CA Unpub Decisions

Oscar Otero appeals his conviction for possessing methamphetamine for sale (Health & Saf. Code, 11378) on the ground that his motion to suppress evidence should have been granted. Court affirm.

A jury found Enrique Cuello guilty of six counts of forcible lewd acts on a child (Pen. Code, 288, subd. (b)(1)), two counts of forcible oral copulation ( 288a, subd. (c)(2)), and four counts of dissuading a victim by force or threat ( 136.1, subd. (c)(1)). The trial court imposed the upper term on forcible lewd act and forcible oral copulation counts. Court affirm.

This case concerns the sale of a family owned business, Doty Bros. Equipment Co. (Doty Bros.), which engages in the laying of underground pipe. The sellers,[1]plaintiffs below, appeal from a summary judgment in favor of the purchaser, Meruelo Enterprises, Inc. (Meruelo Enterprises), and other defendants.[2] Meruelo Enterprises cross-appeals from an order of dismissal (judgment) of its cross complaint seeking attorney fees incurred in defending a prior federal action prosecuted by John Doty. Court find a triable issue of fact concerning whether Meruelo Enterprises breached the covenant of good faith and fair dealing implied in the sale agreements and therefore reverse the summary judgment. Finding no error in the denial of attorney fees and costs for defending the federal action, Court affirm the order of dismissal.

A jury found that the Long Beach Police Department (LBPD) retaliated against Officers Asif Khan and Alberto Vargas in violation of the Fair Housing and Employment Act (FEHA) because they engaged in the protected activity of filing a sexual harassment lawsuit against their direct supervisor, Sergeant Richard Farfan (the Farfan lawsuit). (Gov. Code, 12900 et seq.) The City of Long Beach now appeals the judgment and the trial courts denial of its motions for judgment notwithstanding the verdict and a new trial on the grounds of lack of substantial evidence and improper jury instructions. The judgment is affirmed.

Peter F. Paul appeals from the trial courts order granting the special motion to strike under Code of Civil Procedure section 425.16[1]filed by Hillary Rodham Clinton (Senator Clinton) and Hillary Rodham Clinton for U.S. Senate Committee, Inc. (Clinton for Senate) directed to the fifth and fourteenth causes of action for conspiracy to commit fraud in Pauls first amended complaint. Paul also appeals from the trial courts order denying his motion for leave to depose Senator Clinton. Court affirm.

Plaintiffs and appellants Dean Stewart and Jeanie Young (plaintiffs) sustained injuries when a vehicle owned and operated by Mercedes Gamero (Mercedes) rear-ended a vehicle driven by Daniel Montoya (Montoya), causing Montoyas vehicle to collide with plaintiffs vehicle. Prior to filing suit, plaintiffs attorney corresponded with Mercedess insurer, sometimes referring to Mercedes as the insured but other times referring to Francisco Gamero (Francisco)[1]as the insured. Plaintiffs filed suit just prior to the expiration of the statute of limitations, naming Francisco as the defendant, not Mercedes. Well after the statute of limitations had expired, plaintiffs filed and the trial court approved a form amendment to correct the name of the defendant (name correction amendment) by substituting Mercedess name for Franciscos pursuant to Code of Civil Procedure 473.[2]After allowing Mercedes to have her summary judgment motion heard less than 30 days prior to trial and reconsidering its order approving the name correction amendment, the trial court granted Mercedess motion for summary judgment on the grounds that plaintiffs claims against Mercedes were time barred.
Court hold that the trial court had inherent power to reconsider its prior orders, and that it properly exercised that power in this instance. We further hold that the grant of summary judgment was proper because the purported amendment under section 473 did not relate back to the filing date of the original complaint. Court therefore affirm the judgment.

Macdonald Haber appeals a judgment following conviction of battery upon a cohabitant, and attempting to prevent or dissuade a witness from giving testimony or assisting in the prosecution of a crime, with findings of a prior serious felony conviction alleged for enhancement and recidivist sentencing. (Pen. Code, 273.5, subd. (a), 136.1, subds. (a)(2) & (b)(2), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).) Court modify Haber's presentence conduct credits and order correction of the abstract of judgment in several respects, but otherwise affirm.

Defendant Willie James Chisom appeals his conviction for possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)),[1]misdemeanor battery ( 242), and misdemeanor assault ( 240). He contends on appeal (1) the trial court erred in dismissing a juror who was 15 minutes late to court; (2) the trial court abused its discretion in imposing the upper term on the felon in possession of a firearm count; and (3) the trial courts use of aggravating factors in imposing the upper term violated his right to a jury trial under the Sixth and Fourteenth Amendments. Court affirm.

Mark Alexander Baquedano was charged with assault with a deadly weapon. (Pen. Code, 245, subd. (a).)[1] The information further alleged that Baquedano committed the crime for the benefit of a criminal street gang pursuant to section 186.22, subdivision (b)(1)(A). Baquedano waived a jury trial. The trial court found him guilty of assault with a deadly weapon and found the gang allegation to be true. The court sentenced Baquedano to the upper term of four years for the assault and five years for the gang enhancement.
Because the maximum term under section 186.22, subdivision (b)(1)(A), is four years, Court reduce the sentence for the gang enhancement to four years. In all other respects Court affirm.

In M.A. Butters & Associates v. City of Lancaster, No. B171806, filed on August 12, 2005 [nonpub. opn.], we affirmed a judgment in favor of M.A. Butters & Associates (Butters) for $1,069,988 in contract damages. We disapproved a further award of $750,000 for the loss of future profits on the ground that, under the facts of this case, these damages were speculative. The trial court did not award any attorney fees on the ground that the contract entered into between Butters and the City of Lancaster (City) did not contain a provision for fees. We disagreed with this conclusion and remanded with directions to hear and determine the amount of attorney fees to be awarded to Butters. Upon the remand, and following comprehensive briefing and argument, the trial court awarded Butters $519,750 in attorney fees on May 24, 2006. Butters appeals, contending that the award is inadequate. City also appeals, claiming that the award is too high. Court hold Butters is entitled to recover an additional $37, 030 in attorney fees.

Appellant Dandre Damone Sewell appeals from a judgment entered after a jury found him guilty of first degree murder (Pen. Code, 187, subd. (a)), and second degree murder ( 187, subd. (b)). As to both counts, the jury found true the allegations that appellant personally and intentionally used and discharged a firearm which caused great bodily injury or death within the meaning of sections 12022.53, subdivisions (b), (c), and (d). The jury also found true the special circumstance allegation of multiple murders within the meaning of section 190.2, subdivision (a)(3).Appellant contends that: (1) the admission of Sterlinso Jacksons (Jackson) preliminary hearing testimony without an adequate showing of due diligence violated his right to confrontation; and (2) the giving of self defense jury instructions violated his right to due process

Federico Brown, Ricky Lee Harris, and Joseph Jones appeal from judgments entered after the trial court convicted them of two counts of second degree robbery (Pen. Code, 211), second degree burglary ( 459), assault with a firearm ( 245, subd. (a)(2)), assault with a semiautomatic firearm ( 245, subd. (b)), and three counts of false imprisonment by violence ( 236) with firearm enhancements ( 12022.53, subd. (b); 12022.5, subd. (a)); 12022, subd. (a)(1)). The trial court also convicted Brown of felon in possession of a firearm ( 12021, subd. (a)(1)), and found that he was a second striker under the Three Strikes Law ( 667, subds. (b)(i); 1170.12, subds. (a)-(d)) and had suffered two prior prison terms within the meaning of section 667.5, subdivision (b). Appellants cite numerous sentencing errors, many of which are clerical and appear in the July 19, 2006 minute order and abstracts of judgment. We modify the sentences and affirm the judgments as modified. ( 1260; People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may correct clerical errors].)

A jury convicted Herbert Johnson of eight counts of rape and one count of sexual penetration by a foreign object and found true the special allegation he had committed the offenses during the course of a burglary. The trial court sentenced Johnson to an aggregate state prison term of 89 years to life. On appeal Johnson contends the evidence is insufficient to support his convictions on three of the rape counts. Johnson also contends the trial courts imposition of a sentence based in part on its own factual findings concerning aggravating circumstances violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Court affirm.

Lisa Jerriann Romo appeals from the judgments entered in two cases. In 2004, case number F355791 appellant pleaded guilty to forgery. (Pen. Code, 470, subd. (d).) The imposition of sentence was suspended, and she was placed on probation. In 2005, case number F376707, appellant pleaded no contest to two counts of second degree burglary ( 459, 460) and two counts of forgery. ( 470, subd. (d).) She admitted a prior prison term within the meaning of section 667.5, subdivision (b). At the same time that appellant pleaded no contest in F376707, she admitted a violation of her probation in F355791.
Appellant contends that CRC staff erroneously excluded her from the Civil Addict Program.[2] In addition, she contends that in F376707 the trial court erroneously required her to pay restitution to victims in dismissed counts. Court affirm.