CA Unpub Decisions

Channa Tho appealed from a judgment entered following a jury trial in which he was convicted in count 2 of second degree robbery (Pen. Code, 211) and in count 3 of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)) with the finding as to count 2 that he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b) and the finding by the court that appellant served two prior prison sentences within the meaning of Penal Code section 667.5, subdivision (b).[1]Appellant was sentenced to a total of 17 years in prison comprised of the upper term of five years for count 2, plus a consecutive term of 10 years for the firearm use and a consecutive one-year term for each prior prison term enhancement. For count 3, the court selected the middle term of two years to run concurrent with the sentence in count 2. Appellant contended he was unfairly prejudiced by the prosecutors assertion of irrelevant and inflammatory matter, that he received ineffective assistance of counsel, that the order for restitution was invalid, and that imposition of the upper term on his robbery conviction violated his Sixth and Fourteenth Amendment rights to a jury trial and due process. On September 20, 2006 Court issued an opinion affirming the judgment. As Court did in our original opinion, Court affirm the judgment.

Cottrell Barbee (appellant) appeals from the judgment denying his petition for writ of administrative mandate (Code Civ. Proc., 1094.5), which sought to set aside a decision of the Personnel Commission (commission) of the Los Angeles Unified School District (LAUSD) imposing discipline on appellant, a classified employee of LAUSD. Appellant advances the following contentions: (1) a conclusion that none of the sustained charges justified the alleged causes for discipline precluded imposition of discipline; (2) the commission exceeded its jurisdiction by imposing suspension in addition to demotion; (3) the conclusion that plaintiff drank on the job is unsupported by the findings; and (4) petitioner did not receive a fair trial because the hearing officer refused to enforce subpoenas and admitted forged documents and apparently coerced testimony.
Court find no merit in these contentions, and affirm the judgment.

Martin Raygosa, Isabel Sanchez and Felix Sanchez Enterprises, Inc., also known as L.A. Marker (collectively, the L.A. Marker defendants), appeal from the judgment entered after a jury awarded Isabel C. Rocha nearly $3.7 million in damages in this personal injury lawsuit. On appeal the L.A. Marker defendants contend the trial court erred in denying their request either to continue the trial or to exclude expert testimony on the ground Rocha had not previously identified the subject of the testimony in discovery. They also contend the court erred in denying their new trial motion based upon newly discovered evidence and excessive damages. Court affirm.

This appeal involves appellants effort to collect pre-judgment attorney fees and costs following confirmation of an arbitration award.[1] The superior court initially denied his motion without prejudice, stating it wanted more evidence. When appellant did refile with additional detail about the fees charged, defendants argued the new filing was a motion for reconsideration and was untimely pursuant to Code of Civil Procedure section 1008. The superior court denied the motion, ruling that appellant failed to prove he was not seeking fees and costs already sought in the arbitration or outside the period between the arbitrations and the judgment. Concluding there was an abuse of discretion in awarding no fees, Court reverse and remand to allow the trial court to decide which fees and costs were properly sought.

Plaintiff and appellant Noeman Samuels sued defendant Ira Forest claiming that Forest intentionally interfered with an oral agreement between Samuels and Sohrab and Faramarz Shakib (the "Shakibs") pursuant to which the Shakibs agreed that they would not attempt to purchase the Canyon Center, commercial property located in Santa Clarita (the "Property"), from Forest unless and until they were notified by Samuels that he was unable to reach and consummate a deal to acquire the Property himself.[1]On Forest's demurrer, the trial court ruled that the statute of limitations barred this lawsuit, and that, "Forest, the seller of the property, was not bound by the alleged agreement between plaintiff and defendants Sohrab Shakib and Faramarz Shakib and was privileged to sell his property to whomever he wished." Court conclude that the statute of limitations bars the action, and so affirm the judgment.

Tommie Huey appeals from the order revoking his probation, contending that the court erred by ordering him to pay his costs of probation (Pen. Code, 1203.1b) because no such order was lawfully imposed when his probation was first granted. Court affirm the courts order.

In the underlying action, which arises out of contracts to sell a restaurant, the trial court entered judgment against appellant Anthony G. Katsaras on respondents claims for breach of contract and breach of the implied covenant of good faith and fair dealing. Katsaras contends that the judgment is infirm because the parties cancelled the sales contracts by mutual agreement. Court affirm.

Joseph William Stubbs[1]appeals from a judgment entered upon his conviction by jury of second degree commercial burglary (Pen. Code, 459).[2] The trial court found to be true the allegation that he had suffered four prior prison terms within the meaning of section 667.5, subdivision (b). It sentenced appellant to the upper term of three years for the burglary conviction, plus an additional year for each of the four prior prison term enhancements. Appellant contends that (1) the prosecution committed Griffin[3]error, (2) alternatively, if the Griffin claim was forfeited by failure to raise it in the trial court, then appellant suffered ineffective assistance of counsel, and (3) the trial court erred in imposing an upper term sentence because the factors in aggravation were not found by the jury beyond a reasonable doubt, thereby violating appellants Sixth Amendment right to jury as articulated in Cunningham v. California. Court
affirm.

Jose Juan Acevedo appeals an order granting him five years' probation, with terms and conditions, following his conviction of child molestation and sexual battery. (Pen. Code, 288, subd. (c)(1) & 243.4, subd. (e)(1).) Court conclude that the trial court properly instructed regarding reasonable doubt and affirm.

Cliff Edward Meyers appeals from the judgment entered after he pleaded no contest to individual counts of carjacking, robbery, assault, and grand theft. Meyers contends that a $21,000 restitution award to his grand theft victim (Pen. Code, 1202.4, subd. (f)) was not supported by substantial evidence and was obtained in violation of his due process rights to attend the hearing and present evidence. Court affirm.

Petitioner Eric Alden seeks mandamus to review the trial courts order striking the prayer for punitive damages and the allegations supporting the prayer from his third amended complaint (TAC). Because we conclude the seventh cause of action alleges facts sufficient to support the prayer for punitive damages, Court issue the writ and order the trial court to vacate its order.

Michele Lawrence entered a negotiated plea of no contest to possession of methamphetamine and misdemeanor forgery and was granted probation on various terms and conditions, including that she not use drugs. Probation was later revoked, and at a contested hearing held on November 27, 2006, the court found that defendant violated probation by failing to report timely to her probation officer and failing drug tests. Probation was then reinstated but modified to include the requirement that defendant serve 365 days in county jail. On January 2, 2007, the date set for defendant to surrender herself, the court denied defendants alternative requests to withdraw her guilty plea, rescind the requirement of jail time, and extend the date for her to surrender.
court have examined the entire record and are satisfied that defendants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109 110; People v. Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed.

Joanne N. (mother) appeals from the termination of her parental rights to two of her children, Jacob N. and Johanna I., pursuant to Welfare and Institutions Code section 366.26. The only issue on appeal is whether substantial evidence supports the juvenile courts finding that the children were adoptable. Court affirm.

Defendant Jason Wilbert Johnson was charged with attempted murder (Pen. Code, 664, 187, subd. (a))[1]and attempted carjacking ( 664, 215, subd. (a)), with special allegations that he intentionally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)), personally discharged a firearm ( 12022.53, subd. (c)), personally used a firearm ( 12022.53, subd. (b)), and inflicted great bodily injury (12022.7, subd. (a)) in the commission of the offenses. In the first trial, the jury convicted defendant of attempted carjacking and found true two related enhancements but failed to reach a verdict on the attempted murder charge and related enhancement.
On retrial, a different jury found defendant guilty of attempted murder and found the firearm/great bodily injury enhancement to be true.