CA Unpub Decisions

Luis M. Plantillas was convicted by a jury of receiving stolen property (Pen. Code, 496, subd. (a))[1]and admitted, in a bifurcated proceeding, the truth of the special allegation he had served a prior prison sentence for a felony. ( 667.5, subd. (b).) On appeal Plantillas contends the trial court erred in admitting incriminating statements he made to a deputy sheriff prior to being advised of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).) He also challenges the jury instructions regarding the adverse inferences that may be drawn from a testifying defendants failure to explain or deny evidence against him and argues the trial courts imposition of an upper term sentence and a prior prison term enhancement violated his Sixth Amendment right to a jury trial and Californias proscription against use of the same fact to impose both an upper term and a sentence enhancement. Court affirm.

In this second appeal of his premises liability case, a tenant claims he was injured by carbon monoxide poisoning due to a faulty heater and thermostat in his apartment in 2000. His first suit resulted in a grant of summary judgment for the landlord and manager, which this court affirmed in 2004. The tenant sought review unsuccessfully in the California and United States Supreme Courts. After remittitur, he refiled the case under a new case number, adding two defendants and one new theory of recovery. Finding the new action untimely and barred by the doctrine of res judicata, the trial court dismissed the suit after sustaining defendants demurrers without leave to amend. Court affirm.

This litigation concerns a construction project. Franklin Reinforcing Steel Co., Inc. (Franklin), the party who prevailed on its cross-complaint after a jury trial, challenges the trial courts order awarding it attorney fees, claiming that the trial court abused its discretion in ordering a reduced amount of attorney fees. In the cross-appeal, Thompson Pacific Construction, Inc. (Thompson), objects to (1) the trial courts orders imposing monetary sanctions against it and dismissing its complaint, and (2) the judgment entered against it. Additionally, Thompsons attorneys, Robert L. Leslie and McInerney & Dillon, appeal the trial courts order imposing monetary sanctions against them. Because the judgment in favor of Franklin is reversed, it follows that Franklin is not entitled to attorney fees. Thus, Franklins appeal challenging the reduced award of attorney fees is dismissed as moot.

Appellant, Juan V. Barrientos, was held to answer at a preliminary hearing on November 21, 2002, to a one-count information alleging that on October 14, 2001, appellant violated Penal Code[1]section 187, subdivision (a) by murdering Freddie Vellanoweth with malice aforethought.[2] It was also alleged that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury (Pen. Code 12022.53, subd. (d)); that appellant personally and intentionally discharged a firearm (Pen. Code 12022.53, subd. (c)); and that appellant personally used a firearm (Pen. Code 12022.53, subd. (b)). A defense Marsden motion was made and denied on January 23, 2003. (People v. Marsden (1970) 2 Cal.3d 118.) A subsequent Marsden motion was made and denied on March 13, 2003. The trial began and a jury was selected on March 17, 2003. On March 26, 2003, the jury announced they were unable to reach a unanimous verdict and the trial judge declared a mistrial. FRA timely notice of appeal was filed on March 17, 2006.
The great bodily injury enhancement imposed per section 12022.7, subdivision (a) is stricken. The case remanded to the trial court for resentencing and further proceedings consistent with this opinion.

James Michael Yagle was convicted of possessing methamphetamine (Health & Saf. Code, 11377, subd. (a)). On appeal, he contends that the imposition of the upper term sentence violated his Sixth Amendment right to a jury trial as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). He also argues that his custody credits were improperly calculated. The Attorney General concedes that the custody credits were improperly calculated, and argues that the trial court failed to impose various mandatory financial obligations at sentencing. Under the authority of People v. Black (2007) 41 Cal.4th 799 (Black II), we reject Yagles constitutional argument. With respect to the remaining sentencing claims, Court remand for correction of Yagles custody credits and imposition of appropriate financial obligations.

Eve Sternlight Cohen, co-special administrator of the Estate of Sara Sternlight and co-trustee of the Sternlight Family Trust, sued Bank Leumi le-Israel (Switzerland) (Bank Leumi) for damages allegedly caused by Bank Leumis negligent administration of bank accounts holding assets of Sara Sternlight and the trust. This court reversed the trial courts order dismissing the action for lack of personal jurisdiction over Bank Leumi and remanded for the trial court to consider Bank Leumis alternative argument that the forum selection clauses in the bank account agreements at issue, which designated Zurich, Switzerland as the jurisdiction for all legal proceedings against the bank, should be enforced. The trial court granted Bank Leumis motion to quash and dismissed the action finding that the forum selection clauses were valid and enforceable. In this appeal, Cohen contends that the trial court erred in granting the motion to dismiss based on the forum selection clauses. Specifically, she claims the trial court: (1) applied the wrong law in granting the motion; and (2) failed to consider all of the evidence and legal theories she presented, in particular the evidence supporting her theory Sara Sternlight entered the account agreements under undue influence. Cohen asserts that, if the trial court had considered undue influence, it would have been compelled to find the forum selection clauses invalid as a matter of law. As we shall explain, Cohen failed to overcome the presumption that the forum selection clauses were valid. Contrary to Cohens assertions, the record before this court indicates the trial court considered the evidence before it, including that which she claims supported her undue influence theory. In our view the court acted within its authority when it found that Sara Sternlight freely and voluntarily entered into the account opening agreements. Accordingly, Court affirm the judgment.

Appellant Bufford Joice was convicted, following a jury trial, of one count of felony evading a peace officer in violation of Vehicle Code section 2800.2, subdivision (a), two counts of misdemeanor resisting arrest in violation of Penal Code section 69 and one count of misdemeanor hit and run driving in violation of Vehicle Code section 20002, subdivision (a). The court suspended imposition of sentence and placed appellant on probation for a period of three years, with the first year to be served in county jail. The court imposed and stayed a parole revocation fine of $200. Appellant appeals from the judgment of conviction, contending the trial court erred in finding a witness was unavailable and permitting a videotape of that witness's testimony to be shown to the jury. He further contends the court erred in imposing a parole revocation fine. Court order the fine stricken and affirm the judgment of conviction in all other respects.

Joseph Allen was convicted of two counts of assault with a firearm and one count each of second degree robbery, possession of cocaine for sale, possession of a controlled substance while in possession of a firearm and felon in possession of a firearm, with firearm and great bodily injury allegations found true. The trial court originally sentenced Allen to a term of 30 years in state prison. In a prior appeal, we found some of Allens claims of sentencing error to have merit and, as a result, stayed punishment on two counts, partially reversed Allens sentence on another count and remanded the matter for resentencing. Thereafter, the trial court imposed a sentence of 27 years, 4 months in state prison.
In this appeal, Allen challenges his sentence upon remand, arguing that the trial court erroneously imposed a concurrent sentence as to one count for which we previously ordered Allens sentence stayed. In this regard, Court agree. However, we reject Allens further claims of error in the trial courts imposition of the upper term on the robbery count as well as its imposition of a consecutive sentence on one of the assault with a firearm counts.

Julius Loftin was convicted by a jury on one count of assault with a deadly weapon, by force likely to produce great bodily injury, with special findings by the court in bifurcated proceedings that he had suffered one prior serious felony conviction within the meaning of the Three Strikes law and Penal Code section 667, subdivision (a)(1). On appeal, Loftin contends the trial court abused its discretion in denying his request to dismiss his prior qualifying strike conviction. Court affirm.

Cyrus Parsa appeals from an order granting summary judgment in favor of Richard H. Caplan in Parsas actions for professional negligence, fraud, and negligence per se. Parsa contends that the trial court erred in 1) finding that Caplan met his summary judgment burden with respect to causation; 2) finding that Parsa failed to present a triable issue of material fact with respect to causation; 3) failing to address Parsas claims for fraud and negligence per se; and 4) sustaining Caplans evidentiary objections. Finding no error, Court affirm.

Appellant Laroy Alexander pled guilty to forgery, was placed on probation, violated probation, and was sentenced to prison for the upper term of three years. He contends that imposition of the upper term violated his Sixth Amendment right to trial by jury, as interpreted in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), and previous decisions of the United States Supreme Court. Court find no error in appellants sentence, based on People v. Black (2007) 41 Cal.4th 799 (Black II).

E. R., mother of L. P. and L. R., timely appeals from October 27, 2006 and March 9, 2007 orders (1) denying her motion, based on allegedly changed circumstances, to enforce existing conjoint therapy and visitation orders, and terminating visitation; and (2) terminating her parental rights. (Welf. & Inst. Code, 388; 366.21, subd. (h); 366.26; all further undesignated section references are to the Welfare and Institutions Code.) Mother contends the juvenile court erred under In re Hunter S. (2006) 142 Cal.App.4th 1497 by failing to enforce earlier orders for conjoint therapy and visitation and delegating discretion whether and under what circumstances visitation occurred to the children and their therapist. Mother further argues those errors prevented her from showing she maintained beneficial regular visitation and contact with her daughters under section 366.26, subdivision (c)(1)(A), which if shown may have justified not terminating her parental rights. Court reject these contentions and affirm the orders.

On May 6 and 7, 2005 Jesse C. Rosenfeld negotiated forged checks that had been stolen from the United States mail. On July 29, 2005 Rosenfeld and his wife, Cynthia Whitney, opened a business account at a Citibank branch in Sherman Oaks, using forged and stolen checks and fraudulent identification. The couple later made several withdrawals from the account resulting in the loss of more than $9,000 to Citibank.
We appointed counsel to represent Rosenfeld on appeal. After examination of the record counsel filed an Opening Brief in which no issues were raised. The judgment is affirmed.

Jesus Ponce Romero appeals from his convictions and sentences for willful, premeditated and deliberate attempted murder, criminal threats, burglary and arson. On appeal he claims the court erred in instructing the jury and in sentencing him. Specifically, Romero claims the court erred in refusing to instruct the jury concerning the police authority to take a mentally ill person into custody and also gave a legally inadequate jury instruction CALCRIM 220 concerning the reasonable doubt standard. Romero also asserts the court erred in: (1) failing to stay his sentence on his criminal threats conviction pursuant to Penal Code section[1]654; (2) imposing consecutive terms on the attempted murder and criminal threats convictions; and (3) failing to award him pre-sentence conduct credits. He also asserts the consecutive sentences violate principles announced in Blakley v. Washington (2004) 542 U.S. 296 (Blakely). As we shall explain, only the claim concerning the pre-sentence conduct credits is meritorious. Romero has not shown that the refusal of his requested instruction resulted in prejudicial error. In addition, CALCRIM 220 adequately conveys the matters for the jury to assess when considering the reasonable doubt standard. Furthermore the court properly sentenced him for the attempted murder and criminal threats convictions. Accordingly, Court modify the judgment to award pre sentence conduct credits, and affirm in all other respects.