CA Unpub Decisions

Richard Clapham appeals from a judgment and sentence following a no contest plea. His court-appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 in order to determine whether there are any arguable issues on appeal. Court find there are none, and affirm.

Defendant appeals from a judgment following his plea of guilty. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has advised defendant that he can file a supplemental brief raising additional points he would like to call to our attention. He has not done so. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

Elliott Michael Walin appeals from conviction entered upon a plea of guilty. His court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436. The trial court granted appellant a certificate of probable cause, and the appeal, which is timely, is authorized by Penal Code section 1237.5 and rule 8.304(b) of the California Rules of Court. The judgment and sentence imposed are affirmed.

Jamie K. Smith appeals from the judgment entered upon his conviction by jury of making a criminal threat, a felony, and vandalism causing under $400 in damage, resisting a peace officer, and driving under the influence of alcohol, each a misdemeanor (Pen. Code, 422, 594, subd. (a), 148, subd. (a)(1); Veh. Code, 23152, subd. (a)).[1] He admitted a prior felony conviction within the meaning of the three strikes law ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and section 667, subdivision (a), as well as a felony for which he served a prison term within the meaning of section 667.5, subdivision (b), which was stricken in the interest of justice. He was sentenced to 11 years in prison, including the three year upper term, doubled, for making a criminal threat. Court affirm.

Michael Jerome Thomas, also known as James Michael, Miguel Thomas, Tomos Eugene Thomsa, Lil Mike, Michael James Jay, Michael James and Thomas Eugene Thomas, appeals from a judgment entered upon his conviction by jury of one count of evading a police officer, a felony (Veh. Code, 2800.2, subd. (a)), and two misdemeanor counts of hit and run driving ( 20002, subd. (a)). The trial court found to be true the allegation that appellant had suffered one prior felony strike within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). After denying appellants Romero motion, the trial court sentenced him to an aggregate state prison term of six years, consisting of the upper term of three years for the section 2800.2, subdivision (a) violation, doubled as a second strike and concurrent six month county jail terms for the two misdemeanor convictions. It stayed the four 1-year prison term priors. The trial court did not state on the record the aggravating and mitigating factors it found in imposing the upper term sentence. Appellant contends that the trial court erred (1) in failing to state on the record its findings in support of its imposition of the upper term sentence, and (2) in imposing more than the middle term because it could not do so in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court affirm.

Defendants Avag Yurdumyan, Neshan Moskovyan, Edvin Ovasapyan, and Arden Medical Pharmacy, Inc., appeal from the judgment entered after a bench trial where they were found liable for fraud and breach of contract in connection with their sale of a pharmacy to plaintiffs SP22, Inc., and Saeideh and Scott Parrish. Court modify the judgment to correct a clerical error in the amount of the courts damage award and affirm the judgment as modified.

Plaintiff NJD, Ltd. (NJD), challenges the denial by defendant City of Glendora (Glendora) of NJDs applications for development of a 145-unit residential project in the steep hillsides of the city. After a nonjury trial, the court found that NJDs inverse condemnation claim and related causes of action were not ripe for adjudication. The court also found meritless the claimed violation of a duty (see Gov. Code, 815.6) to certify the environmental impact report (EIR) within the proscribed one year period (Pub. Resources Code, 21151.5), because Glendora had denied NJDs applications for a general plan amendment, specific plan amendment and zoning code amendment to accommodate its ambitious project and thus had no duty to comply with the one year time period. Court agree with the trial courts rulings and also reject NJDs claims of prejudicial evidentiary errors at trial.

Plaintiff Arthur F. Munoz appeals the judgment in his personal injury action entered after a jury verdict in favor of defendant Jose Z. Fernandez. He claims insufficient evidence to support the judgment, instructional error, and error in denying post trial motions regarding misconduct by the jury, defense counsel and his own trial counsel. Court affirm.

Bryan James Clarke appeals the judgment entered after a jury convicted him on five counts of assault with a firearm (Pen. Code[1], 245, subd. (a)(2)), and one count of making a criminal threat ( 422). The jury also found true the allegations that Clarke personally used a firearm in committing the assaults ( 12022.5, subds. (a)-(d)). Clarke was sentenced to a total state prison term of 17 years 4 months. The charges arise from a car chase ending with Clarke firing shots at the occupants of the other car. Clarke's sole contention on appeal is that the trial court committed prejudicial error by instructing the jury with CALCRIM No. 875, which defines the elements of assault with a firearm. Clarke's attorney requested the instruction. Court conclude that any error was invited, and accordingly affirm.

Appellant K. H. (father) and Julie C. (mother) have a minor daughter born in 1996. Mother and father are unmarried and have never lived together. Since the birth of the minor, mother married respondent Joseph N. (stepfather).
Stepfather filed a petition seeking to adopt the minor. Following a contested hearing, the trial court found that it would be in the minor's best interest to allow the adoption to proceed and terminated father's parental rights. Father appeals the trial court's order. Court affirm.

A jury convicted Jose Amaya of first degree murder and dissuading a witness by force or threat and found true several special criminal street gang and firearm-use enhancement allegations. On appeal Amaya contends the trial court erred in excluding evidence directed to impeaching the credibility of the prosecutions chief witness and evidence tending to prove a third partys culpability for the murder. He also asserts the court erred by overruling his objection to the Peoples purported use of racially-motivated peremptory challenges and failing during the sentencing proceeding to strike multiple firearm-use enhancements. Court affirm.

Defendants George Ruiz (Ruiz) and Robert Lindberg (Lindberg) appeal from judgments of conviction entered after a jury trial. Ruiz was convicted of carjacking, a violation of Penal Code section 215, subdivision (a)[1], as charged in count l, and assault with a deadly weapon, a violation of section 245, subdivision (a)(1), as charged in count 2. The jury also found true the allegations that Ruiz personally used a deadly weapon in the commission of the carjacking ( 12022, subd. (b)(1)) and committed both offenses to benefit a criminal street gang ( 186.22, subd. (b)(1)(C)).

Lindberg was convicted of carjacking in count 1, and of simple assault, a violation of section 240 and a lesser included charge of assault with a deadly weapon, in count 2. The jury also found both offenses were committed to benefit a criminal street gang ( 186.22, subds. (b)(1)(C), (d)). Lindberg admitted one prior conviction of a serious or violent felony ( 667, subds. (b)-(i), 1170.12) and one prior conviction for which he served a prison term ( 667.5, subd. (b)).
On appeal, both defendants contend that there was insufficient evidence to support the gang enhancement findings. Lindberg also contends that the upper term sentence on count 1 violated his constitutional rights, he was incorrectly sentenced to a 10 year concurrent term for the gang enhancement attached to count 2, and the use of a prior juvenile adjudication to double his sentence under the Three Strikes Law violated his federal constitutional rights to due process and a jury trial. Court agree that the sentence for the gang enhancement as to count 2 was incorrect and order the matter remanded to the trial court to select an appropriate sentence on the gang enhancement. In all other aspects, Court affirm the judgments.

Judgment was entered in favor of defendants after plaintiff failed to prove at trial that he suffered any damage arising from a breach of contract. The judgment was an unqualified win for defendants; therefore, they are entitled to their contractual attorney fees as a matter of law. Court reverse the trial courts order denying defendants postjudgment motion for attorney fees.

Defendant Danny Aguilar was convicted by a jury of nine counts relating to the kidnapping, carjacking, robbery, torture, and shooting of Luis Porras.[1] Defendant received a sentence of life without the possibility of parole on count 1 (kidnapping for reward or extortion), plus an additional 25 years to life under section 12022.53, subdivision (d) (personal use of a firearm resulting in great bodily injury).[2] Defendant contends on appeal that: (1) the exclusion of expert witness testimony on eyewitness identification was an abuse of discretion; (2) the limitation on his cross-examination of the victim violated his constitutional right to present a defense and confront witnesses; (3) his convictions on counts 2 (carjacking) and 3 (kidnapping for carjacking) must be reversed for insufficient evidence that the car was forcibly removed from the victims immediate presence; (4) the court was required to instruct the jury sua sponte to give close scrutiny to the testimony of an accomplice, Andres Barreda, who received a favorable plea agreement; (5) the prosecutor committed prejudicial misconduct; (6) his trial counsel was ineffective; and (7) the cumulative effect of the errors warrants a reversal. Court reject the contentions, modify the judgment, and affirm.