CA Unpub Decisions

Appellant Alan Paul Wurtzel (Wurtzel) appeals from summary judgment entered in favor of real estate brokers who jointly represented Wurtzel and the sellers of a six unit apartment building Wurtzel purchased in 2004. Court conclude that summary judgment was properly granted, and Court affirm.

Defendant Rodney Louis Gaines appeals from a judgment of conviction entered after a jury convicted him of possession of cocaine base and possession of a smoking device. Appellant claims that the trial court erroneously denied his Pitchess motion, that the trial court erred in instructing the jury on simple possession as a lesser included offense of sale or transportation of cocaine base, that there was insufficient evidence to support the conviction of possession, and that the court abused its discretion in denying his motion for a continuance to allow him to review the presentence report. He further contends the court committed Cunningham error in selecting the upper term for the possession count, and abused its discretion in selecting the upper term and in denying his request to strike his prior felony convictions. Finally, appellant contends his sentence constituted cruel and/or unusual punishment under either the California or United States Constitutions. Court find the trial court erred in denying appellants Pitchess motion and remand for a limited hearing on that issue. In all other respects the judgment is affirmed.

A jury convicted defendant Felix Perez of second degree murder ( 187, subd. (a)) with a finding that he personally used a firearm ( 12022.5) and assault with a firearm ( 245, subd. (a)(2)) with findings that he personally used a firearm ( 12022.5) and inflicted great bodily injury ( 12022.7, subd. (a)). The trial court sentenced defendant to a term of 23 years to life.
Court therefore reverse the finding of the enhancement and the three year sentence imposed therefor. In addition, Court strike two fines from the abstract of judgment because the trial court did not impose them and the statutes authorizing the two fines were enacted many years after defendant committed the crimes.

This is Jose Luis Martinezs second appeal from his criminal conviction. We previously remanded the case to the trial court for resentencing. (People v. Gonzalez & Martinez (May 15, 2005) nonpub. opn. B171456, at p. 15.) Without the benefit of the recent cases Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct 856] (Cunningham), People v. Black (2007) 41Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the trial court sentenced appellant to the upper term for a gang enhancement pursuant to Penal Code section 186.22 and to the midterm on all other counts and enhancements.
The law has changed since the trial court sentenced Martinez. Under the current law, the error in sentencing appellant to the upper term for the gang enhancement was not harmless beyond a reasonable doubt. Therefore, the case must be reversed in part and remanded for resentencing on the section 186.22 enhancement. In all other respects, the judgment is affirmed.

Plaintiffs, Siljan Inc., Glorias Pupuseria and Sylvia Martinez, appeal from a judgment confirming an arbitration award in favor of defendant, Filet Menu, Inc., in the amount of $990,226.57. Plaintiffs argue there was no enforceable agreement to arbitrate the dispute and the award should therefore have been vacated. Court agree and reverse the judgment.

The sole question on appeal is whether the trial court improperly denied defendants motion to compel arbitration based on its finding that defendants had waived their contractual right to arbitration. Court affirm.

Dagoberto Moises Jovel appeals from an order denying his motion to vacate his conviction for attempted second degree robbery (Pen. Code, 664, 211) following his guilty plea in 1993. In 2006, he filed a motion to vacate his conviction claiming that the court failed to advise him of the immigration consequences of his conviction before it accepted his guilty plea. Appellant contends that the trial court erred in denying his motion to vacate his conviction after concluding that he did not establish that he was prejudiced by the lack of proper advisement. Court affirm.

Plaintiff, Janice Carter, sued defendants, Joseph Shane and his employer, Chans Market, Inc., alleging assault, battery, and intentional infliction of emotional distress. Chans Market moved for summary judgment on the ground there is no nexus between Shanes work as a grocery clerk and his conduct of grabbing Carters crotch, with the result it could not be held vicariously liable for Shanes conduct. Carter appeals from the judgment entered after the trial court granted Chans Markets motion. Factual disputes exist here precluding summary judgment. Accordingly, Court reverse the judgment.

Appellant James Earl McCarvey challenges his conviction for attempted robbery. He argues the trial court committed judicial misconduct, and violated his due process rights in doing so. He also contends the court abused its discretion in allowing the prosecution to reopen its case. We reject both arguments.
Court find that the trial court imposed an unauthorized sentence by failing to impose three mandatory five year enhancements. Appellant agrees the court erred in this respect, but argues the court must re consider his Romero motion in light of his new sentence. Court agree. Court reverse appellants sentence and remand the case to the trial court for reconsideration of the Romero motion and for re sentencing.

In this appeal, plaintiff Ronnie Bragg (plaintiff) challenges a summary judgment granted to defendant Organic Milling Co. (defendant). As noted in footnote 1, infra, plaintiff sued defendant on several causes of action. However this appeal concerns only one of themplaintiffs claim that defendant improperly failed to pay him overtime wages.
Defendant contends plaintiff was an exempt employee, that is, exempt from state and federal overtime laws, and plaintiff contends the nature of his position at defendant company rendered him a nonexempt employee. The trial court found that plaintiffs job duties placed him in the exempt category and our review of the record convinces us the trial court was correct. Court therefore affirm the summary judgment.

Jose Manuel Gonzalez appeals from a judgment recommitting him to Atascadero State Hospital as a sexually violent predator (SVP). (Welf. & Inst. Code, 6600 et seq.) He contends that the trial court erroneously admitted hearsay evidence. Court affirm.

Shawn Allen Fletcher appeals the judgment entered following a jury trial which resulted in his conviction of the sale or transportation of cocaine base (Health & Saf. Code, 11352, subd. (a)), and the trial courts findings he had previously been convicted of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), had suffered a prior narcotics related conviction (Health & Saf. Code, 11370.2, subd. (a)), and had previously served five prison terms (Pen. Code, 667.5, subd. (b)). The trial court sentenced Fletcher to six years in prison. Court affirm the judgment.

Leon Jerome Daniels appeals from the judgment after a jury convicted him of felony assault (Pen. Code, 245, subd. (a)(1)) and street terrorism ( 186.22, subd. (a)). The jury found true a gang enhancement ( 186.22, subd. (b)(1)) and a personal infliction of great bodily injury enhancement ( 12022.7, subd. (a)).
Appellant was denied probation and sentenced to a term of six years, consisting of the midterm of three years for the felony assault and the midterm of three years for the personal infliction of great bodily injury enhancement. The court also sentenced him to 10 years on the gang enhancement, and then struck that punishment pursuant to section 186.22, subdivision (g) in the interest of justice, finding he was extremely young, that this was his first venture into the adult system, and that a 16 year sentence was too severe for the facts of the case. As to street terrorism, the court sentenced him to two years, to be served concurrently with count 1. The court awarded no credits as appellant had been serving a juvenile sentence.

In this appeal, mother, Gladys C., challenges the September 12, 2006 order, adjudicating her daughter, C., now 17, a dependent pursuant to Welfare and Institutions Code section 300, subdivisions (b), (c) and (d).[1] She also challenges the disposition order of September 26, 2006. Mother argues that substantial evidence does not support the findings that: (1) she could reasonably have known of C.s sexual abuse by mothers tenant; (2) no reasonable means existed to prevent removal from mother under section 361, subdivision (a); and (3) she was unable to properly address C.s problems. Consequently, mother argues that the disposition order, which removed C. from her custody, is not supported.
Court find substantial evidence supports the orders, and affirm.