CA Unpub Decisions

Plaintiffs Amerisource Mortgage, Inc. and Angelo Di Nallo sued defendant Sean J. McConville, Amerisources President, for conversion and other related claims based upon McConvilles withdrawal of over $111,000 from Amerisources bank account. McConville moved for summary judgment, asserting that he had accepted an offer by Amerisource that allowed him to keep the funds if he was willing to surrender his interest in the company and enter into a release of all claims between himself and the company. Although the parties were not able to agree on the terms of the release, McConville contended that the offer and acceptance constituted an agreement only to negotiate in good faith, and that the $111,000 was the consideration Amerisource paid him to enter into that agreement. Plaintiffs argued that the parties intended that there would not be an agreement until there was a signed release. The trial court granted McConvilles motion and entered judgment in his favor. Court find that the language of the offer is ambiguous, and that McConville failed to meet his burden on summary judgment to present evidence to resolve the ambiguity. Accordingly, Court reverse the judgment.

Defendant Bankers Insurance Company (Bankers) appeals from an order denying its motion to vacate forfeiture of bail and to exonerate a bail bond issued on behalf of a criminal defendant, who failed to appear as ordered by the trial court. Court reverse the order with directions.

Appellants Patrick Gulledge and Malcolm Scott appeal their convictions for first degree murder. The murder was found to have been gang related and, with respect to Gulledge, to have been a hate crime. In his brief on appeal, Gulledge contends: (1) testimony that Gulledge had told his ex-girlfriend he would rob Mexicans if he needed cash should have been excluded as more prejudicial than probative; (2) evidence of witness intimidation should have been excluded because it was not attributable to him; and (3) the trial court erred in instructing the jurors they could infer guilt from efforts to intimidate witnesses, again because the intimidation referenced was not attributable to him.
Court agree the trial court erred in giving an implied malice instruction when implied malice was not at issue in the case, but conclude that the error was not prejudicial under the circumstances.

Several years after their marriage was dissolved pursuant to a stipulated judgment, the wife claimed her husband had misrepresented the value of his business back when they were negotiating the stipulated judgment. Her motion to set aside the judgment was ultimately denied and sanctions were imposed against her, but not her lawyer. The husband appeals, contending the wifes lawyer should have been sanctioned. Court disagree and affirm the judgment.

In an amended information, the People charged defendant, Marcos Santistevan, with assault with a deadly weapon (Pen. Code, 245, subd. (a)(1);[1]count 1), criminal threats ( 422; counts 2 & 5), corporal injury to a spouse or cohabitant ( 273.5, subd. (a); counts 3 & 6), and resisting an executive officer ( 69; count 4).
The People further alleged, as to all counts, that defendant suffered two strike convictions ( 667, subds. (b)-(i), 1170.12), was convicted of two felonies within the meaning of section 1203, subdivision (e)(4), and, as to counts 1, 2 and 5, was convicted of two serious felonies within the meaning of section 667, subdivision (a)(1).
On the Peoples motion, the trial court dismissed count 1 in the interests of justice ( 1385). On motion of the defense, trial on the priors was bifurcated.
The trial court is ordered to amend the abstract of judgment to reflect an award of 224 days of actual custody credit and 112 days of conduct credit, for a total precommitment credit of 336 days, and to forward a copy of the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

Appellant Brad Pye, Jr. appeals from the judgment entered in respondent Los Angeles Sentinel, Inc.s action for breach of contract. In the underlying lawsuit, respondent sought and obtained damages consisting of attorney fees expended in defending a prior action instituted by appellant. Appellant had pursued the prior action in violation of an existing release and settlement agreement. Appellant contends that any fees recoverable for his prosecution of the prior action should have been sought as costs after judgment was entered in that action rather than by way of a separate lawsuit. We agree. Under California law, attorney fees are not recoverable as damages in an action for breach of a release. Although the parties settlement agreement contained an attorney fee provision, current law mandates that contractual attorney fees be recovered as costs. Court therefore reverse the judgment.

In 1988, Frank Kow, Michael Sun, and William Wang actively participated in a planned robbery and the shooting of three undercover DEA agents who were posing as drug buyers. Two of the agents were killed, the third was wounded, and Kow and Sun were killed by other agents as they attempted to flee. Wang was wounded but survived and was later convicted of two counts of first degree murder, one count of attempted murder, and one count of robbery, and was sentenced to state prison for life without the possibility of parole. Court affirmed (People v. Wang (June 3, 1992, B049641) [nonpub. opn.]), and the Supreme Court denied review (People v. Wang (Aug. 27, 1992, S027668)).

Terrence Dwayne Free appeals from the judgment entered after a jury trial that resulted in his convictions for second degree murder (Pen. Code 187, subd. (a);

count 1)[1]during which crime he personally and intentionally discharged a firearm resulting in death ( 12022.53, subds. (b), (c), & (d)) and for possession of a firearm by a felon ( 12021, subd. (a)(1); count 2). He was sentenced to prison on count 1 to 15 years to life, plus 25 years to life on one firearm enhancement ( 2022.53, subd. (d)), and on count 2 to a concurrent 2 year middle term. Appellant contends the trial court committed prejudicial error by failing to find a prima facie case that two African-American jurors were excused based on unconstitutional group bias. He contends the judgment is infirm, because one jurors oath was defective, and thus, ineffective. He contends the trial court improperly excluded evidence of the victims propensity for violence and permitted the jury to consider appellants prior felony conviction for impeachment. He further contends his counsel was ineffective for failing to seek redaction of appellants police interviews. Appellant also contends the trial court erred in failing to stay the punishment on count 2 in violation of section 654 and in staying instead of striking the lesser firearm enhancements under subdivisions (b) and (c) of section 12022.53. He contends, and respondent concedes, the abstract of judgment should be corrected to delete language that the determinate term on count 2 be served first. The judgment is affirmed.

On July 25, 2005, a fourth amended petition was filed pursuant to Welfare and Institutions Code section 602[1]in Tulare County alleging that appellant, Emilio C., had concealed a firearm (Pen. Code, 12025, subd. (a)(2), count one), resisted a police officer (Pen. Code, 148, subd. (a)(1), count two), provided false information to a police officer (Pen. Code, 148.9, subd. (a), count three), possessed methamphetamine (Health & Saf. Code, 11377, subd. (a), count four), committed second degree robbery (Pen. Code, 211, count five), disturbed the peace (Pen. Code, 415, count six), made criminal threats (Pen. Code, 422, count seven), and removed an electronic monitoring device ( 871, subd. (d), count eight). A gang enhancement was made as to count six pursuant to Penal Code section 186.22, subdivision (d), and a gang allegation was made as to count seven pursuant to Penal Code section 186.22, subdivision (b)(1)(B). The judgment is affirmed.

Cindy T. appeals from orders terminating parental rights (Welf. & Inst. Code 366.26) to her children, 11 year old Cherish and 1 year old Michael. She contends the evidence overwhelmingly demonstrated she and Cherish had a beneficial relationship such that termination was detrimental to the child. On review, Court conclude the superior court did not abuse its discretion. Court therefore affirm.

The juvenile court committed Jordan S. to Camp Erwin Owen under a seven-year two-month maximum period of confinement after finding he committed residential burglary as a serious felony (Pen. Code, 460, subd. (a), 462, subd. (a), 1192.7, subd. (c)(18)), petty theft (Pen. Code, 488), and a probation violation (Welf. & Inst. Code, 777, subd. (a)(2)). Jordan appeals from the burglary finding, claiming insufficient evidence demonstrates he entered an inhabited dwelling. Court disagree and affirm the judgment.

Appellant stands convicted of attempted murder and other crimes. He contends there is insufficient evidence to support his conviction for dissuading a witness, his confrontation rights were violated, and his sentence is incorrect and unconstitutional. Court find his sentence must be modified to strike one of the enhancements, but in all other respects, Court affirm the judgment.

Appellant was convicted of (1) driving under the influence of alcohol (DUI) and causing bodily injury, and (2) driving with a blood alcohol level of .08 percent or more and causing bodily injury. The jury also found he inflicted great bodily injury on the victim. While Court agree with appellant that some of the jury instructions and verdict forms that were used in his trial were defective, Court find no basis for reversal. Court therefore affirm the judgment.

U.C. appeals from a judgment rendering him a ward of the juvenile court (Welf. & Inst. Code, 602) after the court found true he committed street terrorism, two firearm offenses, and the firearm offenses were for the benefit of a criminal street gang. U. argues the trial court erroneously denied his motion to suppress and insufficient evidence supports the courts true findings on the offenses and enhancements. None of his contentions have merit, and Court affirm the judgment.