CA Unpub Decisions

Appellant argues that the evidence is insufficient to support his conviction for dissuading a victim by force or threat. He also argues the trial court erred in failing to instruct the jury, sua sponte, on the crime of dissuading a victim as a lesser included offense. Finally, he contends the court erred in failing to give CALJIC No. 5.54 (self-defense by an aggressor) on its own motion. Court affirm.

This personal injury action arose out of an automobile accident. Plaintiffs, Young Pil Choi and Joo Yeon Baek, alleged a single cause of action for negligence. They appeal from a judgment entered on a jury verdict and an order denying their new trial motion. The jury awarded plaintiffs damages in the exact amount of the acupuncture and chiropractic expenses they incurred in the two plus months following the incident. Plaintiffs contend the damage awards are inadequate as a matter of law insofar as the jury necessarily found they were injured, but failed to award any amount for pain and suffering. Court find: there was conflicting evidence as to the nature and extent of plaintiffs accident-related injuries; given the conflicting evidence, the jury reasonably could conclude plaintiffs were entitled to recover medical costs for short-term treatment of soft tissue injuries; but they did not endure any significant physical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, anxiety, or emotional distress. Accordingly, Court conclude the evidence supported the jurys verdict and the trial court did not abuse its discretion in denying the new trial motion. Court affirm the judgment.

Mario Albert Zambrano appeals from judgment entered following a jury trial in which he was convicted of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)) and his admission that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)). He was sentenced to prison for four years, consisting of the middle term of two years, doubled pursuant to the Three Strikes law and contends the court committed instructional error. For reasons stated in the opinion Court affirm the judgment.

Plaintiff Chan Ung Chu sued defendant Ick Chool Choi for breach of a construction contract and fraud. The trial court granted plaintiffs motion for summary adjudication on the breach of contract claim, ruling that under Business and Professions Code section 7031, subdivision (b) plaintiff was entitled to a refund of his $30,000 down payment because defendant was an unlicensed contractor. Plaintiff thereafter voluntarily dismissed his fraud claim, and judgment was entered in plaintiffs favor in the sum of $30,000 plus costs. Defendant appeals from the judgment, contending that the trial court erred in summarily adjudicating the contract claim in plaintiffs favor. Court affirm.

Earl Wadley appeals from judgment entered following a jury trial in which he was convicted of petty theft with a prior in violation of Penal Code section 666 and found to have suffered five prior felony convictions and served prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for a total of eight years, consisting of the upper term of three years for the petty theft with a prior, plus five 1-year terms for the prior prison term enhancements. He contends the imposition of the upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296 and his federal constitutional rights to a jury trial and due process. For reasons stated in the opinion, Court affirm the judgment.

Appellant James Butler appeals from the sentence imposed following a violation of probation. Court affirm. Appellant contends that the trial court abused its discretion in revoking probation and executing the previously imposed four-year prison sentence.

Defendant was convicted by a jury of reckless driving while fleeing from a peace officer (Veh. Code, 2800.2), vehicle theft (Veh. Code, 10851, subd. (a)), and driving a vehicle while in possession of not more than one ounce of marijuana (Veh. Code, 23222, subd. (b)). Following discharge of the jury, the court found true allegations that defendant had been convicted of five prior felonies for which prison terms were imposed. (Pen. Code, 667.5, subd. (b); unspecified section references that follow are to the Penal Code.)
Defendant was sentenced to an aggregate state prison term of eight years and eight months as follows: the upper term of three years on the fleeing charge; one-third the middle term (eight months) on the vehicle theft charge; five one-year enhancements for the prior felonies. He appeals contending the trial court violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) in imposing the upper term on the fleeing charge. Court affirm the judgment.

In case No. SF086955A, defendant pleaded no contest to felony possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), misdemeanor cruelty to a child (Pen. Code, 273a, subd. (b)), and giving false information to a police officer (Pen. Code, 148.9, subd. (a)). Pursuant to the terms of the plea, the court imposed a 10-month term, suspended for participation in the drug court program, and ordered five years of probation and attendance in a parenting class. Defendant violated probation less than a month later and probation was reinstated on the condition that he enter a residential drug program and serve the previously stayed term. The judgment is affirmed. The trial court is directed to correct page one of the abstract of judgment to reflect that defendant was sentenced to a two-year concurrent term for the possession of methamphetamine. The court shall forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

A jury convicted defendant Richard Junius Carter on 10 counts charging various sex offenses committed over a number of years against three minor girls. (Pen. Code, 261.5, subd. (c)counts 2, 9, 11; 261.5, subd. (d)count 7; 288, subd. (a) count 4; 288, subd. (c)(1)count 6; 288.2, subd. (a) count 10; 288.5, subd. (a)count 3; 289, subd. (h) count 1; 289, subd. (j)count 5; unspecified section references that follow are to the Penal Code.) The jury acquitted defendant of one charged sex offense ( 289, subd. (i)--count 8), but found true allegations that defendant used obscene material in committing counts 3 and 4 ( 1203.066, subd. (a)(9)). The trial court sentenced defendant to an aggregate prison term of 20 years 4 months.
On appeal, defendant contends that (1) the court erroneously admitted evidence of uncharged acts; (2) CALJIC No. 2.21.2 (Witness Willfully False) unconstitutionally lessens the prosecutors burden of proof; (3) cumulative error compels reversal, (4) prosecution on count 7, charging a violation of section 261.5, subdivision (d), was time-barred; (5) the court exceeded its authority in ordering defendant not to have any contact with the victims; and (6) the court violated principles enunciated in Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] (Cunningham) in imposing the upper term on count 3. Court reverse defendants conviction on count 7 and strike the no contact/no visitation order. In all other respects, Court affirm the judgment.

A jury acquitted defendant Luis Cardenas Orosco of first degree murder (Pen. Code, 187, subd. (a))[1]but found him guilty of the lesser included offense of second degree murder ( 189), five counts of attempted murder ( 187, subd. (a), 664), and one count of first degree burglary ( 459). The jury also found true allegations that defendant used a dangerous and deadly weapon in the commission of the murder and attempted murders ( 12022, subd. (b)(1)) and personally inflicted great bodily injury in the commission of the attempted murders ( 12022.7, subd. (a)).
Sentenced to 43 years to life in prison, defendant appeals, contending the trial court erred in denying his motion to suppress his statement to law enforcement following his arrest. After reviewing the record, including a transcript of the interview, Court conclude the trial court properly denied defendants motion. Accordingly, Courtaffirm the judgment.

Defendant was tried by a jury and convicted of second degree robbery, attempted murder, and assault with a firearm. The jury found true the special allegations that defendant personally and intentionally discharged a firearm causing great bodily injury, personally inflicted great bodily injury, and personally used a firearm. The court sentenced him to an aggregate prison term of eight years plus 50 years to life.
On appeal, defendant contends (1) the trial courts refusal to allow him to assert the defense of perfect or imperfect self-defense, and to instruct the jury as to those defenses, violated his constitutional rights to due process and a fair trial, and (2) the sentence imposed constitutes cruel and unusual punishment under the federal and state Constitutions. Court affirm the judgment.

A jury convicted defendant Russell G. Rawlinson of unlawfully driving and taking a vehicle (Veh. Code, 10851, subd. (a) -- count one), receiving a stolen vehicle (Pen. Code, 496d, subd. (a) -- count two), and willful and wanton evading (Veh. Code, 2800.2, subd. (a) -- count three). Defendant admitted an on-bail enhancement (Pen. Code, 12022.1) and a strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12).
Sentenced to state prison, defendant appeals, contending the prosecutor committed prejudicial misconduct in closing argument. Court disagree and affirm the judgment.

Defendant (District) awarded plaintiff MBA Construction, Inc. (Mack), a $2.89 million contract to build a multi-use facility at Sequoia Middle School (Project).[1]Mack finished construction five months after the completion date set forth in the contract. It sued the District for breach of contract, indemnity and declaratory relief, seeking $856,371 in damages and interest for delays (delay damages) caused by the District and for payments improperly withheld by the District. Following a court trial, the court awarded Mack $31,984 in damages.
Mack appeals, challenging the damage award. It also argues the courts statement of decision was defective. Court affirm the judgment.

A jury convicted defendant James Albert Kegley of vehicle theft (Veh. Code, 10851, subd. (a)) and receiving stolen property (Pen. Code, 496, subd. (a)). On appeal, he contends the trial court abused its discretion by admitting evidence of two prior vehicle thefts. (Evid. Code, 1101, subd. (b).) Court disagree and affirm the judgment.