CA Unpub Decisions

Alleging abuse of discretion, appellant Richard L. (appellant) seeks modification of the trial courts restitution order. Finding no error, Court affirm.

Pursuant to a plea agreement, defendant pleaded guilty to receiving a stolen vehicle (Pen. Code, 496d, subd. (a)) in case No. FSB053053 and also pleaded guilty to maintaining a place for the unlawful use of drugs (Health & Saf. Code, 11366) in case No. FSB053860. In return, the remaining counts in both cases were dismissed, and defendant was granted three years of formal probation on various terms and conditions, including serving 180 days in county jail served concurrently. On appeal, defendant contends (1) the probation condition requiring her to keep the probation officer informed of whether she owns any pets is unreasonable; (2) the probation condition requiring her to submit to and cooperate in field interrogations infringes upon her Fifth Amendment constitutional privilege against self incrimination and is unconstitutionally overbroad; and (3) the probation condition requiring her to carry a copy of her probation conditions upon her person at all times and to offer the conditions to law enforcement upon contact is unconstitutionally overbroad and vague. Court reject these contentions and affirm the judgment.

On October 14, 2003, defendant Gregory Hart -- fresh out of state prison -- robbed a clothing store at knifepoint. On January 30, 2006, he entered into a direct plea agreement with the trial court for a prison term of 10 years instead of the possible 19 to which he was exposed. In the course of a lengthy discussion among the parties about the best way to reach the 10-year sentence, the court decided that in the interests of avoiding problems with prison officials and this court, it would strike, rather than stay, the three prison priors. Its cleaner. [] . . . [] . . . If its stricken, its stricken. Defendant then pled guilty to armed robbery, admitted to having suffered a prior strike within the meaning of the three strikes law, and admitted having the three prison priors (Pen. Code, 211, 12022.12, subd. (b)(1), 667, 1170.12, subds. (a)-(d), 667.5.) The matter is remanded to the trial court with instructions that it order the preparation of a corrected and amended abstract of judgment reflecting the three, stricken, prison-prior enhancements. In all other respects, the judgment is affirmed.

Cross defendant and appellant Juan C. Castro (Castro) challenges the default judgment rendered against him in favor of cross complainant and respondent Paul Berger (Berger) in a matter involving an agreement to subordinate one judgment lien to another. As discussed below, Court agree with both parties that the default judgment should be reversed and the underlying default set aside. This is because neither the cross complaint nor the first amended cross complaint alleged an amount of damages, and Castro was not served with a statement of damages as required by Code of Civil Procedure section 580. Castro argues that this court should also order the action dismissed with prejudice on the merits because Berger did not properly plead the fraud cause of action and cannot establish that a valid contract existed between them. Because these issues were not fully litigated in the trial court, Court decline to address them on appeal.

In this discrimination case, Tyronne Borelli, Rebecca Bruno, George Reta, and Sandra Katz (sometimes referred to collectively as the Plaintiffs) appeal from a judgment in favor of their employer, the Santa Ana Unified School District[1] after the Districts motion for summary judgment was granted. The Plaintiffs contended they were harassed and discriminated against by the District and several individual defendants within the administration after they demanded the District investigate a threatening voice mail message left for an administrator at the Districts Santa Ana Valley High School (Valley). Their complaint contained causes of action for discrimination in violation of the California Fair Employment and Housing Act (the FEHA) (Gov. Code, 12900 et seq.).[2] Each of the Plaintiffs also alleged a separate cause of action titled hostile work environment alleging the actions of the individual defendants constituted harassment so severe and pervasive that it altered the conditions of [their] employment and created an abusive working environment. Summary judgment was granted as to all causes of action because the Plaintiffs failed to exhaust their administrative remedies as required under FEHA by timely filing complaints with the Department of Fair Employment and Housing (the DFEH). On appeal, the Plaintiffs contend they should have been permitted to amend their complaint to recast their hostile workplace harassment cause of action as one for a common law wrongful discharge or demotion. Reta additionally contends there was a triable issue of fact as to whether he timely filed a complaint with the DFEH. Court find no merit to their claims and affirm the judgment.

Defendant Richard Leroy Hallett was placed on probation after he pleaded guilty to possession of methamphetamine and unauthorized possession of a hypodermic needle or syringe, and admitted he suffered a prior conviction for which he served a prison term. The terms of defendants probation included that he [v]iolate no law. While on probation, defendant was arrested for burglary. The trial court concluded that defendant violated the terms of his probation, and imposed sentence on the methamphetamine related offenses.
Defendant contends the trial court erred by imposing the upper term sentence for the possession of methamphetamine offense based on a fact not admitted or found true by a jury beyond a reasonable doubt. We do not reach this issue because the court erred by failing to state the basis for its decision to impose the upper term sentence as required by rule 4.420(e) of the California Rules of Court. In addition, the trial court could not use the probation for the possession of methamphetamine offense as a reason to impose the upper term after revocation of that same probation. Court therefore remand to the trial court for resentencing, and otherwise affirm the judgment.

Anthony Lee Douglas was charged with second degree robbery (count 1) and petty theft with a prior theft conviction (count 2). The information also alleged Douglas had two prior serious felony convictions and served five prior prison terms. A jury convicted Douglas of counts 1 and 2. The trial court found true the prior serious felony conviction and prior prison term enhancment allegations.
Douglas raises a single issue on appeal: He argues the verdict violates the rule against multiple convictions based on necessarily included offenses. The Attorney General concedes the issue and Court agree with this concession. Under a judicially created rule of law, the conviction of petty theft with a prior theft conviction must be reversed. In all other respects, the judgment is affirmed.

Paul Rolf Jensen filed a lawsuit against his church, St. Andrews Presbyterian Church of Newport Beach, a religious corporation, and several members of its governing body (collectively referred to as the Church, unless individual designations are required). The court sustained the Churchs demurrer to Jensens first amended complaint without leave to amend. It concluded Jensens original complaint revealed an underlying ecclesiastical dispute with the Church, and Jensens attempt to reword allegations and delete sentences to shift the focus to corporate procedural matters, failed to make the claims viable. Court agree, and affirm the judgment of dismissal.

Court appointed counsel to represent Martin on appeal. Counsel filed a brief setting forth the facts of the case. Counsel did not argue against his client, but advised the court no issues were found to argue on his behalf. Martin was given 30 days to file written argument on his own behalf. That period has passed, and Court have received no communication from him. Court have examined the record and found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Court affirm the judgment.

Irving Sheppard, a California state inmate, was convicted by a jury of first degree murder in 1981 and again in 1991. Both times he was sentenced to a term of 29 years to life in state prison. Appellant, the acting warden of the correctional institution where Sheppard is incarcerated, appeals from an order of the Santa Clara County Superior Court granting habeas relief to Sheppard.
On appeal, the Board contends that its decision complies with due process requirements because it conducted an individualized analysis and its decision is supported by some evidence. The superior court's order restricting the Board's discretion when determining Sheppard's suitability for parole, and granting the petition without deciding whether two relevant factors constituted some evidence in support of unsuitability is contrary to law and should be reversed. Finally, Sheppard's challenge to the vagueness of Regulation section 2402 is without merit because this challenge is appropriate when addressing a criminal statutenot a regulation regarding parole suitability. The trial court's order granting Sheppard's writ of habeas corpus is reversed.

Respondents Bo Wei and Broadtron Technology (hereafter jointly Plaintiffs) sued appellants Great Wall Technology Company, Ltd., ExcelStor Technology Group, ExcelStor Technology, Inc.,[1] InchStor Technology, Inc., Eddie Lui, and Samuel Leung (hereafter jointly Defendants) for breach of contract, misappropriation of trade secrets, and promissory fraud arising out of an agreement to invest in Plaintiffs company. The jury found in favor of Plaintiffs on their breach of contract causes of action, but denied their fraud claims. The court granted Defendants motion for nonsuit on the misappropriation of trade secrets cause of action, but denied Defendants motion for attorney fees pursuant to Civil Code section 3426.4 on that cause of action.

On appeal, Defendants contend Wei cannot recover for wrongful termination as a matter of law, Weis damages were speculative, the court abused its discretion when it allowed Weis damages experts to testify, the special verdict form improperly allowed Wei to recover twice for breach of contract, and the court erred in denying Defendants motion for attorney fees on the misappropriation of trade secrets cause of action. Court find no error and affirm the judgment.

On April 25, 2005, the Santa Clara County District Attorney charged defendant Brian Jerome Armstrong with committing a lewd and lascivious act on a child under 14 (Pen. Code, 288, subd. (a); count one), with employing, persuading or inducing a minors involvement in modeling, posing or performing sexual conduct (Pen. Code, 311.4, subd. (c); count two), and with four counts of misdemeanor possession of child pornography (Pen. Code, 311.11, subd. (a); counts three through seven).[1] The jury found defendant guilty on all counts. The trial court sentenced defendant to two years in prison on count one and three years on count two, for a total of five years in state prison. On appeal, defendant contends: (1) the search warrant executed on February 12, 2004 was not supported by probable cause; (2) there is insufficient evidence to support the conviction under count two; (3) evidence submitted on count two was obtained in violation of his rights under Massiah;[2] (4) his counsel provided ineffective assistance by failing to move to suppress evidence obtained in violation of his Sixth Amendment rights under Miranda;[3] (5) evidence admitted pursuant to Evidence Code section 1108 should have been excluded; and (6) the trial court committed instructional error by failing to specify the sexual offenses referenced in CALJIC No. 2.50.01. We find insufficient evidence to support defendants conviction for a violation of section 311.4, but reject defendants remaining contentions. Court reverse the judgment and remand for resentencing.

A jury trial ended in a mistrial when the jury reached an impasse on lesser included offenses to a charge that defendant committed the first degree murder of Abelardo Chvez. Defendants case was tried anew, this time to the court on the basis of the transcripts of the prior trial and a new round of closing arguments. The court convicted defendant of the second degree murder (Pen. Code, 187)[1]of Chvez and the attempted murder ( 187, 664) of Herman Cuevas. It found true enhancements based on defendants inflicting great bodily injury by firing a gun. ( 12022.5, subd. (a), 12022.53, subds. (b)-(d).) It sentenced defendant to a determinate term of seven years in prison followed by an indeterminate term of imprisonment for 65 years to life.On appeal, defendant contends that the trial court abused its discretion in declaring a mistrial in the prior proceeding and therefore his second trial occurred in violation of the constitutional guaranties against being placed twice in jeopardy for the same offense, that there was insufficient evidence to convict him of second degree murder and attempted murder and to impose a gun use enhancement for the attempted murder, and that the enhancements should have been stricken. Court affirm the judgment.

Defendant Brian Keith Allen was charged with six counts of lewd and lascivious conduct with a minor under the age of 14 (Pen. Code, 288, subd. (a)),[1] three counts involving F. and three counts involving J.[2] Defendant was convicted by jury of two of the counts involving F. The jury found him not guilty of the third count involving F. and not guilty of the three felony counts involving J. However, with regard to each of the counts involving J., the jury found defendant guilty of the lesser-included offense of misdemeanor simple assault ( 240). The jury found the enhancement allegation that defendant had committed lewd and lascivious acts on more than one child under the age of 14 not true. It also made special findings related to the statute of limitations on the charges involving J.
Court have requested and received an informal response from the Attorney General and a reply from the defendant in a letter brief. Upon filing the opinion in this case, Court also issue an order to show cause before the superior court why defendant is not entitled to the relief requested.
The judgment is affirmed.