CA Unpub Decisions

Defendants Salvador Mendoza, Henry Rodriguez Santana, and Francisco Garcia were convicted of the first degree murder of Roberto Ramirez with the additional special circumstance findings that the murder was committed while in the commission of a kidnapping and torture. The defendants were also convicted of kidnapping, torture, and conspiracy to murder. Defendant Mendoza was convicted of the unlawful possession of a firearm. They appeal, raising numerous issues.
The trial court is ordered to strike the Penal Code section 1202.45 parole revocation fine for each defendant. In addition, we direct the trial court to amend the abstract of judgment for each defendant to reflect that the conspiracy to commit murder, torture, and kidnapping sentences are stayed, including the arming enhancement for the kidnapping conviction. Additionally, as to Mendoza, the court must stay his sentence for possession of a firearm in count 5. After making the ordered changes, the court forward the corrected abstracts of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.

Appellant Derick Ryan Johnson was convicted of count I, unlawful taking or driving a vehicle (Veh. Code,[1] 10851, subd. (a)), based on his conduct of breaking into a Honda, cracking the steering column, and backing it out of a parking space behind an apartment building. He was unable to drive away in the Honda because the steering wheel was still locked, so he left it in the middle of the parking lot. He was also convicted of count II, attempted unlawful taking or driving a vehicle (Pen. Code, 664; Veh. Code, 10851), based on his conduct of coming back to the parking lot with the intent to use his tools, break the steering wheel lock, and drive away with the car. On appeal, he contends count II must be reversed because there is insufficient evidence of an attempt, instructional error, and count II is a lesser included offense of count I. We also requested briefing on whether the sentence imposed for count II violated Penal Code section 654. The instant case presents a close question as to whether appellant was properly convicted of an attempt, given the specific facts and circumstances of this case. Court affirm appellants conviction for count II, but the sentence imposed for that count must be stayed.

Continuing its circuitous journey toward finality, this case comes before us after the California Supreme Court granted review and transferred the matter to this court for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. Court affirm the judgment and sentence.

Continuing a circuitous journey toward finality, this case comes before us after the California Supreme Court granted review and transferred the matter to this court for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. Court affirm.

Michael Evanson in propria persona appeals from the August 29, 2005, order (August order) of the Contra Costa County Superior Court setting aside and vacating a July 15, 2005, child support order (July order) based on clerical and/or judicial error, granting, in part, appellants motion to modify a March 16, 2005, court final order (March order) regarding child support, and recalculating child support payable to respondent Kari Barstow-Evanson for several periods beginning in October 21, 2000, and going forward.
Respondent counters, among other things, that this appeal is untimely and should be dismissed Court affirm in part and reverse in part.

Michael Roberts, an inmate at Pelican Bay State Prison, was convicted of throwing feces (gassing) at a correctional officer. He argues that the prosecution violated due process by breaching an alleged promise to dismiss this case after Roberts was convicted in another case; that the prosecution failed to prove an element of the offense; that the trial court erred in denying his Pitchess discovery motion; and that the trial court erred in not allowing him to reopen his case so he could testify in his own defense. Court conclude the trial court erred in denying Roberts Pitchess motion and reject the other claims.

Baywood Service Center and American Tow Service are competing towing companies in the City of Petaluma. Baywood brought suit against American under the unfair competition law (Business and Professions Code, section 17200 et seq.) after American entered into a towing agreement with the City which Baywood believed violated state law regulating police department vehicle tows. After a bench trial, Baywood obtained declaratory and injunctive relief, as well as attorney fees. American contends that Baywood lacks standing, that the action is moot, that the Citys towing agreement provides a safe harbor from liability under the unfair competition law, and that the trial court erred in awarding attorney fees. Court affirm.

Ian Zimmerman, attorney for plaintiff Greg Jolley, appeals from a trial court order imposing discovery sanctions in the amount of $9,562.89. Court affirm.

Appellant Joseph Edward Hughes was tried before a jury and convicted of six counts of lewd and lascivious conduct with a child under 14, along with findings that he had committed acts of substantial sexual conduct as to two of the counts. (Pen. Code, 288, subd. (a), 1203.066, subd. (a)(8).) The trial court imposed an aggregate prison sentence of 18 years, consisting of the eight year upper term on one of the counts, plus a consecutive two year term (one third the middle term) on each of the five remaining counts. In our original unpublished opinion filed on April 21, 2006, we affirmed the judgment and sentence. One of the arguments raised and rejected was a claim that the upper and consecutive terms violated Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), because they were based on factors that were neither admitted by appellant nor found true by the jury. The United States Supreme Court granted appellants petition for writ of certiorari on the Apprendi-Blakely issue. On February 20, 2007, that court vacated the judgment and remanded the case to us for further consideration in light of its decision in Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham). We requested and received further briefing from the parties on the effect of Cunningham and two recent California Supreme Court decisions interpreting that case: People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In light of these decisions, Court conclude the sentence imposed does not violate the federal constitution and Court again affirm the judgment.

In these consolidated appeals, appellant Jessica Grinberg appeals the trial courts award to her of $4,000 in monthly child support from respondent Van Phillips for their daughter Olivia. Jessica also appeals the courts denial of a portion of her attorney fees. Court affirm the trial courts orders with respect to both appeals.

In these consolidated appeals, appellant Jessica Grinberg appeals the trial courts award to her of $4,000 in monthly child support from respondent Van Phillips for their daughter Olivia. Jessica also appeals the courts denial of a portion of her attorney fees. affirm the trial courts orders with respect to both appeals.

Appellant was convicted of assaulting an elder in a fast food restaurant, and of vandalizing the restaurants property. On appeal, she contends that the prosecutor committed misconduct in his closing argument; that her trial counsel rendered ineffective assistance by failing to object to some of the prosecutors arguments and by failing to request a pinpoint jury instruction; and that the trial judge erred in denying her motion to strike her prior strike. Court affirm.

Antonio Medina, Jr., pleaded guilty to two counts of sale of methamphetamine and one count of possession for sale. (Health & Saf. Code, 11378, 11379, subd. (a).) He further admitted an allegation in connection with the possession for sale count that he was personally armed with a firearm. (Pen. Code, 12022, subd. (c).) In a separate case, he pleaded guilty to possession of stolen property. Under the terms of the negotiated disposition, the remaining counts were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). The plea was open to the court with respect to sentencing, except for the condition that the sentence in the second case be concurrent with the sentence imposed in the first.
On appeal defendant contends (1) the court, in violation of his Sixth Amendment rights as defined in Cunningham v. California (2007) 549 U.S __ [127 S.Ct. 856] (Cunningham), imposed the upper term based upon facts neither found by a jury nor admitted by defendant; (2) the court violated the proscription against dual use of fact by relying on the fact that he had a loaded firearm in selecting the upper term because this same fact underlay the personal arming enhancement; and (3) the court failed to state separate reasons for imposing the upper range of five years for the personal arming enhancement.
Court affirm the judgment.

Lynn B. Jacobson (Jacobson) appeals the trial courts order ruling that her petition for writ of mandate filed against the Town of Portola Valley (Town) and Tom Lodato (Lodato) is barred by the statute of limitations. The Town appeals the courts order denying recovery of costs it incurred in preparing the administrative record. Court affirm both orders.