CA Unpub Decisions

Defendant Eric Paul McLellan appeals from a judgment entered after a jury found him guilty of felony possession of heroin. The trial court found true the allegations in the information that defendant had two serious and violent prior felony convictions within the meaning of Penal Code section 667, subdivisions (d) and (e)(2)(A) and section 1170.12, subdivisions (b) and (c)(2)(A). (All further statutory references are to the Penal Code unless otherwise specified.) After striking one of the prior conviction allegations, the trial court sentenced defendant to a total prison term of 10 years. Court affirm and remand for resentencing.
Court reject each of defendants contentions of reversible error during trial and hold: (1) the trial court did not violate defendants federal or state constitutional rights by excluding a witnesss hearsay statement to police because the statement did not fall within a hearsay exception; (2) defendants constitutional right against self incrimination was not violated by the prosecutors closing argument; and (3) the prosecutors closing argument did not contain factual statements she knew to be false.
Court also reject two of defendants contentions with regard to sentencing, concluding (1) the trial court did not abuse its discretion by refusing to dismiss both prior conviction allegations, and (2) the trial courts imposition of prior prison term enhancements did not violate the double jeopardy clause of the federal or state Constitution, or the provisions of section 654 or 1023.
In light of the United States Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), we remand for resentencing on the sole ground the trial court imposed an upper term sentence based on aggravating circumstances found true by the court rather than by a jury beyond a reasonable doubt.

their father, Miguel C., Sr. (Father), fatally shot their mother. In May 2006, Rodrigo stated he was open to receiving a letter from Father. In July, the juvenile court granted Fathers request to change the courts no‑contact order to permit Father to send Rodrigo letters. Neither Father nor the Orange County Social Services Agency (SSA) was informed that the court had granted Fathers request.
At the 12‑month review hearing in January 2007, Father argued he was not provided reasonable reunification services because he was unable to write to Rodrigo, notwithstanding the courts July 2006 order permitting him to do so. The juvenile court rejected Fathers argument, finding that reasonable reunification services had been provided to Father. The court terminated reunification services as to Miguel and Rodrigo, and set the matter for a permanency hearing. Father filed a petition for a writ of mandate, challenging the courts orders as to Rodrigo only.
Court deny the petition. The record in this case contains substantial evidence supporting the juvenile courts finding Father was provided reasonable reunification services.

In case No. CC471971, a jury convicted defendant Greg Bruce Barnes of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and found true the enhancement that he personally used a knife. ( 667.) To dispose of case No. CC587446, defendant pled guilty to possession of a billy club ( 12020, subd. (a)(1)), agreed to four years in state prison on both cases, and the prosecution dismissed the allegation that defendant was out on bail at the time of the offense. ( 12022.1.) This appeal challenges the trial courts refusal to require the assault victim to appear for an in-court identification by a defense witness after the prosecution rested. The judgment is affirmed.

This case comes to us on remand from the California Supreme Court, following its reversal of our previous decision. The trial court had denied plaintiff R. Thomas Fairs motion to compel arbitration. The motion was based on an arbitration clause in a document signed at the conclusion of mediation by plaintiff and defendants Karl E. Bakhtiari (Bakhtiari) and Maryann E. Fair (Maryann Fair), as well as by defendants Stonesfair Financial Corporation (SFC), Stonesfair Management Company, LLC (SMC), and Stonesfair Corporation (SC) (collectively Stonesfair entities). On appeal from the trial courts denial of plaintiffs motion to compel arbitration, we reversed the judgment on the ground that the document in question satisfied a statutory exception to the inadmissibility of written or oral communications made during mediation. We also concluded that the document contained a valid agreement between the parties to arbitrate all disputes. (Fair v. Bakhtiari (Oct. 12, 2004, A100240).) The California Supreme Court granted review and reversed our decision. (Fair v. Bakhtiari (2006) 40 Cal.4th 189 (Fair).) It held that the document did not satisfy the statutory exception to the inadmissibility of communications made during mediation and remanded to this court for further proceedings. (Fair, at p. 200 & fn. 7.) The judgment is affirmed.

Defendant appeals his conviction by jury trial of attempted murder (Pen. Code, 187, 664) with personal and intentional discharge of a firearm ( 12022.53, subds. (b), (c) & (d)), and personal infliction of great bodily injury ( 12022.7, subd. (a)). The jury also found true two prior prison term allegations ( 667.5, subd. (b).) In a bifurcated sanity phase, the jury found defendant sane at the time he committed the attempted murder. He contends the courts instructions on malice aforethought and imperfect self defense were erroneous, and that the court committed Blakely error (Blakely v. Washington (2004) 542 U.S. 296). Court affirm.

Appellant filed a complaint against respondent Kaiser Foundation Health Plan, Inc., alleging it had failed to hire him for an attorney position because of his age. Kaiser moved for summary judgment arguing it was entitled to prevail as a matter of law because appellants age did not play any part in the decision not to hire him. Rather, the person in charge of the decision had offered the job to another attorney before she even became aware that appellant had applied. The trial court agreed with Kaiser and granted the motion. Appellant now appeals contending triable issues of fact were presented. Court disagree and affirm.

Rickie G. Hall (Hall) appeals from a sentence imposed after a probation revocation hearing. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, in order to determine whether there is any arguable issue on appeal. Hall has submitted supplemental argument as well. Court find no arguable issue and affirm.

Defendant appeals from the judgment entered following a jury trial that resulted in his conviction for possession of a controlled substance, methamphetamine, while armed with a firearm. The trial court suspended imposition of sentence and placed Sheets on probation for three years, on the condition he serve 270 days in jail. Sheets contends the trial court erred by misinstructing the jury, refusing a pinpoint instruction, and erroneously admitting evidence. He further asserts that the courts order that he submit DNA samples was unauthorized, because the DNA and Forensic Identification Database and Data Bank Act of 1998, as amended by Proposition 69 (the DNA Act) is facially unconstitutional. Court affirm.

Defendant appeals from the judgment entered following a jury trial that resulted in his conviction for petty theft with a prior conviction (Pen. Code, 666.) Garcia had previously pleaded guilty to possession of methamphetamine and had been granted deferred entry of judgment. The deferred entry of judgment was terminated due to Garcias commission of the petty theft. Garcia was sentenced to a prison term of five years, four months for both convictions.
Garcia contends his sentence must be vacated because the trial court erroneously believed it was required to impose consecutive sentences on the two convictions. Court agree. Court affirm the judgment of conviction, but vacate the sentence and remand for resentencing.

Defendant appeals from a superior court order denying his petition for writ of error coram nobis. The petition challenged the decision of the Board of Parole Hearings (formerly, the Board of Prison Terms; collectively, Board) not to set a parole release date for appellant. Finding no error in the decision of the trial court or of the Board, Court affirm.

Patrick A. Johnson (Johnson) appeals the judgment (order revoking probation) entered following his plea of no contest to failing to annually register as a sex offender (Pen. Code, 290, subdivision (a)(1)(D))[1]in Superior Court case number TA077620, and the judgment entered following his plea of no contest to making a terrorist threat ( 422) and admission he had previously been convicted of a felony pursuant to the Three Strikes law ( 667, subd. (b) to (i); 1170.12, subd. (a) to (d)) in Superior Court case number BA293282. The trial court sentenced Johnson to a total term of six years in state prison. Court dismiss Johnsons appeals as inoperative for failure to obtain certificates of probable cause. The appeal (order revoking probation) from Superior Court case number TA077620 is dismissed.

Pursuant to a negotiated settlement, defendant Jasper Rick Tennial pleaded no contest to conspiracy to commit burglary (Pen. Code, 182, subd. (a), 459), guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), and admitted an allegation of a prior strike conviction (Pen. Code, 667, subds. (b)-(i), 1170.12, subd. (a)-(d)). In exchange for his pleas and admission he received the dismissal of several other counts and a promise of no greater a sentence than four years. In accordance with the settlement, the court sentenced defendant to four years in state prison, consisting of the low term of 32 months (low term of 16 months doubled because of the strike) for the conspiracy, plus a consecutive eight months (1/3 midterm of two years) for the methamphetamine possession. The court also imposed restitution fines of $800 pursuant to Penal Code sections 1202.4 and 1202.45. The judgment is affirmed.

A modification decision.

Kyung Ja Su filed this wrongful death action against Plaza del Sol, LLC (Plaza del Sol), Value Investments, Inc. and Victor Liong (collectively with Plaza del Sol, the Defendants) after her husband was killed in a shooting at the Defendants' shopping center, where she and her husband operated their business. The Defendants cross-claimed against Mrs. Su for express indemnity pursuant to her lease agreement with them and for declaratory relief, although their cross-claims were later dismissed by the court. At trial a jury found in Mrs. Su's favor and the trial court thereafter granted Mrs. Su's request to recover her attorney fees incurred in defending against the cross-complaint pursuant to an attorney fee provision in the lease agreement, but denied her request for fees incurred in pursuing the complaint.
Plaza del Sol and Mrs. Su both appeal the resulting judgment. Plaza del Sol contends that, as a matter of law, it had no duty to undertake security measures to protect shopping center tenants and patrons from a drive-by shooting and that there was no substantial evidence to support the jury's finding of causation. Mrs. Su contends that the superior court erred in denying her request for attorney fees incurred in prosecuting her complaint.
Court find Plaza del Sol's arguments unavailing and affirm the judgment in favor of Mrs. Su. Court conclude, however, that the superior court erred in denying Mrs. Su's request to recover her attorney fees incurred in prosecuting her complaint and reverse the judgment in that respect.