CA Unpub Decisions

In August 2005, appellant Gloria Guerrero, pursuant to a plea agreement, pled no contest to making a criminal threat (Pen. Code, 422) and being under the influence of methamphetamine while personally possessing a firearm (Health & Saf. Code, 11550, subd. (e)). In October 2005, the court placed appellant on three years probation with various terms and conditions, including that she serve 365 days in county jail with one day credit for time served. In March 2006, appellant admitted she committed a violation of probation, and the court reinstated appellant on probation. In April 2006, appellant moved to withdraw her plea, and the court denied the motion. The instant appeal followed.
Appellant did not request, and the trial court did not issue, a certificate of probable cause (Pen. Code, 1237.5). Following independent review of the record, Court have concluded that no reasonably arguable legal or factual issues exist.
The judgment is affirmed.

Appellant, Mark Wilson, doing business as Marks Express Lube, filed an action against his landlord, respondents, J.G. Bailey Corporation and James G. Bailey, Sr., alleging that respondents were estopped from refusing to renew Wilsons lease. Following a bench trial, the court ruled in respondents favor. The court found that Wilson had failed to establish, by a preponderance of the evidence, both that respondents made a clear, unambiguous and unconditional promise to renew Wilsons lease and that Wilson reasonably and foreseeably relied on this promise to his detriment.
Wilson contends the evidence is insufficient to support the trial courts decision. Wilson argues that he reasonably relied on respondents promise that it would be business as usual with respect to renewing the lease and suffered detriment in that he did not begin the process of moving his business to a new location. Accordingly, Wilson asserts, the trial court should have applied promissory estoppel. As discussed below, the trial courts findings are supported by the record. Thus, the judgment affirmed.

Appellant Jeremy Atkinson was injured in a multi-vehicle accident while in the course and scope of his employment. The responsible party was an uninsured motorist. Atkinson applied for and received workers compensation benefits from his employers carrier, and entered into a compromise and release as to all future benefits in exchange for a lump sum payment. Thereafter, Atkinson filed a claim for future medical expenses pursuant to the uninsured motorist provisions of his employers business auto insurance policy. Respondent AmCom Insurance, Inc., the representative of his employers insurance company, filed the instant action for declaratory relief that Atkinson was barred from filing a claim under the uninsured motorist provisions based upon policy exclusions and the release of future workers compensation benefits. The trial court agreed with AmComs argument and found Atkinsons insurance claim was barred. Atkinson appeals and argues he could pursue a claim for future medical benefits under his employers uninsured motorist coverage, pursuant to the provisions of Insurance Code section 11580.2. Court affirm.

Appellant Dwight Tamplin, Jr., was convicted after jury trial of being a felon in possession of a handgun and a street gang enhancement was found true. (Pen. Code, 12021, subd. (a)(1), 186.22, subd. (b)(1).)[1] In a subsequent bifurcated proceeding, four prior strikes were found true. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Appellant was sentenced to an aggregate term of 45 years to life imprisonment.
Appellant argues that the trial court abused its discretion by refusing to bifurcate trial of the street gang enhancement and contends that the evidence is insufficient to support this enhancement. Neither of these arguments is persuasive. Appellant also challenges the legality of his sentence. The People concede that the sentence imposed by the court is unauthorized. We have concluded that remand for exercise of judicial discretion and resentencing is necessary. Accordingly, Court affirm the judgment of conviction, vacate the sentence and remand for resentencing.

A jury convicted appellant Jose Richard Reyes of second degree murder and petty theft. He contends the trial court erred in denying his mistrial motion and his motion to discharge his counsel. Court affirm the judgment.

Defendant Conroy James Hayes was convicted of the first degree murder of his girlfriend. He was also convicted of possession of cocaine base for sale. In addition, firearm and prior prison term enhancements were found true. He appeals, raising numerous issues. Except to agree with both parties that the prior prison term enhancements, already imposed on the first count, were improperly imposed on the second count, Court affirm the judgment.

This is an appeal from judgment after a jury found defendant Ralph Gomez guilty of violating Penal Code section 1320.5, willful failure to appear in order to evade the process of the court. Sentenced to the middle term of two years for this offense and an additional two years on admitted prior prison term enhancements, defendant appeals.
Court conclude any instructional error was harmless, the court did not abuse its discretion in denying defendants oral motion for continuance on the day of trial, and denial of defendants motion to disqualify under Code of Civil Procedure section 170.6 is not cognizable on appeal. Accordingly, Court affirm the judgment.

This appeal challenges the trial courts interpretation of an agreement entered into between appellant, the Fresno County Superintendent of Schools, sued as the Fresno County Office of Education, and respondent, the Schools Alliance for Workers Compensation Excess II. Respondent is a self-funded Joint Powers Authority (JPA) that was formed to provide excess workers compensation insurance to its members. These members, public education agencies, make annual contributions to a risk pool to enable respondent to pay and handle all workers compensation excess claims against members. Under the Joint Exercise of Powers Agreement and the accompanying bylaws (Agreement), respondent has the power to assess members their pro rata share of necessary additional contributions.
After appellant withdrew as a member, respondent declared deficiency assessments for certain years in which appellant was a member. The invoices sent to appellant for these assessments went unpaid. Thereafter, respondent filed the underlying breach of contract action against appellant.
As discussed below, although the Agreement states that a reserve account shall be established for each withdrawing member, the establishment and exhaustion of such a reserve account is not a condition precedent to the obligation of a former member to pay an assessment. Further, the statute of limitations ran separately for each assessment invoice. Thus, the action is not time barred. Accordingly, the judgment affirmed.

On October 11, 2005, a first amended information was filed in the Superior Court of Fresno County charging appellant Albert Sanchez with the following offenses committed against V1: counts I and VI, forcible rape (Pen. Code,[1] 261, subd. (a)(2)); counts II and VII, attempted forcible rape ( 664/261, subd. (a)(2)); counts III and VIII, forcible sexual penetration ( 289, subd. (a)(1)); counts IV and IX, sexual penetration of a child under the age of 16 years ( 289, subd. (i)); and counts V and X, commission of a lewd or lascivious act on a child ( 288, subd. (c)(1)).

Appellant contends the court imposed two consecutive indeterminate terms based on the erroneous belief that it lacked discretion to impose concurrent terms. Respondent concedes the error, but argues the matter need not be remanded because it is not reasonably probable the court would have imposed concurrent terms. Appellant contends, and respondent concedes, the abstract of judgment must be corrected as to the determinate midterms imposed for counts V and X.
The matter is remanded for the court to exercise its discretion to impose either a consecutive or concurrent indeterminate term for count XIII, and to correct the sentence and abstract of judgment for counts V and X. In all other respects, the judgment is affirmed.

Appellant David Michael Reinhardt appeals his convictions for assault with a firearm upon peace officers. Appellant contends that the trial court erred by failing to instruct, sua sponte, the jury that an initial aggressor can claim self defense even when he does not withdraw where the police escalated the encounter. He also contends that he received ineffective assistance of counsel when trial counsel failed to request this instruction. Appellant further contends that there was ineffective assistance of counsel when trial counsel failed to seek a jury instruction on antecedent threats. court affirm the judgment in its entirety.

A jury convicted appellant Tyrone Augusta Mitchell of attempted murder (Pen. Code, 187, 664;[1]count 1), assault with a semiautomatic weapon ( 245, subd. (b); count 2), being a felon in possession of a firearm ( 12021, subd. (a)(1); count 3), being a violent felon in possession of a firearm ( 12021.1, subd. (a); count 4), carrying a loaded firearm while actively participating in a criminal street gang( 12031, subd. (a)(2)(C); count 5) and possession of stolen property ( 496, subd. (a); count 6). The jury also found true various enhancement allegations, including that in committing the count 1 offense appellant discharged a firearm ( 12022.53, subd. (c)) and, in so doing, proximately caused great bodily injury ( 12022.53, subd. (d)). In a separate proceeding, appellant admitted allegations that he had suffered a felony conviction in 1997 that qualified as both a strike[2]and a serious felony conviction ( 667, subd. (a)), and that he served a prison term for that conviction within the meaning of section 667.5, subdivision (b). The jury acquitted appellant of possession of cocaine for purposes of sale (Health & Saf. Code, 11351.5, subd. (a)(1)), charged in count 7.
On appeal, appellant contends: (1) the evidence was insufficient to support appellants conviction of carrying a loaded firearm while actively participating in a criminal street gang, as charged in count 5; (2) the court erroneously imposed sentence on count 7; and (3) appellants conviction of the count 3 offense cannot stand because that offense is a necessarily lesser included offense of the count 4 offense. Court reverse appellants convictions on counts 3 and 5, vacate the sentence imposed on count 7 and in all other respects, affirm.

Defendant Bruce Edward Stiles appeals his conviction of three arson-related charges with associated enhancements. On appeal, defendant contends: (1) the evidence was insufficient to support his conviction on two counts; (2) the one-year concurrent enhancement for one prison prior must be stricken because the underlying prison term was served concurrently with the term for another prison prior; (3) the trial courts finding of identity in defendants prior convictions deprived defendant of his right to trial by jury on the prior convictions; and (4) his sentence for attempted arson should be reduced to the middle term because the trial court imposed the aggravated term on the basis of facts not found by the jury. Court agree with defendants contention that the concurrent enhancement for a prison prior must be stricken. Court find no other errors.

In this appeal, defendant Michael Theodore Young challenges the condition of his probation that he keep his probation officer informed of any pets and give 24 hours written notice of any changes in pets. Court agree and Court order that probation term stricken. This is without prejudice, however, to modification of the terms of probation to include a term narrowly tailored to address the appropriate concern.

Joshua Marshall (defendant) was charged with and convicted of second degree robbery, in violation of Penal Code section 211. The court sentenced defendant to two years in state prison.
Defendant appeals his conviction, contending (1) the evidence was insufficient to support his conviction for robbery, and (2) the special instruction defining the term force violated due process by reducing the prosecutions burden of proof. Court find no error, and Court affirm.