CA Unpub Decisions

After pleading guilty to a charge of makingcriminal threats, defendant was sentenced to five years in prison and placed on probation. Following his failure to appear at a court hearing scheduled to supervise his performance on probation, defendant was arrested on a bench warrant. At a subsequent hearing, he contended that he had received no written notice of the violations of probation alleged against him. The court directed that he be given a copy of the supplemental probation report prepared in connection with the hearing, which the court then deemed a motion to revoke probation. Finding the report to constitute adequate written notice, Court affirm.

Defendant Daniel Alva Reeves pleaded no contest to one count of battery with serious bodily injury. (Pen. Code, 243, subd. (d).)[1] The trial court sentenced him to the upper term of four years. Defendant argues that the imposition of the upper term violates Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because the five aggravating factors were neither admitted by defendant nor submitted to a jury. Court disagree because three of the aggravating factors are based on recidivism, and thus fall outside the rule of Cunningham, and those three factors are sufficient to justify the upper term.

Michael Smith appeals from a judgment entered after the trial court found him guilty of failing to register as a sex offender. (Pen. Code, 290, subd. (g)(2).) He contends (1) the court erred when evaluating his competency to stand trial; (2) the court failed to hold a meaningful competency hearing; (3) his conviction was not supported by substantial evidence; and (4) the court abused its discretion when it declined to strike a prior strike finding. Court reject these arguments and affirm.

Defendant Cedric K. appeals after the juvenile court sustained a petition alleging that he committed second degree robbery. Defendant challenges admission of his confession and the juvenile court disposition.
An April 2006 petition under section 602 alleged that defendant, born in February 1989, committed second degree robbery (Pen. Code, 211/212.5, subd. (c)). The juvenile court sustained the petition after a contested jurisdictional hearing, adjudged defendant a ward of the court under Welfare and Institutions Code section 602, and committed him to a county institution (the Boys Ranch) for a period not to exceed nine months. Court affirm.

The mother of infant Savannah T. (Mother) appeals from an order entered at an interim status review hearing continuing in place the juvenile courts previous dispositional order that Savannah be returned to her fathers care on condition that Mother not reside in the same household. We affirmed the underlying dispositional order in an earlier appeal by Mother. Mother contends that: (1) she was denied her asserted due process right to a contested hearing at the interim review proceeding, (2) the order preventing her from returning to the same household with Savannah was not supported by substantial evidence, and (3) respondent Contra Costa County Bureau of Children and Family Services (Bureau) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court affirm the order entered following the review hearing.

Levi Williams, Jr. appeals the dismissal of his disability discrimination and fraud claims following a grant of summary judgment in favor of his former employer, Bax Global Inc., and his former supervisor, Curtis Lindquist (collectively, Bax). The trial court determined that Bax had a legitimate, non-discriminatory reason when it terminated Williamss employment, and there was no evidence it was a pretext. The court also rejected appellants fraud claim because there was no evidence Bax made false promises to appellant that it had no intention to fulfill. There is no triable issue of material fact with regard to either cause of action. Court affirm.

Court issued an order to show cause in this matter in order to determine whether presentence custody credits earned by petitioner Howard Johnson III were properly applied to reduce his prison sentence. Court have found they were not; therefore, Court return the matter to the trial court to correct the judgment.

This is an appeal from an order denying a special motion to strike the plaintiffs complaint pursuant to Code of Civil Procedure section 425.16. Court affirm.

Defendant Ramon D. Trotter appeals his conviction on all counts of a 10 count information arising out of two separate incidents (a freeway shooting and a beating in a parking lot) charging him with one count of murder (Penal Code, 187, subd. (a), 190.2, subd. (a)(21)), three counts of attempted murder ( 187, subd. (a), 664), three counts of shooting at an occupied vehicle ( 246), one count of robbery ( 211), one count of assault with likelihood of producing great bodily injury ( 245, subd. (a)(1)), and one count of battery with serious bodily injury ( 243, subd. (d)). The jury found true special allegations of a special circumstance on count one ( 190.2, subd. (a)(21)), a special allegation of a principals personal firearm discharge causing death or great bodily injury ( 12022.53, subds. (d), (e)(1)), and special allegations of a principals personal firearm discharge on the shooting at an occupied vehicle counts ( 12022.53, subds. (b), (c), (e)(1)). The jury also found true special allegations of personal infliction of great bodily injury on the robbery, assault and battery counts ( 12022.7, subd. (a)) and found true the gang allegations on all counts ( 186.22, subd. (b)(1)(a)). The trial court sentenced defendant to an aggregate term of 126 years.
On appeal, defendant contends that (1) the prosecutions failure to timely disclose exculpatory evidence and the trial courts exclusion of such evidence at trial requires reversal; (2) the trial court erred in failing to sever counts one through seven (relating to the first incident) from counts eight through 10 (relating to the second incident); (3) there was insufficient evidence to sustain the great bodily injury enhancements on counts eight and nine; (4) the court erred in instructing pursuant to CALJIC No. 17.20, requiring reversal of the great bodily injury enhancements; (5) the imposition of a 25-year-to-life sentence for the vicarious personal use of a firearm, based upon the finding the crime was committed for the benefit of a criminal street gang, violated defendants equal protection and due process rights; (6) the imposition of consecutive sentences on the assault counts (counts eight and nine) violated section 654; (7) all 10 counts were one, indivisible course of conduct and therefore subject to only one criminal street gang enhancement per incident; (8) the drive by special circumstance is unconstitutional; (9) the imposition of a $10,000 parole revocation fine was unauthorized and must be stricken, and (10) the imposition of consecutive sentences violated Blakely v. Washington (2004) 542 U.S. 296. The People request Court correct the abstract of judgment to reflect the 657 days of presentence custody credits awarded, and impose an additional court security fee for each of the counts on which defendant was found guilty.

In this appeal, plaintiff Jeffrey Huhs (plaintiff) challenges the summary judgment granted to defendants NRG El Segundo Operations, Inc. (El Segundo), NRG Energy, Inc. (Energy), NRG Western Affiliate Services, Inc. (Western Affiliate Services, collectively NRG), Audun Aaberg (Aaberg), Robert Rea (Rea), and Keith Goodner (Goodner, and collectively with the corporate defendants, defendants). Additionally, plaintiff challenges the trial courts denial of his request for a continuance on the hearing of the summary judgment motions.
Plaintiff also challenges the trial courts denial of his request for reconsideration, denial of his request to treat the motion for reconsideration as a motion for new trial after the court entered a judgment while the motion for reconsideration was pending, and imposition of sanctions in connection with the denial of his request for reconsideration. Plaintiff further challenges the denial his motion for new trial which was denied by operation of law when the court set a hearing on the motion past the statutory time on which the court had jurisdiction to rule on the motion. Lastly, plaintiff challenges the courts award of attorneys fees to defendants Rea and Goodner.
Regarding plaintiffs challenge to the judgment itself, Court find that the papers submitted by the parties in support of, and in opposition to, the various summary judgment motions filed by defendants support the trial courts decision that there are no triable issues of material fact on the first six of plaintiffs seven causes of action. However, the trial courts minute order on the summary judgment motions did not address plaintiffs seventh causes of action and thus it remains outstanding. Summary judgment, therefore, should not have been ordered. Nevertheless, because the defendants respective motions requested summary adjudication of issues as an alternative to summary judgment, the court should have entered an order granting adjudication in favor of the defendants on the first six causes of action. We will remand the matter with directions to the trial court to consider and rule upon the defendants motion with respect to the seventh cause of action and, depending on that ruling, to conduct such further proceedings as may be appropriate.
There was no error or abuse of discretion in the denial of plaintiffs request for a continuance of the hearing on the summary judgment motions. However the denial of his motion for reconsideration and the award of sanctions cannot stand given that the court had no jurisdiction to even consider the motion because of the intervening judgment. As for plaintiffs challenge to the denial by operation of law of his motion for new trial, that result occurred because he did not monitor the resetting of the hearing on the motion. Lastly, we find no cause to reverse the courts award of attorneys fees to defendants Rea and Goodner. Court remand the case to the trial court for further proceedings on the request for summary adjudication of issues on the seventh cause of action.

Appellant Jesus Enrique Coronado appeals from the judgment entered following his conviction by jury on count 1 second degree murder (Pen. Code, 187) with findings that a principal personally used a firearm (Pen. Code, 12022.53, subds. (b)
& (e)(1)), a principal personally and intentionally discharged a firearm (Pen. Code, 12022.53, subds. (c) & (e)(1)), a principal personally and intentionally discharged a firearm causing death (Pen. Code, 12022.53, subds. (d) & (e)(1)), and the offense was committed for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(A)), and with an admission that he suffered a prior felony conviction (Pen. Code, 667, subd. (d)). The court sentenced him to prison for 55 years to life. Appellant contends various trial errors occurred. Court affirm the judgment.

An undercover vice officer arrested Hall for prostitution on April 14, 2005. An information filed on May 25, 2005 charged Hall in count 1 with felony prostitution with a prior conviction for prostitution after having tested positive for the HIV virus (Pen. Code, 647, subd. (b), 647f, 1202.6 (felony prostitution)). In count 2 the information charged Hall with unlawful sex while infected with the HIV virus (Health & Saf. Code, 120291, subd. (a). As to both counts the information specially alleged Hall had previously served three separate terms for felony (prostitution). (Pen. Code, 667.5, subd. (b).)
As a result of this case (LASC Case no. TA078757), Hall also faced allegations she violated the terms of her probation in Los Angeles Superior Court Case no. BA264250, in which she had been convicted of possessing a controlled substance (Health & Saf. Code, 11350) and had received formal probation.
Panchita Hall appeals from the judgment entered following a court trial in which she was convicted of felony prostitution. Court affirm.

Darius R. was declared a ward of the juvenile court after the court sustained a petition alleging he had committed second degree robbery. On appeal Darius R. contends one of his probation conditions should be modified to conform to the oral pronouncement of disposition and another is unconstitutional. Court affirm the order as modified.

In these appeals, consolidated for the purposes of oral argument and decision, the parties appeal from two orders awarding attorney fees. In the first appeal (Case No. B192251), plaintiffs Michael S. Ovitz and six business entities (collectively, the APG parties) challenge the trial courts order awarding defendant Catherine E. Schulman $151,298.88 in attorney fees and costs incurred in her successful defense against the APG parties prior appeal from an order vacating an arbitration award. In that prior appeal (Case No. B179978), we affirmed in a published opinion the trial courts order vacating the arbitration award on the ground that the arbitrator failed to comply with California disclosure obligations for arbitrators. (See Ovitz v. Schulman (2005) 133 Cal.App.4th 830 (Ovitz I).) In the second appeal at issue here (Case No. B194311), Schulman appeals from an order awarding the APG parties $75,569.04 in attorney fees incurred in successfully defending against Schulmans motion to stay or dismiss the arbitration (Schulmans motion was filed after the APG parties sought to renew the arbitration before a different arbitrator following our decision in Ovitz I). For the reasons discussed below, we affirm the order awarding Schulman her attorney fees and costs incurred in Ovitz I and reverse the order awarding the APG parties their attorney fees incurred in opposing Schulmans motion to stay or dismiss.