CA Unpub Decisions

Appellant Nick Soto was convicted after jury trial of possessing a dirk or dagger (count 1), two counts of attempting by threat or violence to prevent a peace officer from performing his duty (counts 2 & 3), and two counts of misdemeanor resisting arrest (counts 4 & 5). Two prior prison term enhancements were found true. (Pen. Code, 12020, subd. (a); 69; 148; 667.5, subd. (b).) Appellant was sentenced to an aggregate term of six years and four months imprisonment, calculated as the upper term of three years for count 1, two consecutive eight-month terms for counts 2 and 3 and two consecutive one-year terms for the prison priors; two concurrent six-month terms were imposed for counts 4 and 5.
Appellant argues that the court prejudicially erred by failing to give a unanimity instruction for count 2. Also, he challenges the courts refusal to apply section 654 to the threat counts and to the resisting arrest counts. Finally, he contends that imposition of the upper term constitutes prejudicial Blakely/Cunningham error. Court agree with appellant that the one of the terms imposed for the resisting arrest counts must be stayed; the sentencing court determined that section 654 applied to these counts but failed to order one of the two terms stayed. Appellants other arguments are not convincing. Court order the judgment modified and, as modified, affirm.

Shakeyma Yvette Brooks was convicted by a jury of assault with a deadly weapon. In this appeal, she argues that the trial court erred because it improperly instructed the jury on self defense, admitted evidence that was irrelevant or unduly prejudicial, and imposed an upper term sentence that violated her federal constitutional rights. Court affirm.

Three appeals have been filed in the present action for premises liability and negligence brought by appellant Jason Heilig (Heilig or appellant) against defendant and respondent Touchstone Climbing, Inc. (Touchstone or respondent): from a judgment entered upon an order that granted respondents motion for summary judgment and dismissed the action; from an order that struck respondents cross-complaint but denied appellant an award of attorney fees; and from an order and amended judgment that awarded attorney fees to respondent.[1] Appellant argues that the trial court erred by finding that the defense of express assumption of the risk bars his action. He also claims that respondent was erroneously awarded attorney fees based upon a provision in an agreement between the parties for release from liability, and that he was improperly denied an award of attorney fees pursuant to Code of Civil Procedure section 425.16, subdivision (c). Court disagree and affirm the judgment and order.

Brian Thomas McMahon appeals his conviction by jury verdict of one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and one count of possession of a hypodermic needle and syringe. (Bus. & Prof. Code, 4140.) In a bifurcated proceeding, the court found true the allegation that he had served three prior prison terms. (Pen. Code, 667.5, subd. (b).) In our original unpublished opinion, filed May 31, 2007, we affirmed appellants convictions, but reversed the upper term sentence based on our interpretation of Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856]. On August 8, 2007, the California Supreme Court granted a petition for review. On September 12, 2007, it transferred the case to us for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. In light of these cases, Court affirm appellants upper term sentence.

This is an appeal from a judgment after a jury found appellant Hyun Koo Kim liable for breach of contract, breach of implied warranty and negligence. Court affirm.

This is an appeal from an order denying a motion by appellant Hartford Casualty Insurance Company (Hartford) to disqualify the law firm representing respondents J.R. Marketing, L.L.C., Noble Locks Enterprises, Inc., Jane and Robert Ratto and Penelope Kane (collectively, respondents). court affirm.

Defendant was found guilty of receiving stolen property and admitted an allegation of a prior prison conviction. On appeal he contends that the court improperly prohibited testimony regarding his prior alcohol blackouts, improperly instructed the jury regarding voluntary intoxication, and sentenced him to an aggravated term in violation of the principles enunciated in Cunningham v. California (2007) 549 U.S., [127 S.Ct. 856, 868-871] (Cunningham). Court find no error and affirm.

J.C. (appellant) appeals after the juvenile court sustained an allegation of assault with a firearm in a juvenile wardship petition (Welf. & Inst. Code, 602) and committed him to the Department of Juvenile Justice (DJJ) (formerly the California Youth Authority). On appeal, he contends the court abused its discretion when it committed him to DJJ because there is insufficient evidence of probable benefit to him from the commitment. Court affirm.

Appellant James C. was declared to be a ward of the juvenile court under Welfare and Institutions Code section 602 after the court sustained allegations that he committed an attempted second degree robbery. (Pen. Code, 664/211, 212.5, subd. (c).) The court ordered placement in a court-approved home or institution for a maximum term of three years. (See Welf. & Inst. Code, 726, subd. (c).) Although appellant originally challenged his maximum term of confinement as greater than that permitted for attempted second degree robbery, he has withdrawn that argument in his reply brief and concedes the three-year maximum term was appropriately set. The concession appears appropriate, although not for the reason contemplated by the parties.
The case is remanded to the juvenile court for a calculation of predisposition custody credits. The judgment is otherwise affirmed.

This appeal presents a claim that the trial court erred when it denied a motion to strike brought under Code of Civil Procedure section 425.16, and refused to dismiss a defamation action as a Strategic Lawsuit Against Public Participation (SLAPP suit). Court affirm.

Plaintiff and respondent Rita Parnala (Parnala) filed suit against defendant and appellant Plycon Transportation Group, Inc. (Plycon) and an individual employed by it,[1] alleging sexual discrimination and harassment. Prior to the trial date, Plycon tendered an offer of compromise pursuant to Code of Civil Procedure section 998.[2] The offer stated that Plycon would, to settle the case, pay Parnala $60,000 in exchange for a dismissal with prejudice. The offer was silent regarding the payment of attorney fees or costs. Parnala accepted the section 998 offer. After payment of the $60,000, Parnalas counsel filed a motion seeking both attorney fees and costs, a motion which, as modified in terms of amount, the trial court granted. Plycon then filed a motion pursuant to section 473 to set aside that award. The trial court denied the motion and Plycon appeals from that order. Court agree with the trial court and affirm its order.

After the juvenile court sustained a third supplemental petition (Welf. & Inst. Code, 602) alleging that Steven M. had committed a battery with injury upon a peace officer (Pen. Code, 242, 243, subd. (c)(2)), appellant appealed from the judgment contending that there is insufficient evidence to sustain the conviction. Court affirm.

Anthony Hamilton appealed from the judgment entered following a court trial in which he was convicted of voluntary manslaughter. (Pen. Code, 192, subd. (a).) Sentenced to the upper term of 11 years, he contended his sentence violated the Sixth Amendment to the United States Constitution under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely). On April 21, 2005, we filed our opinion reversing the sentence and remanding the matter to the trial court for further proceedings. On July 13, 2005, a petition for review was granted by the California Supreme Court, and on September 7, 2005, the matter was transferred to this court with directions to vacate our decision and to reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238. On October 20, 2005, we issued an opinion concluding, in light of Black, Court found no constitutional error in sentencing.

Juan Fernando Lopez appealed from the judgment entered following a jury trial in which he was convicted of forcible rape, count 1 (Pen. Code, 261, subd. (a)(2)); forcible oral copulation, count 2 (Pen. Code, 288a, subd. (c)(2)); three counts of corporal injury to a cohabitant/childs parent, counts 3, 6, 7 (Pen. Code, 273.5, subd. (a)); assault by means likely to produce great bodily injury, count 5 (Pen. Code, 245, subd. (a)(1)); assault by means likely to produce great bodily injury and with a deadly weapon, count 8 (Pen. Code, 245, subd (a)(1)); and false imprisonment by violence, count 9 (Pen. Code, 236) with the further finding that in the commission and attempted commission of the forcible rape and forcible oral copulation, appellant personally used a firearm, to wit, a handgun within the meaning of Penal Code section 12022.53, subdivision (b); and that in the commission of one count of corporal injury, appellant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). In a bifurcated proceeding, the court found that appellant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Appellant was sentenced to prison for a total of 46 years and contended the forcible rape conviction must be reversed because the trial court failed to sua sponte instruct on the necessarily included offenses of assault and battery and that the court committed sentencing error. Court issued an opinion on March 30, 2006, affirming the judgment.