CA Unpub Decisions

On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of Cunningham v. California (2007) 549 U.S.127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).
Pursuant to this mandate, we recalled the remittitur. Court re examined our initial opinion in this case (People v. Spears (Feb. 10, 2006, A107984) [nonpub. opn.]), which remains on file with this court, and which Court hereby incorporate by reference into this memorandum opinion.

A jury convicted appellant Francisco Ortiz of second degree murder and arson of an inhabited structure. (See Pen. Code,[1] 187, 189, 451, subd. (b).) Sentenced to 23 years to life in prison, Ortiz appeals. He contends that (1) the trial court erred by admitting his statements made to jailhouse informant Richard French because they were obtained in violation of his right to counsel; (2) discovery violations and evidence concealed by the prosecutor about Frenchs statements to police in other cases denied him a fair trial; and (3) the trial court erred by allowing a police officer to testify that he believed that Ortiz was lying when he denied involvement in the underlying crimes. Court affirm the judgment of conviction.

Cory W. Mosby appeals his convictions following a jury trial for carjacking, kidnapping, assault, and robbery, with enhancements for personal use of a firearm and an assault weapon. He argues that a pretrial photo lineup was unduly suggestive, the trial court made erroneous evidentiary rulings, there was insufficient evidence that he used an assault weapon, the imposition of separate punishments for carjacking and robbery violated Penal Code section 654, and the imposition of upper term sentences violated his federal constitutional rights to jury trial and due process. Court affirm.

A jury convicted defendant Tommie Sylvester Mason, Jr., of possession of cocaine base for sale. He contends that the trial court erred in admitting evidence of a prior conviction for selling cocaine base to an undercover officer on the issues of his knowledge of the narcotic nature of the drug and intent to sell it. In the alternative, he argues that his trial counsel provided ineffective assistance by failing to enter into a stipulation removing those issues from the jurys consideration. Court find no evidentiary error or ineffective assistance, and affirm the judgment.

Defendant was convicted following a jury trial of second degree robbery (Pen. Code, 211),[1] with an associated enhancement that he personally used a knife in the commission of the offense (12022, subd. (b)(1)). Defendant admitted allegations that he suffered a prior serious felony conviction ( 667, subd. (a)(1)) and served a prior prison term ( 667.5, subd. (b)). The trial court found that the alleged prior felony conviction was a strike ( 1170.12, subd. (c)(1), 667, subd. (e)(1)). Defendant was subsequently sentenced to an aggregate term of 16 years in state prison. In this appeal he claims that the evidence does not support the finding on the knife enhancement, and the court violated his due process and jury trial rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856](Cunningham), by imposing an upper term on count 1. Court conclude that the knife use enhancement must be reversed for lack of supporting evidence, but no prejudicial sentencing error occurred in the imposition of an upper term on count 1.

This case is before us on a remand from the California Supreme Court. (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 32.) Pursuant to the mandate of the Supreme Court, the cause is remanded to the trial court to decide the issue of waiver. (Id. at p. 31.) In terms of costs on appeal, given the language in Freeman v. State Farm Mutual Automobile Ins. Co. (1975) 14 Cal.3d 473, 482 487 and Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836 837, the position taken by defendant, as well as the trial court, was eminently reasonable. The interests of justice are best served by each side bearing its own costs on appeal.

Jerry Lee Espinoza appealed from the judgment entered following a jury trial in which he was convicted of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)) and resisting, obstructing or delaying a peace officer, a misdemeanor (Pen. Code, 148, subd. (a)(1)). Following a court trial he was found to have previously suffered a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b) (i), 1170.12, subds. (a) (d)) and served two separate prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for a total of seven years. He contended he was improperly sentenced to the upper term in violation of his federal constitutional right to a jury trial and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court issued an opinion on April 25, 2006 affirming the judgment.

Defendant National Union Fire Insurance Company (National Union) appeals from the judgment entered for plaintiff Sears, Roebuck & Co. in Searss action to recover unpaid benefits of $20 million on an all risk theft insurance policy issued by National Union. Court affirm.

Plaintiffs and appellants Tamara Grigoryan and Rima Manasserian appeal from the judgment entered in favor of defendant and respondent Sarkis Sarkissian in their action alleging breach of the warranties of habitability and quiet enjoyment, negligent maintenance, violation of the Fair Housing Act (42 U.S.C. 3601), sexual harassment, intentional infliction of emotional distress, and violation of Business and Professions Code section 17200. Plaintiffs sole contention on appeal is that the trial court committed prejudicial error by overruling their in limine motion seeking to bar introduction of evidence of prior litigation instituted by Grigoryan. For the reasons set forth below, Court affirm.

A modification decision.

Defendant and appellant Norris Dajon Miller appeals from the judgment entered following a jury trial that resulted in his conviction of possession and sale of cocaine.[1] He contends: (1) he was denied due process and a fair trial as a result of the trial courts refusal to instruct on the uncharged offense of sale of a substance in lieu of a controlled substance; and (2) imposition of the upper term violated his Sixth Amendment right to a jury trial. Defendant also requests that we review the record of the trial courts examination of the arresting officers personnel files made pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Because of sentencing error, Court reverse in part and remand.

A jury found appellant guilty of first degree burglary. (Pen. Code, 459.) Appellant waived a jury on further allegations that he had twice been previously convicted of first degree burglary, i.e., he had two prior serious felony convictions, and that he had five prior convictions for which he had served prison terms. The court found the prior conviction allegations to be true.
Appellant timely appealed. On appeal, appellant contends that the court committed reversible error by (1) denying his repeated motions for disclosure of the identity of a confidential informant, (2) instructing the jury under CALCRIM Nos. 220 and 224 (Jan. 2006 ed.), and (3) denying a motion to strike one of the prior strike convictions under Romero. Finding no error, Court affirm.

Robert Luna appeals his conviction for first degree murder. He claims his confession to his parole officer was introduced at trial in violation of his Sixth Amendment rights. Court affirm.

After the sale of a residence, the buyer claimed the sellers had failed to disclose defects in the property. The sellers filed an action for declaratory relief, seeking a judicial determination of the parties rights and obligations under the contract. The buyer responded with a cross-complaint for damages, which factually involved the identical issues raised in the sellers declaratory relief complaint. The trial court dismissed the sellers declaratory relief action for failure to state a cause of action, ruling that declaratory relief was not an appropriate remedy and the disputed issues could all be resolved on the buyers cross complaint.