CA Unpub Decisions

Appellant Richard Salazar, Jr., was convicted after jury trial of first degree burglary (count I) and grand theft of a firearm (count II). (Pen. Code, 459, 487, subd. (d)(2).)[1] In a bifurcated bench trial, the court found true allegations that Salazar had a prior serious felony conviction that was also a strike, and previously had served two prison terms. ( 667, subds. (a) & (d), 667.5, subd. (b).) The court sentenced Salazar to a total prison term of 18 years, calculated as follows: the upper term of six years doubled to 12 years on count I, five years for the serious felony enhancement, and one year for the prior prison term. On count II, the court sentenced Salazar to a concurrent four year term.
Salazar argues the term imposed for count II must be stayed pursuant to section 654 and complains that imposition of the upper term on count I constitutes Blakely/Cunningham error. The Attorney General concedes the section 654 error but argues Salazars recidivism justifies imposition of the upper term. Court agree with the Attorney General. The judgment be modified to stay the term imposed on count II and, as modified, affirmed.

On May 5, 2000, appellant, Asad Zuhdi Khalil, pled no contest to possession for sale of methamphetamine (Health & Saf. Code, 11378), maintaining a place for the sale of methamphetamine (Health & Saf. Code, 11366), and possession of narcotics paraphernalia (Health & Saf. Code, 11364.) On August 7, 2000, the court placed Khalil on three years probation on condition that he serve 365 days local time. On December 5, 2006, the court denied Khalils motion to vacate the judgment. On appeal, Khalil contends the court abused its discretion when it denied his motion. Court affirm.

Patricia T. appeals from orders terminating parental rights (Welf. & Inst. Code, 366.26) to her three year old daughter and one year old son. She contends the court abused its discretion by not selecting legal guardianship as the permanent plan for the children. According to appellant, evidence that the childrens relative caregivers preferred guardianship overcame the statutory preference for adoption as the childrens permanent plan. On review, Court disagree and affirm.

Christopher Barnes appeals from his conviction on multiple counts of committing lewd and lascivious acts upon a child under the age of 14 in violation of Penal Code section 288, subdivision (a). The victims were his daughter and stepdaughter. He contends there is insufficient evidence to support the jurys verdicts and the trial court erred by excluding evidence that would have impeached the credibility of one of his victims. Court find no merit in his contentions and affirm the judgment.

The minors maternal grandmother, Mario O. appeals the juvenile courts order granting motions brought under Welfare and Institutions Code, section 388. (Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.) Court reject all of her arguments and affirm.

Amu Billy Wynn appeals a judgment that includes convictions for first degree murder (Pen. Code, 187),[1]attempted murder ( 664/187, subd. (a)), and robbery ( 212.5, subd. (c)). He claims that police conducted a custodial interrogation in violation of his rights as enunciated in Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and more particularly in violation of the prophylactic rule set out in Edwards v. Arizona (1981) 451 U.S. 477 (Edwards)that custodial interrogation must cease once a suspect has invoked his or her right to have counsel present. Defendant contends it was therefore prejudicial error for the trial court to deny his motion to suppress the incriminating admissions he made during that interrogation. As discussed below, Court find no reversible error and affirm the judgment.

Appellant Jeremy Paul individually and doing business as Quickdraw Permit Consulting (Appellant) appeals a judgment holding him liable for design and construction errors in a home improvement project. As to his liability, he argues the trial court erred by finding he breached a duty to supervise construction of the project, engaged in intentional misrepresentation, violated the Consumer Legal Remedies Act (CLRA, Civ. Code, 1750 et seq.), conspired to evade licensing laws, and violated Business and Professions Code section 17200. As to the damages award, he argues the court erred by refusing to apply collateral estoppel to a finding in a default judgment and failed to make appropriate adjustments to the compensatory damages award. Court affirm.

Appellant Jeremy Paul (Appellant) challenges the trial courts order awarding attorney fees and costs to Respondents following a judgment in Respondents favor on the merits of the action. He argues (1) fees were not properly awarded because the trial court erred in finding liability under three statutes; (2) fees were not properly apportioned between claims for which fees could be recovered and claims for which fees could not be recovered; and (3) costs that are disallowed under Code of Civil Procedure section 1033.5 were improperly awarded. Court reverse the award of costs that are not allowable under Code of Civil Procedure section 1033.5. In all other respects, Court affirm the order.

Attorneys Sean Ellis and David Kahn represented Contemporary Services Corporation, Damon Zumwalt and Peter Kranske (collectively CSC) in an attorney malpractice action. After the malpractice action settled, a dispute arose regarding these parties respective rights to the settlement monies. That dispute led to litigation, a jury trial and a November 14, 2003, judgment, pursuant to which Ellis and Kahn were awarded reasonable attorney fees in the amount of $369,000 under the doctrine of quantum meruit. This court affirmed the judgment in March 2006. (Contemporary Services Corporation, et al. v. The Law Offices of Sean Ellis, et al. (Mar. 21, 2006, A105410) [nonpub. opn.] (CSC I).)
Thereafter, Ellis and Kahn sought post-judgment interest at the statutory rate. Instead, the trial court issued an order providing that interest which had actually accrued on the settlement monies while they were held in a client trust account was to be divided pro rata between the parties. Ellis and Kahn appeal, maintaining they are entitled to interest at the statutory rate. Court agree and, therefore, reverse the post judgment order.

Defendant Jaime Aguilar appeals with a certificate of probable cause from a judgment entered on his guilty plea. His counsel has raised 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 notified of his right to file a supplemental brief, but has not done so. Court have reviewed the record on appeal, find no arguable issues, and affirm the judgment.

By way of extraordinary writ review pursuant to California Rules of Court, rule 8.452, petitioner Joy C., the mother of minors S.B. and B.B., seeks to vacate the order of respondent juvenile court terminating reunification services and setting a hearing to terminate her parental rights in accordance with Welfare and Institutions Code section 366.26. In challenging the courts order, petitioner asserts three errors: (1) that the Contra Costa County Children and Family Services Bureau (Bureau) failed to establish that return of the minors to her would create a substantial risk of detriment; (2) that the court erred in not returning the minors to her and offering six additional months of family maintenance services; and (3) that the court erred in delegating the section 366.26 advisement to county counsel. Court conclude that petitioners contentions are without merit, and deny the petition accordingly.

Appellant, an attorney discharged by his client, challenges the denial of his motion for attorney fees brought against the counsel who succeeded him. Appellant sought the award based on a purported attorney fees contract between his former client and successor counsel.

Appellant contends that the trial court abused its discretion by not awarding him the appropriate amount of fees. Successor counsel argue that the dispositive issue in this appeal has been raised in a related appeal in the same case (B182561) and incorporate their arguments and the record from that appeal in support of affirmance here. They contend that they were not parties to an attorney fees contract. Appellant does not mention the related appeal, the record in that appeal, or respond to the contention that successor counsel were not parties to an attorney fees contract. Court conclude that appellant has waived the issue raised in this appeal the amount of fees he should have been awarded because he has not addressed the contention that there was no attorney fees contract entitling him to an award in any amount. Court further conclude that successor counsel are correct that they were not parties to any such contract. Court therefore affirm.

Plaintiff Felicia MacDonald, now known as Felicia Gordon, appeals from a judgment in her lawsuit alleging her former husband, defendant Robert MacDonald, now deceased, engaged in fraudulent transfers of shares of stock in order to deprive her of the ability to collect a 1989 judgment granted to her in an action to dissolve their marriage. She alleged the transfers were made to an irrevocable trust for which his daughter, defendant Leslie Anne MacDonald Veje, was the initial beneficiary and, for several years, defendant Terrence Goggin was trustee. Court reverse that portion of the judgment denying prevailing party status and costs recovery to plaintiff and affirm the judgment in all other respects.

Meanor Gomez (defendant) appeals from a judgment entered after a jury found him guilty of four counts of forcible rape against more than one victim. (Pen. Code, 261, subd. (a)(2).) The jury found true the allegations that Gomez committed all four crimes during a burglary with intent to commit rape ( 667.61, subds. (a), (d)(4)); that in counts 3 and 4, defendant personally inflicted great bodily injury ( 12022.8); and that in counts 3 and 4, defendant personally inflicted great bodily injury on a victim 70 years old or older. ( 12022.7, subd. (c).) The trial court sentenced defendant on March 30, 2007, to a total of 72 years to life in prison. The sentence was based on two consecutive sentences of 25 years to life for counts 1 and 3 and consecutive middle terms of six years for both counts 2 and 4, plus two five year great bodily injury enhancements on counts 3 and 4. ( 12022.8.)
The abstract of judgment is ordered corrected to reflect that defendant was sentenced to 25 years to life for counts 1 and 2, rather than life with the possibility of parole for counts 1 and 2. In all other respects, the judgment is affirmed.