CA Unpub Decisions

Defendant Matthew Bandy pled guilty in case No. SF00-351 to possession of methamphetamine and admitted he had a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).[1] The trial court sentenced defendant to the upper term of three years, plus one year for the enhancement. The court then suspended execution of defendants four-year state prison sentence and placed him on supervised probation for five years. After numerous violations of probation in case No. SF00-351, defendant was charged in case No. SF05-542A with unlawful possession of a billy club, with allegations that defendant had sustained five previous felony convictions within the meaning of section 1203, subdivision (e)(4). On appeal, defendant contends the trial court was required to hold a hearing to determine if he had willfully violated the terms of his conditional release. Court find no reversible error.

Acquitting him of murder, a jury convicted defendant David Wayne Norton, Jr., of the lesser included offense of involuntary manslaughter (sustaining an allegation that he was personally armed with a firearm), and of being a convicted felon in possession of a firearm. The court imposed the upper term for the manslaughter conviction (based in part on his serving a prior prison term, and numerous or increasingly serious previous convictions), the upper term for the firearm enhancement (based on his status . . . as a convicted felon and the manner in which he used the firearm), and imposed a consecutive sentence for the possession conviction (finding, inter alia, that he had antecedent possession for a purpose independent of the commission of manslaughter). On appeal, the defendant contends the court erred in failing to instruct the jury that it must unanimously agree on facts underlying the possession conviction, and to require the jury to make express findings on these facts. He also contends that the facts as developed at trial preclude imposing the firearm enhancement because the manslaughter conviction involved a firearm. Finally, he asserts that imposition of the upper terms and consecutive sentences violate his right to a jury trial. Court affirm.

Acquitting him of murder, a jury convicted defendant David Wayne Norton, Jr., of the lesser included offense of involuntary manslaughter (sustaining an allegation that he was personally armed with a firearm), and of being a convicted felon in possession of a firearm. The court imposed the upper term for the manslaughter conviction (based in part on his serving a prior prison term, and numerous or increasingly serious previous convictions), the upper term for the firearm enhancement (based on his status . . . as a convicted felon and the manner in which he used the firearm), and imposed a consecutive sentence for the possession conviction (finding, inter alia, that he had antecedent possession for a purpose independent of the commission of manslaughter). On appeal, the defendant contends the court erred in failing to instruct the jury that it must unanimously agree on facts underlying the possession conviction, and to require the jury to make express findings on these facts. He also contends that the facts as developed at trial preclude imposing the firearm enhancement because the manslaughter conviction involved a firearm. Finally, he asserts that imposition of the upper terms and consecutive sentences violate his right to a jury trial. Court affirm.

This is the second appeal following a complaint filed by plaintiff Dane Ruddell against defendant George Viscia alleging defamation, intentional interference with prospective economic advantage, and intentional infliction of emotional distress. The complaint was based on a letter Viscia wrote and sent to at least one of Ruddells clients or prospective clients stating Ruddell had been terminated from his prior employment with a school district and engaged in questionable business dealings with at least two school districts. Viscia filed a special motion to strike the complaint under Code of Civil Procedure section 425.16. The trial court denied the motion, concluding that Viscia failed to make a prima facie showing that the letter was connected to a public issue. In the first appeal, we disagreed with the trial courts conclusion and reversed and remanded the matter to the trial court to determine whether Ruddell could demonstrate a probability of prevailing on his claims. (Ruddell v. Viscia (Aug. 31, 2006, C049043) [nonpub. opn.], pp. 12-13.) On remand, the trial court again denied the motion, concluding that Ruddell had met his burden of demonstrating that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts.

Defendant Roger Pyatt Price entered no contest pleas to charges he committed residential robbery (case No. 06F8228), illegally possessed a firearm (case No. 06F7991), evaded an officer (case No. 06F7994), and committed a second count of robbery (case No. 06F9746). In exchange, he received a stipulated 16-year sentence.

The sole issue on appeal is created by a curious inconsistency between two versions of what otherwise appear to be identical reporters transcripts of the sentencing proceedings in the amount of the restitution fine imposed. In the reporters transcript detailing the January 30, 2007, sentencing hearing submitted to this court, the trial court imposed restitution and parole revocation fines of $3,200, respectively. In the version of the reporters transcript included as a component of the clerks transcript, the trial court appears to have imposed restitution and parole revocation fines of $200 each. The form felony docket and minutes of the sentencing proceeding, the minutes signed by the judge, and the abstract of judgment all report fines of $3,200.

Defendant Judah Titus Johnson was convicted of unlawfully taking or driving a vehicle (Veh. Code, 10851, subd. (a) (section 10851(a))) and receiving that same vehicle as stolen property (Pen. Code, 496d, subd. (a) (section 496d(a))). The trial court imposed the upper term of three years for the violation of section 10851(a), doubled to six years for a prior strike conviction, imposed the upper term of three years for the violation of section 496d(a), double to six years for a prior strike conviction, stayed pursuant to Penal Code section 654, and imposed two consecutive terms of eight months each for two other cases in which defendant had violated probation.
We find no error in the trial courts evidentiary rulings that were properly preserved for appellate review, and -- construing defendants conviction for violating section 10851(a) as a conviction for posttheft driving -- we conclude that both of defendants convictions may stand. We also find no prejudicial error in the trial courts failure to give a unanimity instruction. Court do, however, agree that the trial court erred in imposing an upper term based on a single prior conviction for drug possession, and Court therefore vacate defendants sentence and remand the case for resentencing.

Noel W. Spaid, a licensed attorney, challenges the trial court's granting of a summary judgment in favor of the California Franchise Tax Board (Board). After Spaid failed to file tax returns with the Board for two years, the Board sent her repeated notices advising her to file or explain why she did not have to file and warning her that if she did not do so, the Board would estimate her tax liability. Spaid failed to file the returns and failed to provide the Board with information indicating she was not required to file. Accordingly, the Board estimated her tax liability and, when she did not pay, seized the funds from her bank account. During pretrial discovery and at the summary judgment proceedings, Spaid continued to refuse to provide information about her income, instead relying on an argument that the Board's estimations of her tax liability were invalid assessments without factual foundation. Court hold the Board's estimations of Spaid's income based on her active attorney license and the average earnings of attorneys rested on a reasonable factual foundation and were therefore valid tax assessments. Under well established tax principles, a tax payer has the burden to show a reasonably based tax assessment is incorrect. Because Spaid refused to provide the information necessary to determine her actual tax liability, on this record she cannot carry her burden to prove the Board's assessments were incorrect. Accordingly, the trial court properly granted summary judgment.

This appeal is the latest chapter in a series of cases in which plaintiff/cross-defendant James P. Panther seeks legal malpractice damages from several of his former attorneys, individually and as law firms, for alleged lost opportunities stemming from the disappointing outcome of certain underlying actions concerning a real estate development project which never came to fruition. (E.g., Panther v. Park (July 16, 2003, D038066 [nonpub. opn.]) (our prior opinion); Panther v. Micheli (May 15, 2007, D048047 [nonpub. opn.]) (our prior Micheli opinion).)
In this case, the trial court granted a motion for summary adjudication filed on behalf of defendants/cross-complainants Mark Mazzarella and Mazzarella, Dunwoody & Caldarelli, LLP (sometimes collectively "MDC") as to the first and second causes of action in Panther's fourth amended complaint ("FAC"). A related ruling was also issued concerning an affirmative defense in Panther's answer to MDC's cross-complaint, and some cross-complaint issues remained for trial. However, summary judgment was entered for the individual defendant Mark Mazzarella only and plaintiff appeals. Court affirm the summary judgment and adjudication.

In this action for recovery of unpaid overtime compensation, Mark R. Combs appeals judgments entered in favor of his former employer Skyriver Communications, Inc. (Skyriver), a wireless broadband Internet service provider, and its then-interim chief executive officer (CEO) Massih Tayebi. During his employment at Skyriver from June 2001 to November 2004, Combs served first as manager of capacity planning and then as director of network operations. Alleging in his amended complaint that he was misclassified as an employee exempt from the overtime compensation laws and, as a result, was denied overtime pay and meal and rest breaks, Combs asserted three causes of action against both Skyriver and Tayebi (together defendants) for (1) violation of Labor Code[1]sections 510 and 1194 and applicable Industrial Welfare Commission (IWC) wage orders; (2) violation of the Unfair Competition Law (the UCL) (Bus. & Prof. Code, 17200 et seq.); and (3) penalties under the Private Attorneys General Act of 2004 (the PAGA) ( 2698 et seq.). Combs sought to hold Tayebi liable on the theory Tayebi was Skyriver's alter ego.
Court conclude the court did not err in denying Combs's motion for a continuance to conduct further discovery, in granting summary judgment in favor of Tayebi, or in granting judgment in favor of Skyriver. Accordingly, Court affirm the judgments.

A jury convicted Deron Ford of first degree murder (Pen. Code, 187, subd. (a))[1]and found that he personally used a firearm, discharged a firearm and caused death with a firearm ( 12022.53, subds. (b)-(d)). The court found that Ford committed the offense for the benefit of a gang. ( 186.22, subd. (b)(1). The court sentenced Ford to prison for 60 years to life: 25 years to life for murder, plus 25 years to life for the enhancement under section 12022.53, subdivision (d), plus 10 years consecutive for the gang enhancement. The court stayed the enhancements under section 12022.53, subdivisions (b) and (c), pursuant to section 654. The court also imposed direct victim restitution under section 1202.4, subdivision (f), joint and several with Ford's codefendants. Ford appeals, contending: (1) the 10-year gang enhancement should be reversed and a 15-year minimum parole eligibility term imposed in its place; (2) the abstract of judgment should be amended to reflect joint and several liability; and (3) the court should have either stricken or not imposed the enhancements under section 12022.53, subdivisions (b) and (c), rather than staying them. Court affirm the judgment as modified.

Marilyn S. and B.D., a minor, appeal judgments terminating parental rights to B.D. and his four siblings under Welfare and Institutions Code section 366.26. Marilyn also appeals orders denying her petitions for modification under section 388, which B.D. joins. The judgments and orders are affirmed.

A jury convicted Michael Dean Peterson of assault with a deadly weapon and by means of force likely to cause great bodily injury. (Pen. Code,[1] 245, subd. (a)(1).) The jury also found true allegations that Peterson had personally inflicted great bodily injury upon the victim ( 12022.7, subd. (a)) as well as having personally used a deadly and dangerous weapon, to wit: a knife, within the meaning of sections 1192.7, subdivision (c)(23) and 12022, subdivision (b)(1). The jury found Peterson not guilty of the charge of attempted murder and found the attendant enhancement allegations not true. The trial court sentenced Peterson to prison for a total of five years. Peterson appeals, contending the trial court violated his federal rights to due process and to present a defense by failing to instruct pursuant to CALCRIM No. 3475 "where the victim had trespassed." Court affirm.

Defendant and appellant Mark Joshua Candelaria contends that the trial court erred when it found him to be in violation of his probation and when it allegedly found that it had no discretion to reinstate his probation. Court disagree and affirm.

Defendant Kenneth Homer Bray was charged with one count of lewd act on a child D.B. and one count of lewd act on a child S.B. (Pen. Code,[1] 288, subd. (a)), one count of child abuse on B.B. ( 273a, subd. (a)), two counts of indecent exposure ( 314.1), and two counts of failing to register as a sex offender. ( 290, subd. (g)(2).) Also charged were defendants two prior strike convictions ( 667 subds. (b)-(i), 1170.12, subds. (a)-(d)), and two prison priors. ( 667.5.)
After a jury trial, defendant was found not guilty of the two indecent exposure counts and guilty on all other counts. After a court trial on the priors, the trial court found the prior conviction allegations true. Defendant was sentenced to 81 years to life in state prison for the lewd acts and child abuse offenses, and a consecutive determinate term of three years eight months on the failure to register counts.
On appeal, defendant argues that his trial attorney rendered ineffective assistance because he failed to make a motion to sever the sexual and physical abuse charges from the failure to register charges. He also argues that the trial court violated Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) when it imposed an upper term and a consecutive without a unanimous jury finding the aggravating factors beyond a reasonable doubt. Finding no error, Court reject defendants claims and affirm the judgment.