CA Unpub Decisions

Raymond Joe Hodge appeals from the judgment entered following his convictions by jury on count 1 first degree murder (Pen. Code, 187) with a discharge of a firearm from a motor vehicle special circumstance (Pen. Code, 190.2, subd. (a)(21) and a criminal street gang special circumstance (Pen. Code, 190.2, subd. (a)(22)), with firearm use (Pen. Code, 12022.53, subd. (b)), personal discharge of a firearm ( 12022.53, subd. (c)), and personal discharge of a firearm causing death (Pen. Code, 12022.53, subd. (d)), three counts of assault with a firearm (Pen. Code, 245, subd. (a)(2); counts 2 through 4) with firearm use (Pen. Code, 12022.5, subd. (a)(1)), and count 5 attempted willful, deliberate, and premeditated murder (Pen. Code, 187, 664) with firearm use (Pen. Code, 12022.53, subd. (b)), personal discharge of a firearm (Pen. Code, 12022.53, subd. (c)), and personal discharge of a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)), each offense having been committed for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)). The court sentenced appellant to prison for life without the possibility of parole, with a consecutive term of life with the possibility of parole, two consecutive terms of 25 years to life, plus 19 years 4 months. Appellant contends the trial court committed trial and sentencing errors. Court affirm the judgment with directions.

Jose Anthony Borja appeals from the judgment entered after his conviction by a jury on one count of attempted murder, five counts of assault with a firearm and one count each of shooting at an occupied motor vehicle and an inhabited dwelling. As to six of the counts, the jury also found true the special allegations Borja had personally used a firearm and, as to all of the counts, had committed the offenses for the benefit of a criminal street gang. Borja contends the testimony of the Peoples gang expert was insufficient to support the gang enhancement under Penal Code section 186.22 and violated his constitutional right to have a jury decide the ultimate issue of fact. He further contends four of the assault convictions should be reversed on the grounds they were lesser included offenses of count 7 (shooting at an occupied vehicle) and the evidence failed to establish the intent required to support those charges. Finally, he contends, and the People agree, the trial court incorrectly calculated the gang enhancement portion of his sentence. In light of this and an additional sentencing error, Court reverse and remand for resentencing. In all other respects, Court affirm.

Jesus Aguirre Zepeda, Jr., appeals a judgment after his conviction for rape (Pen. Code, 261, subd. (a)(2)),[1] rape committed during the commission of burglary ( 261, subd. (a)(2), 667.61, subd. (c)), sexual penetration by a foreign object during the commission of a burglary ( 289, subd. (a)(1), 667.61, subd. (c)), and forcible oral copulation during the commission of a burglary ( 288a, subd. (c)(2), 667.61, subd. (c)). The trial court discharged a juror during trial and admitted testimony from a sexual assault response team (SART) nurse. Court affirm.

A modification decision.

When multiple parties are represented by counsel and successfully oppose a petition by a trustee of a claims trust for compensation, may the trial court apply the common fund doctrine to reallocate some counsels fees and costs across all non settling beneficiaries, including the litigants who were separately represented by other counsel, Court conclude that this is prohibited by California law, and therefore vacate the trial courts order.

Civil Code section 1714.10 prohibits the unauthorized filing of a cause of action against an attorney for conspiring with a client, based on conduct arising from any attempt to contest or compromise a claim or dispute. If a plaintiff desires to file such a claim, the statute creates a procedure by which the plaintiff must first seek judicial authorization to pursue it. ( 1714.10, subd. (a).)[1], In addition, the statute sets forth two exceptions to the general provision prohibiting conspiracy claims against counsel absent prior judicial approval. ( 1714.10, subd. (c)(1) & (2).). Court therefore dismiss the purported appeal.

A five count information charged defendant Terry Allen Calzaretta with assault with a deadly weapon other than a firearm (Pen. Code, 245, subd. (a)(1); a felony), and possession of a prohibited weapon ( 12020, subd. (b)(1); a felony); willfully resisting, delaying, or obstructing a peace officer ( 148, subd. (a)(1); a misdemeanor); and two counts of vandalism ( 594, subd. (b)(2)(A); both misdemeanors). After the jury convicted defendant on all counts, the court sentenced him to state prison for three years and eight months, consisting of three years on the first count, plus eight months on the second to run consecutively; defendant was also sentenced to 180 days in county jail on each of three misdemeanors, with credit for time served. Additionally, the court directed defendant to provide victim restitution pursuant to section 1202.4 and to submit blood and saliva specimens pursuant to section 296. He appeals, arguing the court erred in (1) excluding potentially impeaching evidence of a victims probation condition prohibiting the possession of weapons; (2) ordering restitution in favor of an individual who was not a victim of any crime for which he was convicted; and (3) ordering the involuntary collection of DNA samples. Only his second contention has merit and Court reverse the restitution order accordingly.

Kentri Jakarta Duggins appeals from the order revoking and reinstating probation previously granted upon his negotiated no contest plea to one count of possession of marijuana for sale (Health & Saf. Code, 11359).
On February 5, 2004 pursuant to a negotiated disposition Duggins pleaded no contest to one count of possession of marijuana for sale. The trial court suspended imposition of sentence and placed him on three years of formal probation. Conditions of probation included serving 10 days in county jail with credit for time served, payment of various fines and fees, registering pursuant to section 11590, seeking and maintaining employment and/or job training, attending counseling or therapy as directed by his probation officer, abstaining from illicit drug use, submitting to drug testing and searches and not possessing firearms or other dangerous weapons. Court have examined the entire record and are satisfied Dugginss attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
The order is affirmed.

David Campos appeals from judgment entered after conviction following his negotiated plea of no contest to second degree robbery and assault with a firearm. Appellant also admitted that the assault was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. The court sentenced him to the negotiated term of 14 years.
Court have examined the entire record and have not found any arguable issues. (Peoplev. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.

jury convicted defendant Donald Lee Bogart of possessing methamphetamine for sale (count 1; Health & Saf. Code, 11378), possessing up to 28.5 grams of marijuana (count 2; Health & Saf. Code, 11357, subd. (b)), and destroying evidence (count 3; Pen. Code, 135), but rejected the allegation that defendant was personally armed with a firearm as to count 1. The trial court sentenced defendant to probation. Court affirm.

Plaintiff Cody Dickinson filed a motion with the trial court to enforce an award of postjudgment interest in a final judgment. The court concluded plaintiff was not entitled to interest because an oral agreement placed on the record at trial did not include an award of interest. Court vacate the trial courts decision because the court lacked jurisdiction to entertain plaintiffs motion.

Plaintiff Coleen Denise Colombo and five other female employees (collectively, plaintiffs) sued their employer, BNC Mortgage, Inc. (BNC), and three male employees of BNC for sexual harassment and retaliation. BNC petitioned to compel arbitration based on a signed arbitration agreement (Agreement) in which the participants agreed to submit any claim or controversy to arbitration. The trial court denied BNCs petition, finding the agreement lacked mutuality and constituted a contract of adhesion. BNC appeals, disputing both findings. Court affirm the judgment.

Defendant Tommy Ryan Creller pleaded no contest to numerous charges arising from two violent confrontations with his girlfriend in May 1999 (case No. 62-8604) and July 1999 (case No. 62-9657). He also admitted the additional enhancements that he had committed these offenses while released from custody and had personally inflicted great bodily injury during the July incident. Following his pleas and admissions, the court found unusual circumstances and placed defendant on probation. Over the course of the next two years, defendant admitted four probation violations. Upon his admission of the fourth violation of probation, probation was revoked and defendant was sentenced to an aggregate term of 10 years four months in prison. He appeals the imposition of the upper term on the corporal injury to a cohabitant charge and on the great bodily injury enhancement in case No. 62 9657. Because there were errors in the sentencing procedure, Court remand for resentencing.

Sanders Inc. Architecture/Engineering (Sanders) filed a complaint alleging one count of breach of contract against the Trustees of the California State University (CSU). In its complaint, Sanders alleged that the parties entered into a contract (Agreement) for Sanders to provide services related to the design and construction of a telecommunications infrastructure upgrade on the campus of San Diego State University (Agreement). Sanders alleged that CSU breached the Agreement in various ways, including failing to provide Sanders with documents that accurately reflected the condition and configuration of the existing voice, data and video systems on the campus and failing to pay Sanders for the work Sanders performed pursuant to the Agreement.
On appeal from the judgment, Sanders claims that the trial court erred in granting CSU's motion for summary judgment. Court conclude that CSU has established as a matter of law that it did not breach the Agreement. Accordingly, the trial court did not err in granting summary judgment in favor of CSU.