CA Unpub Decisions

Richard Cruz Falcon appeals the judgment entered after conviction by jury of possession of methamphetamine, possession of a smoking device, a misdemeanor, and being under the influence of a controlled substance, also a misdemeanor. (Health & Saf. Code, 11377, subd. (a), 11364, subd. (a), 11550, subd. (a).) Falcon admitted a prior conviction within the meaning of the Three Strikes law (Pen. Code, 667, subs. (b)-(i), 1170.12) and admitted a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced Falcon to the upper term of three years for possession of methamphetamine, doubled to six years on account of the prior strike conviction, and struck the one year enhancement for the prior prison term. In our original opinion, filed October 26, 2006, we affirmed Falcons conviction and rejected his claim that imposition of the upper term based on factors not found true by a jury violated Falcons right to jury trial articulated in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. On July 11, 2007 the United States Supreme Court, after granting Falcons petition for writ of certiorari, vacated the judgment and remanded the matter to us for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856]. Court granted the parties an opportunity to submit supplemental briefing on the effect, if any, of Cunningham on Falcons appeal. Court again conclude imposition of the upper term did not violate Falcons Sixth Amendment right to a jury trial and affirm the judgment.

Alleging she had been diagnosed with mesothelioma as a result of her exposure to asbestos, a California resident (since 1956) who had lived in New Jersey until 1951 filed a complaint for damages, asserting a premises liability cause of action against two defendants who owned properties in New Jersey where her father and brother worked with asbestos as employees of an independent contractor hired by the defendants. Among other things, the plaintiff had laundered her fathers and brothers asbestos-covered work clothes in the familys New Jersey home. The trial court granted summary judgment for one defendant (Ford Motor Company) on the ground that the New Jersey statute of repose barred the action and for the other defendant (Merck & Co., Inc.) on the ground that the defendant owed no duty to this plaintiff who had never been to the work site. Because summary judgment was not properly granted as to either defendant, Court reverse and remand with directions.

In litigation against his former law partner, Sheldon Rubin appeals from the judgment and several postjudgment orders. His principal contentions are the trial court erred in finding that he was not entitled to indemnity and in awarding attorneys fees to his former partner. Court find no error and affirm the judgment and the postjudgment orders.

Carlos Vela appeals from the judgment imposed after a jury convicted him of first degree murder (Pen. Code, 187; undesignated section references are to that code). The jury also found that appellant personally used and discharged a firearm, causing death ( 12022.53, subds. (b)-(d)), and that he committed the offense for the benefit of a criminal street gang, with intent to further criminal conduct by gang members ( 186.22, subd. (b)(1)). Appellant was sentenced to a term of 50 years to life, with a minimum of 15 years before eligibility for parole, under section 186.22, subdivision (b)(5). The jury acquitted him of a further charge of attempted murder ( 664/187). Appellant contends that it was prejudicial error to instruct the jury that the defining primary activities of a street gang could include commission of certain offenses not specified in section 186.22, subdivisions (e) and (f). Although the instructions did refer to some partly unqualified offenses, Court conclude that the error was harmless, and Court affirm the judgment.

This appeal is from part of the order of the Los Angeles Superior Court pertaining to a trust instrument commonly known to the litigants as the Dorothea J. Cassady Trust established May 19, 1989 (hereafter referred to as the trust). The deceased trustor, Dorothea J. Cassady will hereafter be referred to as Dorothea.[1] The matter was tried by the court, the Honorable Joseph R. Kalin presiding, on December 13, 14, 15 and 19, 2005, in a trial which Judge Kalin characterized as involving a dysfunctional family.
For the reasons hereafter stated, Court affirm the order of the trial court.

Appellant contends that the evidence is insufficient to prove a violation of section 422. He also contends that the trial court erred in (1) failing to instruct the jury sua sponte on the lesser included offense of attempted criminal threat ( 664, 422); (2) admitting evidence of his bad character; (3) failing to give a limiting instruction; and (4) admitting evidence of the victim's good character. In addition, appellant argues that the prosecutor committed misconduct during closing argument, that the trial court committed judicial misconduct, and that his admission of the prior prison term is invalid. Court affirm.

The case involves appeals from different orders by Andy O., the mother of minors Santiago, Jesus and Jennifer. First, appellant appeals from the order denying her Welfare and Institutions Code section[1]388 petition as to all three children and contends the juvenile court abused its discretion when it denied her petition after a contested hearing. Three months later, after Santiago was placed with his father, appellant filed a second section 388 petition as to Jesus and Jennifer. Appellant also appeals from the order denying her second petition and terminating her parental rights as to Jesus and Jennifer. Appellant contends the court erred when it denied her second petition without a hearing and when it found the exception to termination in section 366.26, subdivision (c)(1)(A) did not apply. Court affirm.

Dean J. Adams was charged with a violation of Penal Code section 4501, assault likely to cause great bodily harm, committed by a prisoner confined to a state prison, and with having suffered four prior convictions for serious or violent felonies pursuant to Penal Code section 1170.12, subdivision (a) and 667, subdivisions (b) through (i). Appellant pled no contest to the new charge and admitted the prior convictions. Three of the four convictions were stricken by the trial court, and appellant was sentenced to a total of four years in state prison.
Court have examined the entire record and are satisfied that appellant's attorney has fully complied with her responsibilities and no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.

On January 27, 2005, Deputy Justin Diez of the Los Angeles County Sheriffs Department detained Donnie Kay Sneed for a municipal code violation, urinating in a vacant lot (L.A.M.C. 41.47.2) and, after checking the Sheriffs Departments computer, learned that Sneed had failed to register as a sex offender (Pen. Code, 290, subd. (a)(1)(D)). During a search incident to arrest, Deputy Diez found rock cocaine in Sneeds left sock. Sneed was charged by information on May 12, 2005 with possession of cocaine base in violation of Health and Safety Code section 11350, subdivision (a). The information specially alleged Sneed had suffered three prior serious or violent felony convictions within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two separate prison terms for a felony (Pen. Code, 667.5, subd. (b)).
Court have examined the entire record and are satisfied that Sneeds attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 112 113; Peoplev. Wende (1979) 25 Cal.3d 436, 441. The judgment is affirmed.

Maria P. appeals from the juvenile courts order sustaining the Welfare and Institutions Code section 602 petition alleging she had committed assault with a deadly weapon (count 1) and had made a criminal threat (count 2). (Pen. Code, 245, subd. (a)(1), 422.) On appeal, Maria P. contends the juvenile court erred by imposing separate punishment for the two offenses in violation of Penal Code section 654. Although Court agree the two offenses arose from an indivisible course of conduct, Court find no need to modify the disposition order (In re Ali (2006) 139 Cal.App.4th 569, 574) and affirm.

On December 5, 2001, Beltran was charged by information with second degree burglary (Pen. Code, 459 count 1), unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a) count 2), possession of cocaine for sale (Health & Saf. Code, 11351) count 3) and possession of cocaine base for sale (Health & Saf. Code, 11351.5 count 4). As to each count the information further alleged that Beltran had served seven separate prison terms for felonies (Pen. Code, 667.5, subd. (b)). The judgment is affirmed.

Maria Diaz sued West Coast Laboratories (WCL) and Charles Shad for disability discrimination and wrongful termination. WCL filed a motion to compel arbitration based on an arbitration clause included in WCLs employee handbook. The trial court denied the motion finding the contract both procedurally and substantively unconscionable. On appeal, WCL contends that the trial court erred in denying the motion because substantial evidence did not support the findings of procedural and substantive unconscionability. Court affirm.

Aracley Lopez and Carl F. Hamilton appeal their convictions by plea for identity theft (Pen. Code, 530.5, subd. (a))[1]and receiving stolen property ( 496, subd. (a)), entered after the trial court denied their motions to suppress evidence ( 1538.5). Lopez also pled guilty to possession of a forged driver's license ( 470b) and was sentenced to three years state prison. Hamilton received a two year state prison sentence. Court affirm.

The minor Lidia M. appeals from the juvenile courts order of wardship after finding she attempting to dissuade a victim or witness from reporting a crime or giving testimony at trial or other authorized legal proceeding. (Welf. & Inst. Code, 602; Pen. Code, 136.1, subd. (c)(1).) The minor contends the evidence is insufficient to support the finding. Court affirm the order as modified.