CA Unpub Decisions

Defendant Tommy Ryan Creller pleaded no contest to numerous charges arising from two violent confrontations with his girlfriend in May 1999 (case No. 62-8604) and July 1999 (case No. 62-9657). He also admitted the additional enhancements that he had committed these offenses while released from custody and had personally inflicted great bodily injury during the July incident. Following his pleas and admissions, the court found unusual circumstances and placed defendant on probation. Over the course of the next two years, defendant admitted four probation violations. Upon his admission of the fourth violation of probation, probation was revoked and defendant was sentenced to an aggregate term of 10 years four months in prison. He appeals the imposition of the upper term on the corporal injury to a cohabitant charge and on the great bodily injury enhancement in case No. 62 9657. Because there were errors in the sentencing procedure, Court remand for resentencing.

Sanders Inc. Architecture/Engineering (Sanders) filed a complaint alleging one count of breach of contract against the Trustees of the California State University (CSU). In its complaint, Sanders alleged that the parties entered into a contract (Agreement) for Sanders to provide services related to the design and construction of a telecommunications infrastructure upgrade on the campus of San Diego State University (Agreement). Sanders alleged that CSU breached the Agreement in various ways, including failing to provide Sanders with documents that accurately reflected the condition and configuration of the existing voice, data and video systems on the campus and failing to pay Sanders for the work Sanders performed pursuant to the Agreement.
On appeal from the judgment, Sanders claims that the trial court erred in granting CSU's motion for summary judgment. Court conclude that CSU has established as a matter of law that it did not breach the Agreement. Accordingly, the trial court did not err in granting summary judgment in favor of CSU.

jury convicted defendant of four counts of selling cocaine base (Health & Saf. Code, 11352, subd. (a)). He was sentenced to prison for five years, four months and appeals, claiming his Wheeler/Batson motion was erroneously denied and sentencing error occurred. Court reject his contentions and affirm.

After a jury trial, defendant was found guilty of second degree robbery in violation of Penal Code section 211 with an enhancement under Penal Code sections 12022.53, subdivision (b), and 1192.7 subdivision (c)(8), for using a firearm in the commission of the robbery. Defendant was sentenced to 12 years in state prison.
On appeal, defendant contends his conviction for using a firearm during a robbery must be reversed because his Sixth and Fourteenth Amendment rights were violated when he was denied the opportunity to present his defense that the gun used in the robbery was a BB gun. Defendant contends that the cumulative effect of the following errors led to a violation of his Sixth and Fourteenth Amendment rights: (1) he was precluded from presenting expert testimony and photographs; (2) his examination of an expert witness was improperly limited; and (3) the trial court made an improper comment regarding the victims testimony. Defendant also contends that any errors should be reviewed under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. Court have found no errors in the actions of the trial court. Therefore, Court find no violation of defendants Sixth and Fourteenth Amendment rights. The judgment is affirmed.

Defendant Salvador Tovar Hernandez challenges his prison sentence as a violation of his Sixth and Fourteenth Amendment rights to a jury trial as interpreted by the United States Supreme Courts recent decision in Cunningham v. California (2007)U.S. [127 S.Ct. 856], (Cunningham). Court find no Cunningham violation and affirm the sentence.

Jonathan R. is the presumed father of eight-year-old Anthony and two-year-old J. In 2005, the maternal grandparents, who previously were appointed to serve as legal guardians of Anthony, were appointed as legal guardians of J. as well, subject to juvenile court supervision under a permanent plan of guardianship. However, in 2007, the legal guardians filed a petition pursuant to Welfare and Institutions Code,[1] section 388 to modify the prior permanent plan, and to have the matter referred for a new permanency plan hearing pursuant to section 366.26, at which parental rights could be terminated. The hearing on the section 388 petition was set in conjunction with a pending semi annual review of Anthonys matter ( 364), and a post permanent plan review hearing ( 366.3) as to J. Father requested a contested hearing on all three matters; his request was denied. He challenges the order denying the request for a contested hearing by way of the instant writ petition. Court deny the petition.

After the trial court denied Matthew Gordon Lamonts motion to suppress, he pleaded no contest to possessing a destructive device or explosive on a public street, possessing a destructive device or explosive with the intent to injure or destroy property, transporting a destructive device, and possessing materials with the intent to make a destructive device or explosive. The court sentenced him to three years in state prison. On appeal, Lamont challenged the trial courts denial of his suppression motion. Lamont argued that as a passenger in the car, he was seized when the police officer illegally stopped the car in which he was riding in violation of his Fourth Amendment rights. In this courts prior published opinion People v. Lamont (2004)
125 Cal.App.4th 404 (Lamont I), Court agreed and reversed the judgment.

A modification decision.

Plaintiff sought a declaration that defendants option to purchase some real property had terminated. The parties written agreement provided the option would terminate 90 days after plaintiff obtained a letter stating no further action was required to remediate environmental conditions on the Property as set forth in certain documents. Plaintiff contended it triggered the 90-day expiration period by obtaining a letter addressing the only significant environmental condition set forth in those documents: the possible migration of groundwater contamination from an adjacent property. The judgment is reversed, and the matter is remanded to the trial court with directions to enter a new order denying defendants motion for summary judgment.

Raymundo Velasquez appeals the judgment sending him to prison for 10 years after his court trial on two counts of continuous sexual abuse of a child under Penal Code section 288.5, subdivision (a). Because Court find that the evidence against Velasquez was properly admitted, that objections to such evidence were waived, and that Velasquez was not denied effective assistance of counsel, Court affirm.

Cuong M. Bui and Kim H. Phan (collectively, Cuong) appeal from a judgment in favor of Le Dung Bui (Le). The judgment awarded Le a 60 percent interest in a residence owned by Cuong, provided the parties mother would be allowed to live there for life, and ordered the residence sold thereafter and the proceeds divided according to the parties interests. Cuong argues there were numerous errors. Court cannot find any, and so affirm.

Abel Castaneda appeals from his conviction on charges of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))[1], which was found to be a hate crime committed wholly or partially because of the victims race or ethnicity ( 422.55 and 422.75, subd. (a)); and of making a criminal threat ( 422). Castaneda admitted he had three prior felony convictions within the meaning of section 667.5, subdivision (b). He was sentenced to the upper term of four years on the assault charge, plus a three year enhancement for the hate crime. He was also sentenced to the midterm of two years, concurrent, for the criminal threat, and his sentence was enhanced an additional year for each of the three priors.
Finally, although Castaneda correctly predicted that our Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238, would be disapproved by the United States Supreme Court in Cunningham v. California (2007) U.S. [127 S.Ct. 856], we nonetheless conclude the trial court could properly sentence him to the upper term for the assault charge, based upon his history of recidivism. The judgment is affirmed.

Michael Robert McIntyre was convicted by a jury on August 14, 2006 of one count of grand theft, one count of misdemeanor theft from a pawnbroker, and one count of vandalism causing $10,000 or more in damage. (Pen. Code, 487, subd. (a), 484.1, subd. (a), 594, subds. (a), (b)(1).) McIntyre challenges the sufficiency of the evidence to support the jurys verdict with respect to the grand theft conviction, alleging the prosecution failed to prove beyond a reasonable doubt the value of the stolen goods was equal to or greater than the statutorily required minimum amount of $400. ( 487, subd. (a).) The judgment is affirmed.

When an injured employee prosecutes an action against a third party tortfeasor, Labor Code section 3856 authorizes the employee to recover his or her litigation expenses and attorney fees from the judgment before the employer may exert a lien on the judgment to recover the amount of workers compensation benefits expended on the employees behalf. In this case, the third party tortfeasor was sued by the injured employee and his employer. The employer settled its action and assigned its lien to the third party tortfeasor. The jurys verdict was less than the amount of the employers lien. On appeal, the third party tortfeasor contends the trial court erred by applying section 3856 to award the employee his costs and attorney fees from the judgment before offsetting the judgment with the lien because the employee did not benefit from the judgment and because the employer actively participated in the litigation. Court find no error and affirm the judgment.