CA Unpub Decisions

Thomas Bravo Valdez appeals the judgment entered after a jury convicted him of transporting, possessing, and being under the influence of methamphetamine (Health & Saf. Code, 11377, subd. (a), 11379, subd. (a), 11550, subd. (a)), and of possessing a smoking device (id., 11364). The court sentenced him to a total of three years in state prison, consisting of the midterm on the transportation count. Sentencing on the possession count was stayed pursuant to Penal Code section 654. Valdez was concurrently sentenced to a total of 270 days in county jail on the remaining counts. He was also ordered to pay various fines and fees, and was awarded 326 days of custody credit.
Court have examined the entire record and are satisfied that Valdez's attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed.

from the police while driving with willful disregard for persons or property. (Veh. Code, 2800.2, subd. (a).) The trial court imposed a 16-month lower term sentence. [] Contreras appeal[ed], contending that the trial court erred in denying his motion to discover police personnel records without holding an in-camera hearing. (Evid. Code 1043, 1045; Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We agree[d], reverse[d] the judgment, and remand[ed] for the trial court to hold a hearing. If the court f[ou]nd[] no discoverable information, or, after disclosure of any such information, f[ou]nd[] that Contreras ha[d] not shown prejudice, it should reinstate the judgment in its entirety. If the court f[ou]nd[] that Contreras was prejudiced by the failure to disclose discoverable material, it should grant a new trial. (People v. Contreras, Jr. (Dec. 22, 2005, B182519) [non-pub. opn.].) We ordered the court to review the personnel records of the two arresting officers for information regarding dishonesty, untruthfulness, or incorrect cross-racial identifications motivated by ethnic bias and to disclose any such information to Contreras. (Ibid.). Court have examined the entire record and are satisfied that Contreras attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed.

Pedro Jesse Sanchez appeals from a judgment after a jury convicted him of first degree murder and street terrorism and found true he committed the murder for the benefit of a criminal street gang. He argues the trial court erroneously denied his severance and bifurcation motion, and relying on Penal Code section 654, the court erroneously sentenced him for both the murder and street terrorism offenses. Neither of his contentions have merit, and Court affirm the judgment.

Defendant David Wayne McCaney appeals for the second time from his sentence on a burglary conviction. Previously, we remanded the case for the trial court to recalculate defendants presentence custody credits. (People v. McCaney (July 19, 2006, G035932, mod. Aug. 2, 2006) [nonpub. opn.].) Defendant has failed to show the burglary conviction was the sole reason for his loss of liberty during the additional period he contends he is entitled to presentence custody credits. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.) To the contrary, there is substantial evidence in the appellate record supporting the trial courts finding that there were additional reasons for defendants confinement. The trial court did not err in refusing to grant defendant additional presentence custody credits. Court therefore affirm.

Nga Phan appeals from an order denying her Code of Civil Procedure section 473, subdivision (b),[1] motion to set aside a default judgment against her contending the trial court abused its discretion by denying her relief. Court find no error and affirm the order.

Defendant Jose Barajas Fernandez appeals from his conviction for unlawfully taking a vehicle, in violation of Vehicle Code section 10851, subdivision (a). We reject each of defendants arguments, and affirm the judgment. First, defendant argues the trial court abused its discretion by admitting evidence that defendants prior conviction for unlawfully taking a vehicle involved the same make and model of car as the one in the present case. Court conclude the trial court did not abuse its discretion; even if it did, any error was harmless.

In a 17-count information, appellant John Shaw was charged with offenses related to a series of real estate transactions. His wife, Hsiu Mei Wu, was charged in three of the counts. The jury found Shaw guilty of three counts of grand theft, two counts of forgery, three counts of using personal identifying information without authorization, three counts of recording a false instrument, one count of conspiracy, one count of attempting to dissuade a witness, and one count of false application for a driver's license. (Pen. Code, 484-487, 470, 530.5, subd. (a), 115, 182, 136.1,118.) The jury also found true excessive taking enhancements. (Pen. Code, 12022.6, subd. (a)(3), 186.11, subds. (9)(a)(1) and (a)(2).) The jury was unable to reach a verdict as to one count of grand theft and one count of forgery. The jury found Wu guilty of one count of using personal identifying information without authorization. (Pen. Code, 530.5, subd. (a).) The jury found Wu not guilty of one count of forgery and one count of recording a false instrument. (Pen. Code, 115, 470.) The trial court sentenced Shaw to a state prison term of 14 years eight months and ordered him to pay restitution and a $20 court security fee. Wu was placed on probation with various terms and conditions including restitution and community service. Shaw challenges the sufficiency of the evidence as to two counts, conspiracy and attempting to dissuade a witness. Wu challenges the sufficiency of the evidence to support her conviction for using personal identifying information without authorization. Shaw also contends that the court committed sentencing error. Court affirm.

Plaintiff Cecilia Lucas claims that her former employer, defendant California State University Monterey Bay (the university), violated the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (38 U.S.C. 4301 et seq.) by failing to reemploy her after her military service at the same position she held prior to her military duty. She appeals from a judgment entered after the trial court granted defendants motion for summary judgment. Court affirm the judgment.

Plaintiff Jennifer Gill suffered a cut on her face when she collided with the metal pole supporting an outdoor basketball backboard. The pole was on premises of defendant Tamalpais Union High School District (Tamalpais). While still on Tamalpais property awaiting first aid treatment from Presidio Sport & Medicine (Presidio), Gill fell off a raised counter and suffered additional injuries. A jury found for Gill, apportioning 60 percent of the responsibility for her damages to Tamalpais and 40 percent to Presidio. The jury awarded Gill approximately $477,000 for economic and non-economic losses. After applying Proposition 51, the court entered judgment for Gill against Tamalpais in the amount of $336,932. On Tamalpaiss cross-complaint against Presidio for indemnification, the judge entered judgment in favor of Tamalpais for $50,572.80. All parties have appealed, and the appeals have been consolidated. The judgment, and the order denying Presidios motion for judgment NOV are affirmed.

This appeal raises the question of whether sales to hospitals of insulin syringes, glucose test strips, and skin puncture lancets are exempt from sales and use taxes under Revenue and Taxation Code[1] section 6369. The trial court ruled they were exempt, and granted summary judgment in favor of Cardinal Health 110, Inc., (Cardinal) in its tax refund action against the California State Board of Equalization (the Board). Court conclude the sales of syringes are exempt from taxation, but the sales of glucose test strips and skin puncture lancets are not. court also conclude that Cardinal should not have been awarded its attorney fees. Accordingly, court affirm in part, reverse in part, and remand for further proceedings.

Richard B. Luke (Luke) appeals from a summary judgment in favor of Collotype Labels USA, Inc. (Collotype). Luke brought the underlying action for wrongful termination in violation of public policy against Collotype. The trial court granted Collotypes motion for summary judgment on the basis that Lukes claims were preempted by the National Labor Relations Act(NLRA). Court affirm.

As the trial court dismissed appellant Prana Growth Fund Is (Prana) declaratory relief action with prejudice, it also found that respondent David Parkinson was the prevailing party and awarded him $9,495 in attorney fees and costs. (See Civ. Code, 1717 (section 1717).) On appeal from the attorney fees order, Prana contends that Parkinson was not entitled to attorney fees because (1) Parkinson was not the prevailing party; (2) the scope of the attorney fees provision did not include a landlords action for declaratory relief about the landlords statutory rights; and (3) the underlying action was not one on the contract as the issues did not turn on interpretation of the underlying rental agreement. For his part, Parkinson also seeks an award of attorney fees on appeal. Court affirm the trial courts order and find that Parkinson is entitled to reasonable attorney fees on appeal.

Prior to this current lawsuit, Air Systems Acquisition, Inc. (Air Systems Acquisition) had filed a lawsuit against Gilbane Building Co. (Gilbane), a general contractor, and Travelers Casualty and Surety Company of America (Travelers), its surety (first lawsuit). Air Systems Acquisition sought to recover amounts due for labor and materials supplied toward a heating, ventilating and air conditioning (HVAC) system in a building constructed by Gilbane (the project). Gilbane failed to respond to discovery requests in the first lawsuit, and the trial court issued evidentiary sanctions. Subsequently, the trial court granted summary judgment in favor of Air Systems Acquisition. Gilbane and Travelers filed a motion for a new trial and attempted to submit additional evidence to contest the validity of Air Systems license. The trial court denied the motion and Gilbane and Travelers appealed. We affirmed in our nonpublished opinion, Air Systems Acquisition, Inc. v. Gilbane Building Co., A112536, filed on October 27, 2006 (Gilbane I.). While the prior appeal in the first lawsuit was pending, Gilbane filed a lawsuit against Air Systems Acquisition for restitution, fraud, and declaratory relief for the money Gilbane had paid Air Systems Acquisition for work it had done on the project (current lawsuit). Gilbane asserted that Air Systems Acquisition did not have a valid contractors license and therefore could not collect money on the subcontract. The trial court granted summary judgment against Gilbanes complaint, and entered judgment against Gilbane. Gilbane appeals, and Court conclude that Gilbanes current lawsuit is barred under Code of Civil Procedure section 426.30.

Defendant and appellant Kavron Christopher Clark was convicted by a jury of felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a)(1). The trial court found defendant suffered one prior strike conviction within the meaning of the three strikes law, sections 1170.12, subdivisions (a) (d) and 667, subdivisions (b) (i), and served two prior prison terms within the meaning of 667.5, subdivision (b). Defendant was sentenced to state prison for eight years, consisting of the upper term of three years doubled pursuant to the three strikes law, plus one year for each prior prison term.
Although for a different reason than that contained in our January 19, 2006 opinion, we again conclude that the imposition of the upper term sentence did not violate defendants right to a jury trial. Accordingly, Court modify the sentence by striking one prior prison term enhancement pursuant to section 667.5, subdivision (b), reducing defendants total sentence to seven years in state prison, and reducing the restitution and parole revocation fines by $200 each. As modified, Court affirm the judgment.