CA Unpub Decisions
California Unpublished Decisions
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Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450 8.452 [formerly rule 38 38.1]) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter E. Court deny the petition.
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Court have resolved the main appeal, and the contretemps about the language of the minute order was never raised, and played no part in our analysis of the case. The issue is consequently moot. A court will not continue with the review of an . . . award . . . if the award does not affect the present relations of the parties, . . . (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 862.)
Of course, had the issue been raised, it could have properly been resolved in the context of that other appeal. Our power to resolve apparent conflicts between the language of a minute order and other aspects of the trial court record does not depend upon the filing of a separate appeal; it depends upon the existence of a record to evaluate. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166; People v. Smith (1983) 33 Cal.3d 596, 599; In re Josue G. (2003) 106 Cal.App.4th 725, 731, fn. 4.) The appeal is dismissed. |
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By Carrolls own allegations, the alleged oral agreement was not independent of the earlier contract. For one thing, the parties obviously did not intend the oral promises to be the only terms governing their new deal. A fair reading of the allegations (in accord with common sense) shows that the July 2003 promises involved extra pay for extra duties: Carroll would continue working for the loan company, but get a pay raise by also working for the real estate company.
For the same reason, the alleged July 2003 oral promises cannot qualify as a novation. In substance, the facts as alleged in the complaint do not reflect an intention to substitute a new oral agreement for the old written one; rather they only reflect an intent to embellish, i.e., modify, the old agreement, by changing merely two terms of that agreement. Lucky for Carroll, though, that he loses on the novation issue. If the facts showed a novation, Carroll would be stuck with an agreement without a severance provision, and severance is the fourth issue, and one on which he prevails in this appeal. Since the written agreement is operative, not only is Carroll stuck with it, but so is his former employer. And in that agreement his employer promised to pay Carroll a certain amount of severance pay in the event he was ever terminated. We reverse the judgment to the degree that it precludes any amendment to add a claim for severance pay based on the written contract that Court find otherwise dispositive on the contract issues. |
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Todd Bussell appeals from orders allowing attorney fees to be paid out of three trusts, following extensive litigation involving those trusts. Although Todd[1] disagrees with the fee orders, his appeal does not challenge their merits. Instead, Todd argues the court erred in deciding both the amount and the allocation of fees among the trusts, without holding an evidentiary hearing and without first allowing him to take discovery. We are unpersuaded. The court did hold a hearing on the fee petitions, and those petitions were supported by evidence. The court gave Todd the opportunity to file opposition, and Todd was free to include whatever evidence he believed relevant in his opposition. That is all that is necessary to constitute an evidentiary hearing.
Additionally, the court did not deny Todd the opportunity to take discovery. Our record reflects that Todd never initiated any, and instead waited until a month and a half after the fee petitions were filed to seek an ex parte order allowing him to initiate discovery on shortened time. The court was not required to grant that relief. The orders are affirmed. |
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Defendant was convicted after jury trial of inflicting corporal injury on the mother of his child (Pen. Code, 273.5, subd. (a)),[1] and felony false imprisonment ( 236, 237). In a bifurcated proceeding, the trial court found that defendant had two prior serious felony convictions that also constituted strikes ( 667, subd. (a), 1170.12, 1192.7, subd. (c)), and that he had served two prior prison terms ( 667.5, subd. (b)). The court denied defendants request to strike his strikes, and sentenced defendant to the indeterminate term of 25 years to life.
On appeal defendant contends that (1) the courts instructions to the jury pursuant to CALJIC Nos. 5.40 and 5.42 misstated the law; (2) counsels failure to object to CALJIC Nos. 5.40 and 5.42 and to request correct instructions constituted ineffective assistance; (3) the court improperly instructed the jury pursuant to CALJIC No. 5.55; (4) the court improperly admitted evidence of defendants prior misdemeanor battery conviction; (5) the cumulative effect of these errors requires reversal; and (6) there is insufficient evidence to support the findings as to the prior strikes. Court disagree with all of these contentions, and therefore affirm the judgment. |
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Defendant was convicted of first degree murder. On a previous appeal we remanded for correction of errors in the imposition of certain fines. On this appeal defendant contends that the trial court again erred on remand. Respondent concedes the error. The only issue is whether Court can direct a correction of one of the fines without further ado, or whether the nature of the error requires further proceedings below. Court have concluded that further proceedings would serve no purpose. Accordingly Court direct the trial court to strike one fine and reduce the other to a specified amount.
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Defendants Compuware Corporation (Compuware) and W. Alan Cantrell (Cantrell) appeal and plaintiffs Mary McCarthy OLee (McCarthy) and Aidan OLee (OLee) cross appeal from a judgment following jury verdicts in favor of plaintiffs in their action for libel against defendants. The jury awarded OLee $550,000 and McCarthy $600,000 in compensatory damages and $5 million each in punitive damages. The trial court found the punitive damages award exceeded its constitutional maximum and reduced the punitive damages award to $1.65 million to OLee and $1.8 million McCarthy (three times the compensatory damages verdict).
Defendants contend that the evidence was insufficient to support the jurys finding of actual malice to defeat the common interest privilege; that the evidence of malice, oppression or fraud was insufficient to support any punitive damages award; and that the reduced punitive damages award was unconstitutionally excessive. On their cross appeal, plaintiffs contend that the jurys punitive damages award of $5 million to each plaintiff was constitutional and that the trial court erred in reducing the award. Court affirm the judgment. |
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Barbara Hines appeals from an order directing her to convey her 50 percent interest in certain real property to the estate of her mother, Josephine De Rouen; removing her as administrator of the estate; and appointing her brother Rufus De Rouen as successor administrator. Court affirm.
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A jury convicted Defendant of premeditated attempted murder committed to benefit a gang, during which he personally discharged a firearm causing great bodily injury. (Pen. Code, 664, subd. (a), 187, subd. (a), 189; 186.22, subd. (b)(1); 12022.53, subd. (d); all further undesignated references are to the Penal Code.) In a bifurcated hearing after a jury waiver the court found that Defendant had a strike prior felony conviction. ( 667, subds. (b) (i), 1170.12.) The court imposed an aggregate 55 years to life sentence. Defendant appeals, contending that (I) his conviction violates section 1111 because insufficient evidence corroborated the accomplices testimony that Reyes shot the victim;[1](II) the court erred in admitting one portion of his third post arrest statement to the police but excluding another portion of that same statement (Evid. Code, 356); and (III) the prosecutor committed misconduct during his argument to the jury. Court reject these contentions and affirm the judgment.
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In the underlying action, appellants Pamela Beaty and Kandis Leigh alleged that their landlords permitted toxic mold to infest their apartment, and then wrongfully terminated their rental agreement. Arthur Travieso, Lan Nguyen, and the law firm of Lewis, Brisbois, Bisgaard & Smith (LBB&S) represented respondents Harriet Raasch and Karen Raasch before and during the action. Appellants challenge orders denying them leave to assert claims against Travieso, Nguyen, and LBB&S, and to depose the attorneys who had represented Harriet Raasch and Karen Raasch. Court affirm the denial of leave to assert claims against these attorneys, and dismiss the appeal regarding the denial of leave to depose opposing counsel.
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Appellant was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code[1]section 187, subdivision (a), one count of attempted premeditated murder in violation of sections 187 and 664, and one count of shooting at an occupied vehicle in violation of section 246. The jury found true the allegations that all three offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). The jury also found true the allegations that a principal personally used and personally and intentionally discharged a handgun in the commission of the murder and attempted murder within the meaning of section 12022.53, subdivisions (b), (c), and (e)(1) and that a principal personally and intentionally discharged a firearm proximately causing great bodily injury and death in the commission of the murder within the meaning of section 12022.53, subdivisions (d) and (e)(1). The trial court sentenced appellant to a total of 80 years to life in state prison for the murder conviction and associated enhancements. Sentences for the attempted murder and shooting convictions were imposed concurrently.
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the verdict and also contending that the trial court erred in failing to stay sentence on the section 246 conviction pursuant to section 654. Court agree that sentence on the section 246 conviction must be stayed. Court affirm the judgment of conviction in all other respects. |
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A jury convicted defendant and appellant Elvis Lenin Lopez of making a criminal threat, in violation of Penal Code section 422, and attempted extortion, in violation of section 524. The jury found that both offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). Defendant admitted suffering a serious felony prior conviction within the meaning of section 667, subdivision (a), and a prior conviction under the three strikes law within the meaning of sections 667, subdivisions (b) (i), and 1170.12, subdivisions (a) (d). Defendant was sentenced to state prison for a total of 14 years on the criminal threat charge, consisting of 4 years for making a criminal threat (the midterm of 2 years, doubled under the three strikes laws), plus 5 year enhancements for both the serious felony prior conviction and the gang finding. A seven year state prison sentence was imposed on the attempted extortion count, but the sentence was stayed pursuant to section 654.
Our review of the record reveals no arguable issues on appeal and counsel has fulfilled her obligation to represent defendant. (Smith v. Robbins (2000) 528 U.S. 259, 278 to 284; People v. Wende, supra, 25 Cal.3d at p. 441.) The judgment is affirmed. |
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A jury convicted Defendant of eight counts of rape and one count of sexual penetration by a foreign object and found true the special allegation he had committed the offenses during the course of a burglary. The trial court sentenced Johnson to an aggregate state prison term of 89 years to life. On appeal Johnson contends the evidence is insufficient to support his convictions on three of the rape counts. Johnson also contends the trial courts imposition of a sentence based in part on its own factual findings concerning aggravating circumstances violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. In light of the United States Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), which invalidated portions of Californias determinate sentencing law (DSL), Court remand for resentencing. In all other respects, Court affirm.
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