CA Unpub Decisions

Zenith Insurance Company (Zenith), the workers compensation carrier for Hutchinson Motors, petitioned for a writ of review of the decision of the Workers Compensation Appeals Board (Board) on the claim of Nader Azizi. Zenith contends the court should have applied the new permanent disability rating schedule that went into effect on January 1, 2005, rather than the 1997 schedule that was in effect when Azizi was injured. (See Lab. Code, 4660, subd. (d).) Court agree and annul the award.

A modification decision.

Plaintiff appeals from a judgment for Mako Fund, Inc. (Mako), Philip Markowitz, Rail Prop, LLC, and Douglas Kramer, entered after the trial court sustained without leave to amend demurrers to three causes of action in plaintiffs original complaint (complaint), and then sustained demurrers without leave to the remaining claims in plaintiffs amended complaint (AC). Court reverse with directions to reinstate all but one cause of action.

Plaintiff appeals from a judgment dismissing her action against two former California State Controllers (Kathleen Connell and Steve Westly ) and two employees of the controllers office (Richard J. Chivaro and George DeLeon), after the trial court sustained without leave to amend demurrers to plaintiffs third through ninth causes of action and plaintiff voluntarily dismissed her remaining causes. The complaint, styled as a class action, alleged various federal and state wrongs by defendants in the handling of property subject to the Unclaimed Property Law, Code of Civil Procedure section 1500 et seq. (UPL; undesignated section references are to that code). The court ruled that plaintiffs federal claims lacked merit and were precluded by federal immunity, and that the state claims could not proceed in light of the UPLs own preclusion of suit, and noncompliance with the Tort Claims Act. Court affirm the judgment.

Joseph Tillotson, a former financial advisor at Banc of America Investment Services, Inc. (BAI), appeals from the judgment entered after the trial court granted summary judgment in favor of BAI, Bank of America (Bank) and two BAI and Bank employees in Tillotsons action for defamation, wrongful termination and related employment claims. Court affirm.

The trial court denied appellant Douglas Gerald Taviss petition for writ of coram nobis. Tavis sought to vacate his plea of no contest to two counts of lewd and lascivious acts with a child, claiming that he was misadvised about the lifetime sex offender registration requirement when he entered that plea. (Pen. Code, 288, 290; former 290.1.) On appeal, he contends that the trial court abused its discretion in denying his petition when it ruled that he had not exercised due diligence in filing his petition in a timely manner. Tavis urges us to find that this lack of diligence was the fault of his counsel and that he himself was diligent once he was properly advised of the possibility of obtaining relief by means of a writ of error coram nobis. Court affirm the judgment.

Plaintiff appeals in propria persona from a judgment of the San Francisco County Superior Court entering judgment against her and in favor of defendant Leo Sauceda, Personnel Officer for the City and County of San Francisco. The judgment followed the courts sustaining defendants demurrer to plaintiffs first amended complaint and plaintiffs failure to amend. Appellant argues on appeal that the court erred in granting judgment in favor of the defendant on her complaint based upon the defendants negligence in refusing to hire her for a position as a 1426 Senior Clerk Typist with the City and County. Defendant contends that plaintiff has failed to provide an adequate record for our review and consequently did not overcome the presumption of correctness of the trial courts ruling. Our review of the record before us persuades us that defendant is correct.

In a prior opinion, Court affirmed the convictions of Rimma Fetissova for conspiracy to solicit for a prostitute (Pen. Code, 266h, subd. (a)/182, subd. (a)(1)),[1]conspiracy to commit pandering ( 266i, subd. (a)(1)/182, subd. (a)(1)), soliciting for a prostitute ( 266h, subd. (a)), pandering ( 266i, subd. (a)(1)), and four counts of money laundering ( 186.10, subd. (a)). The jury found a true allegation that two money laundering counts involved in excess of $50,000. ( 186.10, subd. (c)(1)(A).) Fetissova was sentenced to nine years in state prison consisting of a six-year upper term on the
soliciting for a prostitute count, and consecutive terms of sixteen months on the pandering count and eight months and one year, respectively, on two of the money laundering counts. Other sentences were stayed. ( 654.) Fetissova contended that, because the sentences were based on aggravating factors determined by the court, the trial court's imposition of an upper term and consecutive sentences violated her constitutional right to a jury trial under the rules announced in Apprendi v. New Jersey (2000) 530 U.S. 466, and Blakely v. Washington (2004) 542 U.S. 296. We rejected Fetissova's contention following the holding of our Supreme Court in People v. Black (2005) 35 Cal.4th 1238. Thereafter, the United States Supreme Court granted Fetissova's petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] which overruled Black, in part.
Accordingly, Court vacate the portion of the sentence imposing the upper term for the offense of soliciting for a prostitute, and remand for resentencing consistent with Cunningham. The trial court is directed to prepare an amended abstract of judgment in accordance with this opinion and deliver it to the Department of Corrections. In all other respects the judgment is affirmed.

Appellant appeals from the judgment entered in this action in quantum meruit filed by his former legal counsel, Mardirossian & Associates, Inc. (M&A), to recover attorney fees. Ersoff asserts the trial court committed multiple errors before, during and after trial and contends the jurys special verdict is not supported by substantial evidence. Ersoff and his trial counsel also challenge an order imposing monetary sanctions against each of them jointly and severally in the amount of $3,500. Court affirm.

After this court dismissed an appeal and denied plaintiff's motion to vacate the dismissal and reinstate the appeal, remittitur issued and ordered costs on appeal awarded to defendant Department of Social Services of the State of California. Alvord appeals from a trial court order awarding attorney fees on appeal of $7,131.80 and costs of $663.20. We find that the grounds for our order denying the motion to vacate the dismissal and reinstate the appeal were exclusively procedural, and that the order did not address the substantive merits of the appeal. Thus this court did not find that Alvords previous appeal was meritless, defined as groundless or without foundation. Therefore the order awarding attorney fees incurred on appeal to the defendant was an abuse of discretion, and must be reversed. Court find no error in the award to defendant of costs incurred in the prior appeal, and affirm that part of the order.

A jury convicted appellant of carrying a concealed firearm (count 1) (Pen. Code, 12025, subd. (a)(2)) and possession of a firearm by a felon (count 2) ( 12021, subd. (a)(1)). Appellant admitted that he had suffered a prior "strike" conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served a prior prison term ( 667, subd. (b)). The trial court sentenced appellant to four years in state prison, consisting of the middle term of two years on count 2, doubled due to the strike conviction. It imposed and stayed the sentence on count 1 pursuant to section 654 and struck the prior prison term enhancement. Appellant claims he is entitled to a Pitchess review to determine whether there were discoverable complaints against a police officer. Court affirm, with directions to modify the abstract of judgment.

P. W. appeals from the juvenile courts order continuing her wardship after finding she had committed aggravated assault with great bodily injury. P. W. contends the juvenile court erred by failing to declare on the record whether a prior adjudicated offense of making a criminal threat was a misdemeanor or a felony and by imposing an unconstitutional probation condition. Court affirm the order as modified.

Appellant was convicted by jury of assault by means of force likely to produce great bodily injury. (Pen. Code, 245, subd. (a)(1).) He was acquitted of a charge of assault with a deadly weapon with a 15-pound dumbbell. The jury found true the allegation that appellant had personally inflicted great bodily injury upon the victim. ( 12022.7, subd. (a).) Appellant admitted that he had three prior serious felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subd. (a)-(d)) and one prior serious felony conviction within the meaning of section 667, subdivision (a)(1). He also admitted having served three prior prison terms. ( 667.5, subd. (b).)
The trial court sentenced appellant to 25 years to life under the Three Strikes law. It struck the prison term priors but imposed an additional 5 - year enhancement pursuant to section 667, subdivision (a)(1), for a total aggregate term of 30 years to life in state prison. Court affirm.

Defendant appeals from the judgment entered following his convictions by jury on count 1 first degree murder (Pen. Code, 187) and two counts of attempted willful, deliberate, and premeditated murder ( 664, 187; counts 2 & 3) with, as to each offense, jury findings that a principal personally used a firearm ( 12022.53, subds. (b) & (e)(1)), a principal personally and intentionally discharged a firearm ( 12022.53, subds. (c) & (e)(1)), a principal personally and intentionally discharged a firearm causing great bodily injury or death ( 12022.53, subds. (d) & (e)(1)), and the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), and with court findings that appellant suffered a prior felony conviction ( 667, subd. (d)), a prior serious felony conviction ( 667, subd. (a)), and a prior felony conviction for which he served a separate prison term ( 667.5, subd. (b)). The court sentenced appellant on count 1 to a prison term of 50 years to life, plus 30 years and, on each of counts 2 and 3, to a term of life with the possibility of parole, plus 25 years to life, with service of a 14-year minimum parole eligibility term, and with the sentences on counts 2 and 3 consecutive to count 1 but concurrent with each other.
Court reject appellants claim that the trial court had a duty to give sua sponte CALJIC No. 8.73 to the jury. The court had no such duty because CALJIC No. 8.73 is a pinpoint instruction. Moreover, appellant has failed to demonstrate that there was substantial evidence to support such an instruction and, in any event, it was inconsistent with his alibi defense.
Court reject appellants claim that there is insufficient evidence to support the gang-related firearm enhancements imposed pursuant to section 12022.53, subdivisions (d) and (e)(1). Appellant argues there is insufficient evidence that he had the requisite specific intent to promote, further, or assist in any criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1). Appellant argues that in order to violate these sections he had to have a specific intent to promote, further, or assist in criminal conduct other than the offenses of which he was convicted. Appellant and fellow gang members in one car made gang signs to, and pursued, rival gang members in another car. The two gangs were at war. One of appellants confederates shot at three of the rival gang members, killing one. A gang expert opined the crimes were committed with intent to help out appellants gang. There was sufficient evidence that appellant harbored the requisite specific intent, and it was not required that he have a specific intent to promote, further, or assist in criminal conduct other than the offenses of which he was convicted. Finally, appellants claim that his sentence constituted cruel and unusual punishment is unavailing since he failed to object below on that ground. In any event, on the merits, Court reject his claim.