CA Unpub Decisions

Plaintiff Edward Herman supplied equipment and materials to George C. Foss Company (Foss), an electrical subcontractor, on three large construction projects. Although the general contractor reimbursed Foss for expenditures, Foss failed to fully reimburse Herman for the equipment and materials he supplied on the projects. Defendants Elwyn L. Simard, Tad Simard, Steve Simard, and Tony Velez (collectively defendants) were officers and shareholders of Foss. After Foss ceased doing business, Herman filed suit against Foss for breach of contract, and against Foss and defendants for conversion and violation of the Unfair Practices Act. After the court entered a default judgment against Foss, defendants moved for summary judgment. The trial court granted the motion and denied Hermans motion to amend his complaint. Herman appeals, arguing undisputed facts reveal defendants converted Hermans property and violated the Unfair Practices Act. Herman also challenges the trial courts denial of his motion to amend his complaint. Court affirm the judgment.

After deliberating for 35 minutes, a jury convicted defendant Russell Ernest Peterson of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)); possession of cocaine, methamphetamine, and marijuana for sale (Health & Saf. Code, 11351, 11378, 11359); and possession of ammunition by a felon (Pen. Code, 12316, subd. (b)(1)). The jury also found true the allegation that he was personally armed with a firearm during the commission of the drug offenses. (Pen. Code, 12022, subd. (a)(1), 12022, subd. (c).) On appeal, he claims instructional error and insufficiency of the evidence. Court affirm.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Having reviewed the record as required by Wende, Court affirm the judgment.

This is an appeal after a limited remand for resentencing was ordered following the first appeal. In January 2003, Brandon Armitage was charged in case number SCD172181 with of one count of residential burglary (Pen. Code,[1] 459, 460; count 1), two counts of possession of a firearm by a felon ( 12021, subd. (a)(1); counts 2 & 4), one count of discharging a firearm in grossly negligent manner ( 246.3; count 3), one
count of unlawfully owning or possessing ammunition for firearm ( 12316, subd. (b)(1); count 5), and one count of aggravated trespass of occupied dwelling place ( 602.5, subd. (b); count 6). In September 2003, Armitage was charged in case number SCD177470 with one count of residential burglary ( 459, 460; count 1), and one count of failure to appear on own recognizance ( 1320.5; count 2). The trial court consolidated the two cases against Armitage for trial, and a jury subsequently convicted Armitage of both residential burglary charges, possession of a firearm by a felon, illegal possession of ammunition and firearm, and failure to appear while on bail. In a bifurcated proceeding, the court found Armitage had suffered two prior strikes ( 667, subds. (b)-(i), 1170.12); two prior serious felony convictions under section 667, subdivision (a)(1), and a prison prior conviction under section 667.5, subdivision (b). The court sentenced Armitage to an indeterminate prison term of 25 years to life on each count to run concurrently. On appeal, this court reversed the residential burglary conviction from January 2003 for insufficient evidence, affirmed the remaining convictions, and remanded the case to the trial court for resentencing in compliance with the three strikes law.

A jury convicted defendant of one count of the sale of cocaine base (Health & Saf. Code, 11352, subd. (a)) and one count of the sale of methamphetamine (Health & Saf. Code, 11379, subd. (a)). In a bifurcated court trial, the court found true allegations that defendant had four prior convictions under Penal Code section 667.5, subdivision (b). Defendant was sentenced to state prison for an aggravated term of five years on count 1 and the middle term of three years on count 2. The sentence on count 2 was to be served concurrently with the sentence on count 1. The court imposed a consecutive one-year term for each of the four prior convictions, resulting in an aggregate sentence of nine years.
Defendant makes the following contentions on appeal: (1) he was denied his right to a fair trial when a police officer testified before the jury that defendant was on parole; (2) the court erred by using defendants prior record to both aggravate the principle term and impose the four enhancement terms; (3) if defendant waived his claim of error as to the dual use of his prior convictions, then trial counsel rendered ineffective assistance; and (4) by relying upon defendants parole violations in imposing the aggravated term on count 1, the aggravated sentence violates the Sixth Amendment under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).

After hearing, the trial court issued an order modifying prior child custody and support orders as requested by Richard Frost (father). The trial court also awarded father attorney fees of $6,080. Taune Gail Mays (mother) appeals, contending that the trial court (1) should have issued a statement of decision; (2) improperly delegated fact finding authority to fathers counsel; (3) failed to tier the award of child support; and (4) improperly awarded father his attorney fees. The judgment is affirmed.

On January 30, 2007, pursuant to section 859a, defendant, represented by counsel, pled guilty in case number SWF016517 to counts 1, 2, 3, and 5 and admitted the special allegation charged pursuant to section 12022.6 (a)(1). Defendant also pled guilty in case number RIF133367. Thereafter, and in accordance with the negotiated disposition, defendant was committed to state prison for 32 months in case number SWF016517 and defendant was committed to state prison for 16 months in case number RIF133367 and the latter case was ordered to run concurrent to the former case. Defendant was awarded the appropriate custody credits and count four in case number SWF016517 was dismissed on motion of the district attorney and in the interests of justice pursuant to section 1385.
The judgment is affirmed.

Petitioner J.J. (Mother) is the mother of three-year old M.J. Mother filed this writ petition pursuant to California Rules of Court, rule 8.452 challenging an order setting a Welfare and Institutions Code section 366.26[1]permanency planning hearing as to the child. Mother contends that the juvenile court erred in finding that she had been provided with reasonable reunification services. For the reasons provided below, Court reject Mothers challenge and deny her petition.

Gloria Verduga appeals from the trial courts decision denying her leave to amend her complaint. For the following reasons, Court affirm.

Appellant, Robert Kirk Hammond, was charged in a criminal complaint with conspiracy (Pen. Code, 182, subdivision (a)(1))[1]to sell a controlled substance (Health & Saf. Code, 11379, subd. (a), count one), and sale of a controlled substance (Health & Saf. Code, 11379, subd. (a), count two). Count one alleged four overt acts in furtherance of the conspiracy. The complaint was deemed an information on April 24, 2006. On June 8, 2006, a jury found Hammond guilty of both counts. Hammond admitted violating his probation from a previous conviction for forgery.
The trial court sentenced Hammond to the midterm of two years on count two, stayed sentence on count one pursuant to section 654, and imposed a consecutive term of eight months for Hammonds earlier forgery conviction. The court imposed a restitution fine and granted Hammond applicable custody credits. On appeal, Hammond contends his conviction for conspiracy must be reversed because there was insufficient evidence he entered into an agreement to sell methamphetamine and the jury instructions reduced the prosecutions burden of proof.

In a juvenile wardship petition (Welf. & Inst. Code, 602) filed August 29, 2006,[1]it was alleged that appellant Joshua R., a minor, committed a violation of Penal Code section 246 (discharging a firearm at an occupied motor vehicle), and that in committing that offense, he acted for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (Pen. Code, 186.22, subd. (b)(1)). At the jurisdiction hearing on October 10, the juvenile court found the allegations true, and at the disposition hearing on November 14, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice and declared appellants maximum term of physical confinement (Welf. & Inst. Code, 731, subd. (b)) to be 12 years. On appeal, appellants sole contention is that the evidence was insufficient to support his adjudication of the instant offense. Court affirm.

Edgar Nava appeals from a judgment of 27 years to life. He contends that the trial court erred in instructing the jury. For the following reasons, Court affirm the judgment.

Jo Ann S. appeals from a February 2007 order selecting legal guardianship as a permanent plan for her son, C.S. (Welf. & Inst. Code, 366.26, subds. (c)(4)(A) & (d).)[1] C.S. has been a dependent child since 2001. He suffers from Aspergers Syndrome and, though high-functioning, his behaviors were once unpredictable and aggressive. Meanwhile, appellant suffered from depression and anxiety and could not manage her son. In 2003, the juvenile court selected long-term foster care as a permanent plan for C.S. As of 2006, appellant had ameliorated the conditions leading to C.S.s dependency and wished to resume custody. However, C.S., by then a teenager, had bonded with his foster parents and wanted them to become his legal guardians. This led to contested proceedings in August 2006, following which the juvenile court, first, denied appellants petition to regain custody ( 388) and then, set a section 366.26 hearing to consider legal guardianship as a permanent plan for C.S. We affirmed the courts orders in an unpublished opinion, Jo Ann S. v. Superior Court (Nov. 20, 2006,F051132 [nonpub. opn.]). Having reviewed appellants letter brief and the record herein, Court conclude appellant raises no arguable issue regarding the courts decision.

John Stewart appeals from the judgment revoking his probation and reinstating his previously imposed but suspended two-year prison term. Stewart contends that the court erred by not restoring good time custody credits that he had previously waived pursuant to People v. Johnson (1978) 82 Cal.App.3d 183. The judgment is affirmed.