CA Unpub Decisions

Defendants and appellants Jason Perkins (Perkins), Michael O’Connor (O’Connor), Soul Lounge, LLC (Soul Lounge), and Parish Mission Property, LLC (Parish Mission) (collectively, appellants), appeal following the denial of their motion to vacate an over $300,000 default judgment against them on a complaint filed by plaintiff and respondent Vendini, Inc. (Vendini). Appellants contend the trial court erred in concluding there was proper substitute service within the meaning of section 415.20 of the Code of Civil Procedure. We affirm.

Plaintiff Janet Tapia appeals from an order granting terminating sanctions and dismissing this action in its entirety. We affirm.

Steven Fredrick Cycyk appeals from convictions arising out of an attempted robbery of the Best Western Heritage Inn in Concord. He seeks a remand for resentencing due to legislative changes giving trial courts discretion over certain sentence enhancements that were mandatory at the time he was sentenced.

A jury found defendant Willie Lyons guilty of rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)), his 24-year-old stepdaughter, T.B. The trial court sentenced him to six years in prison. In this appeal, Lyons contends his trial counsel provided ineffective assistance by (1) objecting to a jury instruction on the lesser charge of attempted rape of an unconscious person, and (2) failing to challenge DNA evidence presented by the prosecution. We affirm.

Defendant David Lee Anderson was found guilty by a jury of (1) mayhem, (2) assault with a firearm, (3) second degree robbery, and (4) assault by means likely to produce great bodily injury. The jury also found certain enhancements, including firearm enhancements, to be true. On appeal, he asserts the trial court erred in denying his motion to discharge his retained attorney after trial had commenced. He further contends the court erred in imposing a full consecutive term rather than a subordinate term for his robbery conviction. In supplementary briefings, he also asserts his case must be remanded so the trial court may exercise its discretion under recently enacted statutory amendments to strike the firearm enhancements and to dismiss a prior serious felony conviction enhancement. We agree that the sentence on the robbery conviction must be modified. We also concur that the matter must be remanded for the court to exercise its discretion to dismiss the relevant enhancements.

Rael & Letson (R&L, or the company) brought this action against defendants Michael Clark and the Clark Family Partnership (CFP), alleging Clark, the company’s Chief Executive Officer (CEO), misappropriated more than $3,000,000 in company funds under the guise of business expenses. The trial court entered judgment for R&L. R&L appeals, contending the judgment does not accurately reflect the jury verdict, that it was entitled to additional prejudgment interest, and that it was entitled to additional damages. We interpret the jury verdict to reflect a total damage award of $2,939,974, with CFP jointly and severally liable for $1,267,129 of that amount, and shall order the trial court to modify the judgment accordingly. We shall also order the trial court, on remand, to recalculate prejudgment interest and damages for breach of the duty of loyalty.

A jury found appellant Laonna Marie Rochell (defendant) guilty of assault upon a peace officer with force likely to produce great bodily injury (Pen. Code, § 245, subd. (c); count 1), resisting an executive officer (§ 69; counts 2 and 3), and unlawful driving or taking a vehicle without consent (Veh. Code, § 10851; count 4). The trial court sentenced defendant to an aggregate four-year prison term on counts 1 through 4; suspended execution of the sentence; placed her on probation for three years; and imposed a one-year county jail term for counts 1 through 4 and a consecutive one-year county jail term for a separate count defendant pled to. The county jail terms were to be deemed served upon completion of a residential drug treatment program.

This case arises out of the March 2013 eviction of the former owner and three sets of tenants from their homes. Fred F. Farahani, had lost title to 1650 Pomona Avenue, San Jose (the property) through foreclosure in January 2013. Farahani’s tenants were Ricky L. Stewart, Julie A. Stewart, and Seth D. Stewart (collectively the Stewarts); Paulette S. Whelan; and Alex B. Ablitz.
After the foreclosure, the new owner, Ronald A. Floria, obtained an unlawful detainer judgment against Farahani. Farahani’s tenants were not named in the suit or in the judgment, and they asserted they had no knowledge of either. The Sheriff of Santa Clara County (Sheriff) thereafter evicted Farahani and his tenants.

Daniel Mendoza challenges his conviction for second degree robbery based on evidence he stole items from a grocery store. He contends the trial court erroneously allowed the People to present an incomplete version of his response when asked by a store employee if he had a receipt. Mendoza also claims the court committed instructional error by adding a duplicative force or fear instruction to the robbery count. We disagree with each contention, and affirm the judgment of conviction.

Jonathan Phan was convicted of one count of battery against a person with whom he has or previously had a dating relationship (Penal Code, § 243, subd. (e)(1)), and one count of identity theft. (§ 530.5, subd. (c)(2).) He appeals, arguing the evidence was insufficient to support the offense charged in either count because there was no evidence demonstrating (1) he was in a “dating relationship” with the victim of his battery, or (2) that he had willfully obtained the personal identifying information found on the floor behind the driver’s seat of his car.

Wilfredo Mina stands convicted, following a jury trial, of sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); counts 1 & 5), commission of a lewd act on a child under age 14 (§ 288, subd. (a); counts 2 & 4), and sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a); count 3). After a bifurcated court proceeding, he was found to have committed offenses against more than one victim. (§ 667.61, subds. (b) & (e).) His motion for a new trial was denied, and he was sentenced to a lengthy prison term and ordered to pay various fees, fines, and assessments.
On appeal, we hold: (1) Any error in the admission of charts prepared by the prosecutor was harmless; and (2) Mina is not entitled to have a concurrent sentence imposed on count 4. Accordingly, we affirm.

While under the influence of marijuana, defendant Rodolfo Alberto Contreras caused a traffic collision in Bakersfield that killed another driver, David A., and injured David’s wife, Kathleen A. Defendant was charged with and convicted by jury of second degree murder (Pen. Code, § 187, subd. (a) (count 1)), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a) (count 2)), and driving under the influence and causing bodily injury to Kathleen (Veh. Code, § 23153, former subd. (e) (count 3)). In addition, the jury found true the multiple victims sentence enhancement allegation attached to count 2 (as to Kathleen) and count 3 (as to David), and it found true the sentence enhancement for personal infliction of great bodily injury (GBI) attached to count 3 (as to Kathleen).

In this matter, we have reviewed the petition for a writ of mandate or prohibition, the opposition filed by real parties in interest, and petitioners’ reply. We have determined that resolution of the matter involves the application of settled principles of law, and that the equities favor petitioners. We conclude that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178; Code of Civ. Proc., § 1088.)

On October 20, 2017, an information charged defendant and appellant Armando Medina Rosas with residential burglary, a felony (Pen. Code, § 459, count 1); cruelty to animals, a felony (Pen. Code, § 597, subd. (a); count 2); attempted auto theft, a felony (Pen. Code, § 664 & Veh. Code, § 10851; count 3); and resisting an executive officer, a felony (Pen. Code, § 69; count 4). The information also alleged that defendant had suffered a strike prior, a 2016 attempted robbery conviction. (Pen. Code, §§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1).) The information further alleged that defendant had suffered a prison prior under Penal Code section 667.5, subdivision (b).