statement to the police. He also claims prosecutorial misconduct. Court affirm.

A modification decision.

Appellant Tony Rena Snell, convicted of one count of kidnapping, two counts of making criminal threats, and one count of corporal injury to a cohabitant, contends: (1) the trial court erred in imposing separate punishments for the kidnapping count and the two counts of making criminal threats, as the threats uttered were incidental to the kidnapping; (2) the trial court erred in certain of its evidentiary and other rulings, resulting in an unfair trial; and (3) the trial court erred in imposing the high term for the kidnapping count. Respondent concedes that the punishment for one of the two criminal threat counts should have been stayed under Penal Code section 654. Court modify the judgment to stay the sentence on one of the criminal threat counts, but otherwise affirm.

Respondent Brandlin & Associates Accountancy Corporation (Brandlin) initiated arbitration against appellants Robert M. Silverman, a professional corporation, and Robert M. Silverman (collectively Silverman) to recover unpaid expert witness fees. The arbitrator awarded Brandlin all the unpaid expert witness fees that it billed ($278,975.54) even though Silverman argued that Brandlin should be limited to the reasonable value of its services ($80,000) under a quantum meruittheory. Despite Silvermans petition to vacate the arbitration award, it was confirmed by the trial court. Silverman appeals, contending that the arbitrator was guilty of the following litany of errors: (1) he failed to decide the pivotal issue at arbitration, which was the reasonable value of Brandlins fees; (2) he refused to reopen the arbitration hearing to consider a declaration from a new expert who said he would have only charged $50,000 to $75,000; and (3) he failed to honor the parties contract to decide the reasonable value of its expert witness fees at the end of the engagement. Last, Silverman argues that Brandlin acted unethically by accepting an engagement it was not qualified for and that, as a result, the parties engagement contract violates public policy. In his view, the engagement contract cannot support an arbitration award. The judgment is affirmed.

Ferdinand Pitargue Vistro appeals a judgment after his conviction of first degree murder. (Pen Code, 189/187, subd. (a).) Court conclude: 1) the trial court did not err by admitting statements Vistro made before the murder, 2) it properly admitted statements the victim made before the crime to show her state of mind, and 3) there was no prejudicial prosecutorial misconduct. Court affirm.

Bryan P. appeals from termination of his parental rights as to his son, Jacob C. He contends he was treated as a presumed father by the juvenile court and therefore should be accorded that status on appeal. Status as a presumed father is critical to Bryans argument that the order terminating his parental rights violated his right to due process, because there were neither findings of detriment nor unfitness as to him. Alternatively, he argues he was entitled to status as a nonoffending noncustodial parent whose rights could not be terminated without a finding of unfitness under Welfare and Institutions Code section 361.2.[1] Bryan also argues the juvenile court erred by failing to exercise its discretion to determine whether placement of Jacob with paternal relatives was appropriate. Court find no basis to infer that Bryan was treated as a presumed father by the juvenile court, a status for which he did not qualify. We also conclude he was not entitled to custody under section 361.2. Court affirm the order terminating parental rights. Bryan lacks standing to challenge the juvenile courts order placing Jacob in a foster home rather than with Sophie P. Alternatively, Court find no error in that decision on its merits.

A jury convicted defendant Tommy Ray Harper of second degree robbery and the court imposed the middle term of three years in state prison. The court also imposed restitution fines of $600 in accordance with Penal Code sections 1202.4 and 1202.45. The judgment is affirmed.

Defendant Michael Kenneth Allen argued with his girlfriend about a message she had received from an old male friend.[1] Defendant grabbed her by the hair, pulled her from the bathtub of their motel room, and threw her against a wall and onto the floor. He put his knee on her chest, holding her on the floor, while he called her names and yelled at her. When he let her up she got dressed and tried to leave, but he grabbed her by the jacket and threw her onto the bed. He removed her jacket, grabbed her head, held her down with so much force that she could not breathe, and continued to yell at her. At one point, she was able to leave the motel room but she returned because she had no money and knew no one in the area. Defendant threw her back onto the bed, causing her neck to pop and crack. When they both left the motel room, she tried to run away but he grabbed her and tackled her to the ground. When a passerby intervened, defendant returned to their room and the girlfriend sought help from defendants boss, who got her a separate motel room. When defendant continued to harass her, she called the police. Defendant pled guilty to corporal injury of a cohabitant. (Pen. Code, 273.5, subd. (a).)[2] In exchange, counts of assault by force likely to produce great bodily injury ( 245, subd. (a)(1)) and false imprisonment ( 236) were to be dismissed with a Harvey waiver,[3]and defendant was to be placed on felony probation with credit for time served.
Having undertaken an examination of the entire record, Court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

Appellant Sara M., mother of the minors, appeals from the juvenile courts orders denying her request for modification and terminating her parental rights. (Welf. & Inst. Code, 366.26, 388, 395.) Appellant contends the juvenile court erred by denying her a hearing on the modification petition, by failing to find the beneficial relationship exception to termination of parental rights, and in finding the minors adoptable. Court affirm.