CA Unpub Decisions

The California Coastal Commission and its executive officer Peter Douglas (collectively, the Commission) appeal from a judgment entered in favor of Serra Canyon Property Owners Association (SCPOA) on a petition for writ of mandate.[1] In the peremptory writ of mandate, the trial court ordered the City of Malibu and its environment and community development director Victor Peterson (collectively, the City) to terminate the suspension of building permits the City had issued after it concluded SCPOAs proposed development project was exempt from the coastal development permitting requirements of the Coastal Act,[2]and the Malibu Local Coastal Program (Malibu LCP) the Commission had certified. The trial court also ordered the Commission to cease and desist from any interference with the permits approved by the [City] and to pay SCPOAs costs. This case arises out of a battle between the Commission and the City concerning which agency has permitting authority over some gates SCPOA erected at an already permitted gate house on Serra Road in Malibu, near state parkland which the public is permitted to access.

On appeal the Commission contends (1) it retained jurisdiction over SCPOAs gate project, (2) the project was not exempt from the coastal development permitting requirements of the Coastal Act and the Malibu LCP, (3) the mandate claim was not ripe for adjudication, and (4) the trial court lacked jurisdiction to enter judgment against the Commission because the Commission was not a party to the fourth cause of action in SCPOAs complaint, which was styled as a petition for writ of mandate. Although judgment also was entered against the City, the City has not appealed from the judgment and has submitted a respondents brief in this court advocating reinstatement of the Coastal Act exemption and building permits it issued for SCPOAs gate project but later rescinded in response to the Commissions request asserting it had jurisdiction over the project. Court agree with the Commissions last contention. SCPOA did not assert any allegations or seek any relief against the Commission in its petition for writ of mandate (the fourth cause of action in the complaint). It sought only the relief the trial court awarded against the City -- reinstatement of the exemption and the building permits. The Commission pointed this out in its opposition to SCPOAs motion for order granting peremptory writ of mandate, at oral argument, and in its objections to the proposed judgment. SCPOA never sought to amend its petition for writ of mandate to seek relief against the Commission or demonstrated in its motion that the Commission had a ministerial duty to cease and desist from interference with the City permits. Moreover, the trial court never adjudicated the declaratory relief causes of action which were directed at the Commission, and SCPOA dismissed these causes of action before judgment was entered.
For the foregoing reasons, Court modify the judgment to delete any reference to the Commission, including the cease and desist order and the order requiring it to pay SCPOAs costs. As so modified, the judgment is affirmed. The Commission will not be heard to complain about its alleged jurisdiction over SCPOAs gate project.

Petitioner (Michael) appeals from a May 23, 2006 order denying his Petition for Determination of Violation of No Contest Clause by Seroj Asadourian as a result of a will contest filed by Seroj Asadourian (Seroj). (No. B191586.) Michael also appeals from an October 24, 2006 order denying his Petition for Determination that Serojs Challenge to the First Amendment of 1998 Carmen Asadourian Revocable Trust is a violation of the trusts no contest clause. (No. B194739.)
Court consolidated the two appeals for purposes of argument and decision. Court deny the motions to dismiss the appeals. Court remand the matters to the trial court to hold a hearing to determine the applicability of Probate Code section 21307.

This is an appeal from an order granting a petition to compel arbitration and an order confirming the arbitration award. Court affirm the orders.

A jury found defendant guilty of possession of cocaine base for sale in violation of Health and Safety Code section 11351.5. In a separate bench trial, the trial court found defendant suffered three serious or violent felony convictions under the three strikes law (Pen. Code, 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served four prior prison terms ( 667.5, subd. (b)). The trial court granted defendants Romero motion, struck two of the strike convictions, and dismissed the prior prison term enhancements. Defendant received a one strike sentence of eight years, consisting of a four-year middle term doubled.
In his timely appeal, defendant contends (1) the trial court violated his state and federal constitutional rights to counsel and a fair trial by denying his request to discharge retained counsel, and (2) defendants rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) were violated when the prosecution improperly commented on defendants post-arrest silence in violation Doyle v. Ohio (1976) 426 U.S. 610 (Doyle). Court reject both contentions. The trial court acted within its discretion in denying defendants untimely request to discharge counsel, and defendant forfeited his Doyle error claim by failing to interpose a timely and specific objection below.

Appellant challenges his possession and transportation of controlled substances convictions on the ground the trial court failed to sentence him in accordance with his negotiated plea agreement or to permit him to withdraw his no contest plea. Court agree.

Appellant appeals from the judgment entered following a jury trial in which he was convicted of four counts of first degree residential burglary, counts 2 through 5, (Pen. Code, 459) and one count of receiving stolen property, count 8, (Pen. Code, 486, subd. (a)). The jury also found that counts 3, 4 and 5 were violent felonies within the meaning of Penal Code section 667.5, subdivision (c) in that another person, other than an accomplice, was present in the residence during the commission of the offense. He admitted that he had two prior convictions of serious or violent felonies within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)(i) & 1170.12, subds. (a)-(d)) and within the meaning of Penal Code section 667, subd. (a)(1).[1]He was sentenced to a life term with a minimum sentence of 25 years for each of his burglary convictions to run consecutively, plus 10 years for the two enhancements under Penal Code section 667, subdivision (a)(1). His sentence of life with a minimum of 25 years for count 8 was ordered stayed pursuant to Penal Code section 654. He contends the trial court abused its discretion under Penal Code section 1385 when it refused to strike at least one of his prior serious convictions. Additionally, he claims his 10-year plus 100 year to life prison term constitutes cruel and/or unusual punishment. For reasons stated in the opinion Court affirm the judgment.

Appellant appeals from a judgment entered after a jury found him guilty of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a); count 1); receiving stolen property (Pen. Code, 496d, subd. (a); count 2), two counts of forging and counterfeiting a California State Seal ( 472; counts 3 & 4), and grand theft by false pretenses ( 487, subd. (a); count 5). The trial court found true the allegation that appellant committed all the offenses while he was released from custody on bail or on his own recognizance. ( 12022.1.) The trial court sentenced appellant to the midterm of two years for count 1 plus two years for the enhancement. It also imposed concurrent terms of two years on counts 3 through 5.
Appellant contends that: (1) the evidence was insufficient to support appellants conviction for two counts of making a counterfeit seal; and alternatively, (2) the sentences for count 4 and 5 must be stayed pursuant to section 654.
The judgment is reversed as to count 4, counterfeiting a California seal.

Farid Hakimpour appeals from a judgment of dismissal entered after the trial court sustained the demurrer of Andraos Capital Management, Inc. without leave to amend. Court reverse with directions.

Minor Enrique R. appeals from the order continuing him a ward of the court (Welf. & Inst. Code, 602) by reason of his having committed the crime of possession for sale of a controlled substance in violation of Health and Safety Code section 11378. The juvenile court committed minor to a short term camp community placement. Court appointed counsel to represent minor on this appeal.We have examined the entire record and are satisfied that minors attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) The order under review is affirmed.

Andreas appeals from the judgment entered after a jury found him guilty of attempted first degree murder. He asserts insufficient evidence of premeditation and deliberation compels reversal of his conviction. Court affirm the judgment.

Defendant appeals from a judgment of conviction entered following a jury trial. Defendant was convicted of attempted premeditated murder (Pen. Code, 664, 187, subd. (a)) in count 1, shooting at an occupied motor vehicle ( 246) in count 2, and carrying a loaded firearm that was not registered ( 12031, subd. (a)(1)) in count 4. The jury found true the allegations that defendant committed the offenses in counts 1 and 2 for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b); that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1) and personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1) (count 1); and that defendant carried a firearm in a vehicle ( 12021.5, subd. (a), count 2).
The trial court sentenced defendant on count 1 to a term of 15 years to life plus 20 years under section 12022.53, subdivision (c), and an additional 10 years under section 12022.53, subdivisions (b) and (c), which additional enhancement was stayed pursuant to section 654; on count 2 to a term of 17 years to life, which was stayed pursuant to section 654; and on count 4 to the middle term of two years, to run concurrently with the sentence on count 1.
On appeal, defendant challenges the sufficiency of the evidence to support his conviction on counts 1 and 2 and the propriety of staying, rather than striking, the 10 year enhancement imposed for his count 1 conviction. Court affirm.

Defendant, appeals after he was found in violation of his probation. We hold: defendant received an incorrect award of presentence custody credit; he was entitled to credit for 185 days of actual presentence custody plus 92 days of conduct credit for a total of 277 days; additional assessments, a surcharge, and a penaltymust be imposed; and the abstract of judgment must be amended. Court thus modify the judgment.

This is the second appeal by plaintiffs and appellants Jesus Barboza, Juan Gonzalez, and Adolfo Sanchez in this case against defendant West Coast Digital GSM, Inc. (WCD). In the first appeal, we reversed the trial courts denial of class certification. While that appeal was pending, trial went forward on plaintiffs individual claims of wage and hour violations. At trial, plaintiffs prevailed on most of their damages and penalties claims, but the trial court denied their request for injunctive relief. They moved for statutory attorney fees in the amount of $79,712. The trial court disallowed certain categories of fees and awarded a total of $49,393. Plaintiffs appeal only the portion of the trial courts ruling that disallowed fees for trial and trial preparation related to two of the plaintiffs, Sanchez and Gonzalez. The trial court based its ruling as to those fees on its finding that Sanchez and Gonzalez declined an informal settlement offer that exceeded the amounts they recovered at trial, and that an experienced class action attorney would have accepted the offer as to those two plaintiffs. Court conclude that the trial court erred. The evidence shows that WCD did not make separate offers to Sanchez and Gonzalez. Rather, WCDs offer was a joint offer that included plaintiff Barboza. Therefore, Sanchez and Gonzalez could not alone have accepted the offer. Also, when considered in light of pre offer attorney fees, the amounts specified in the informal offer for Sanchez and Gonzalez did not exceed their recovery at trial. Thus, we conclude that the trial court erred in its attorney fee order to the extent it disallowed $16,807 in fees for trial and trial preparation.

Mazen Mosiafa Abdelfattah appeals an order denying his motion to vacate his conviction for assault with a deadly weapon (Pen. Code, 245, subd. (a)(2)) following his guilty plea in 1995. In 2005 he filed a motion to vacate his conviction claiming that he had not been advised of the immigration consequences of his conviction when he pled guilty in 1995. Court conclude that the trial court did not abuse its discretion by denying his motion. Abdelfattah signed a plea form which contained an advisement about the immigration consequences of his plea which he initialed. On that form he signed a statement under oath that he had discussed all the advisements on the form with his counsel. Court affirm.