CA Unpub Decisions

Defendant and appellant, Martin Ortiz, appeals from the judgment entered following his conviction, by jury trial, for two counts each of attempted murder and assault with a firearm, with firearm use enhancements (Pen. Code, 187, 245, 12022.5, 12022.53). Sentenced to state prison for 29 years, Ortiz claims there was trial error.
The judgment is affirmed.

David Christopher Austin, also known as David Reynolds, David Roberson and Kevin Robertson, appeals from the judgments entered upon his conviction of possession of cocaine (Health & Saf. Code, 11350, subd. (a)), in case No. MA028555, upon his plea of guilty and admission of a 1986 prior felony conviction for robbery (Pen. Code, 211) within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and upon his conviction of residential burglary ( 459), in case No. MA031474, upon his plea of no contest and admission of a 1987 prior felony conviction of first degree burglary within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i), 667, subdivision (a)(1) and one prior prison term within the meaning of section 667.5, subdivision (b). A certificate of probable cause was issued on June 27, 2006. The judgment is affirmed.

Joshua W. was declared a ward of the juvenile court and ordered home on probation after the court sustained a petition alleging he had committed a robbery in which a principal was armed with a handgun. (Welf. & Inst. Code, 602; Pen. Code, 211, 12022, subd. (a)(1).) On appeal Joshua W. contends there is insufficient evidence he aided and abetted the commission of the robbery. Court affirm.

Michael Wandick appeals from the judgment entered following his conviction by a jury on one count of assault with a firearm (Pen. Code, 245, subd. (a)(2))[1](count 1), one count of making a criminal threat ( 422) (count 2), and one count of possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 3), with special findings by the jury he had personally used a firearm in the commission of the offenses charged in counts one and two ( 12022.5). The trial court sentenced Wandick to an aggregate state prison term of eight years: On count 1 the court imposed an upper term of four years plus the middle term of four years for the firearm-use enhancement. On count 2 the court imposed the middle term of two years plus the middle term of four years for the firearm-use enhancement to run concurrently with the sentence on count 1. On count 3 the court imposed and stayed pursuant to section 654 the middle term of two years.
In sum, Wandicks criminal history, properly identified by the trial court as an aggravating factor, rendered him eligible for the upper term sentence imposed. Wandicks federal constitutional right to a jury trial was not violated by the trial courts sentencing decision. The judgment is affirmed.

Luis Miguel Padilla appeals from the judgment entered following an order revoking probation. He previously, on February 1, 2005, pled no contest to committing a lewd act upon a child. (Pen. Code, 288, subd. (a).)[1] Pursuant to his negotiated plea, he was sentenced to eight years in prison, execution of sentence was suspended and he was placed on formal probation for five years. He was ordered to pay a restitution fine in the amount of $200 plus a parole revocation fine in the same amount. Included in the terms of his probation were that he serve 365 days in jail and waive all back time presentence credits. He contends he is entitled to an additional 435 days of custody credits and that the restitution fine and parole revocation fine must be reduced. For reasons stated in the opinion, Court remand the matter to the superior court for a recalculation of credits, and strike the second restitution fine and parole revocation fine imposed.

A modification decision.

V.T. and her son, J.T., appeal from the juvenile courts orders denying V.T.s petition for modification pursuant to Welfare and Institutions Code section 388 and terminating her parental rights ( 366.26). Court reverse and remand the matter for a new section 388 hearing.

Pauline R. (mother) appeals an order of the juvenile court terminating her parental rights with respect to four year old Daniel P. Court reject mothers contentions on appeal and affirm the juvenile courts order.

Based on evidence relating to work orders that had disappeared or had been altered during his employment, a jury found defendant David J. Browning guilty of one count of embezzling from his former employer and the court sentenced him to two years in state prison. On appeal, defendant contends: (1) the trial court erred in admitting irrelevant evidence of 68 missing work orders; (2) his trial counsel was ineffective in failing to object to the evidence of the missing work orders under Evidence Code section 1101 and on due process grounds; (3) his trial counsel was ineffective in failing to request a limiting instruction regarding the evidence of the missing work orders and in failing to argue to the jury that that evidence of the missing work orders was not linked to defendant; and (4) the trial court erred by failing to instruct the jury with CALJIC No. 4.72. Finding no error and no ineffective assistance of counsel, Court affirm the judgment.

Following a contested jurisdictional hearing, Nathaniel M., a minor, was found to have committed battery with serious bodily injury on his grandfather. The minor was declared a ward of the court and ordered to pay restitution in an amount to be determined. On January 26, 2006, after a contested restitution hearing, the court ordered the minor to pay restitution of $33,452.35, the amount of the grandfathers medical expenses. On appeal, the minor contends the court abused its discretion when it failed to find, as was within its power, compelling and extraordinary reasons that the minor should not have to pay such a large amount of restitution. Court reject the contention.

A jury convicted defendant of second degree murder and found true the allegation he used a deadly weapon. ( 187, subd. (a); 12022, subd. (b)(1).) Defendant pleaded guilty to two prior-prison-term allegations in exchange for a consecutive one year term. The court sentenced defendant to a prison term of 15 years to life, plus two consecutive one year terms.
On appeal, defendant challenges the sufficiency of the evidence for murder. He also makes several claims of error involving evidence related to Elaine Jenkins,[2]defendants fiance and a proposed percipient witness. Elaine died before she could testify. Court deem the evidence sufficient and there was no error. Court affirm.

Following revocation of defendants probation for a 2004 drug possession for sale conviction,[1]the sentencing court imposed the upper term of 5 years in prison. Defendant here contends, inter alia, that the trial court relied on improper factors in imposing an aggravated sentence. We agree that the trial courts reliance on all the factors related to the crime itself were improper; we also conclude that its reliance on the remaining factor was improper because it is not supported by the record. Therefore, Court remand the matter for resentencing.

Plaintiff Aroonrus Leelhasuwan appeals from an order granting terminating sanctions against him and entering judgment on an action to quiet title in favor of defendants Mongkol Leelhasuwan and Barbara Leelhasuwan. Mongkol is plaintiffs nephew. Barbara is Mongkols wife.
The central issue involves defendants efforts to depose plaintiff who lives in Bangkok, Thailand but has a temporary residence in Los Angeles. Court conclude the trial court did not abuse its discretion by granting terminating sanctions against plaintiff and Court affirm the judgment.

Plaintiffs and appellants Diana Sanchez Navarro, Fernando Torres, Josefina Torres-Martinez, and Maria Aldana (plaintiffs) appeal an order of dismissal of their complaint against defendants and respondents Mark Arriaza, Susan Otero, Eugene John Ruggiero, and Top West End, Inc. (defendants). Plaintiffs action arises from a serious, multi-vehicle automobile accident in which three vehicles collided and plaintiffs sustained severe injuries. Plaintiffs contend the trial court erred in dismissing their complaint and denying their motions to vacate or set aside the dismissal. Plaintiffs argue the trial court did not have authority to dismiss their action under Code of Civil Procedure section 583.420 for delay in prosecution because the action had not been pending for at least two years when it was dismissed. Also, under section 575.2, plaintiffs complaint could not be dismissed due to their attorney failing to attend court proceedings. In addition, plaintiffs argue the trial court erred in denying their section 473 motions based on the six-month limitation period since their motion was timely filed. Court conclude that under section 583.420, subdivision (a)(1)(B) and 575.2, subdivision (b), the trial court did not have authority to dismiss plaintiffs complaint. In light of this determination, Court need not address the trial courts ruling on plaintiffs section 473 motions. The order of dismissal is reversed.