CA Unpub Decisions

A jury found defendant and appellant Joseph Lee Richardson guilty of two counts of second degree robbery (Pen. Code, 211, counts 2 & 5) and two counts of attempted second degree robbery ( 664/211, counts 6 & 7). As to each count, the jury also found true the allegation that defendant was vicariously armed with a firearm. ( 12022, subd. (a)(1).) The jury additionally found true the allegations that the crimes committed by defendant were carried out in a manner that indicated planning and that one or more of the victims of the crimes was particularly vulnerable. The trial court sentenced defendant to state prison for a total term of nine years four months, which included the upper term of five years on count 2. Defendants sole contention on appeal is that the imposition of the upper term sentence violated his Sixth Amendment right to trial by jury under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) U.S. [127 S.Ct. 856, 166 L.Ed.2d 856]. Court disagree and affirm.

Defendant appeals after she pleaded guilty to one count of first degree burglary. She contends that the court erred in describing one aspect of the plea bargain, and she wishes to withdraw her plea. She has filed a petition for writ of habeas corpus raising the same issue. Court have ordered the habeas petition to be considered and decided at the same time as the appeal. Court conclude that, although the trial court erred, no prejudice resulted from the error. The judgment is affirmed and the petition for writ of habeas corpus is denied.

Defendant was found guilty by a jury of attempted murder (Penal Code, 664/187) and assault with a deadly weapon. ( 245, subd. (a)(2).) After the jury rendered its verdict, the trial court set the matter for sentencing. At that hearing, the court dismissed the action pursuant to section 1118.1. The People have filed this appeal, alleging that the trial court entered a void order and acted in excess of its jurisdiction when it dismissed the action pursuant to section 1118.1. Court conclude the court exceeded its jurisdiction in dismissing the action under that statute.

Defendant appeals after he was convicted of three counts of first degree robbery and one count of second degree robbery. He raises issues of lesser included offense instructions as to the second degree robbery count and consecutive sentencing. Court affirm.

Plaintiffs appeal from judgment following the trial courts grant of summary judgment in favor of defendant and respondent Barnard Construction Co., Inc. (Barnard). Plaintiffs contend triable issues of material fact exist as to whether defendant Glen Edward Allison was acting in the course and scope of his employment with Barnard when the underlying accident occurred. Court disagree, and affirm.

The People of the State of California appeal from a trial court order dismissing for sentencing purposes five prior prison term allegations within the meaning of Penal Code section 667.5, subdivision (b). The People argue the order is void because the trial court failed to set forth the reasons for the dismissals in its minutes as required by section 1385, subdivision (a). The People also contend the order should be reversed because the trial court abused its discretion by engaging in illegal plea bargaining. In addition, the People claim the trial court improperly applied sentence credits under section 4019.
The sentences imposed in case Nos. RIF122745 and RIF123418 are vacated, and the matter is remanded to the trial court for resentencing in compliance with the views expressed in this opinion. However, before resentencing defendant in accordance with this opinion, the trial court is directed to permit defendant, if he so desires, to withdraw his guilty plea in case No. RIF123418 (the cocaine sale case). In accordance with the views expressed herein, upon resentencing, the trial court is reminded to review the presentence credits under section 4019 calculated as of the time defendant was originally sentenced in case No. RIF122745 and transferred to state prison.

On June 12, 2002, pursuant to Penal Code section 1192.5, defendant pled guilty to a violation of Health & Safety Code section 11350, subdivision (a), possession of cocaine, in exchange for Penal Code section 1210.1 treatment. Pursuant to the plea agreement, if defendant was found ineligible or if she failed to complete the program, she would be committed to state prison for 16 months. Defendant was thereafter sentenced in accordance with the negotiated disposition to three years of a formal grant of probation.
On March 5, 2003, a petition was filed seeking to revoke defendants probation based on her non-attendance at treatment and failure to keep an appointment with probation. Thereafter, defendant admitted the violation and the trial court reinstated defendants probation of May 14, 2003. A second petition to revoke defendants grant of probation was filed October 16, 2003, because defendant failed to appear for her probation appointment and her whereabouts remained unknown. Defendant admitted the violation and the trial court reinstated defendants probation on October 28, 2003. A third petition to revoke probation was filed March 23, 2004, for failing to enroll in a drug treatment program and the trial court preliminarily revoked probation.
Court have now concluded our independent review of the record and find no arguable issues.
The judgment is affirmed.

A jury found defendant and appellant Edward Casares, Jr., guilty of first degree murder. (Pen. Code, 187, subd. (a)). The jury also found true the special circumstance that the murder was committed during the course of a carjacking/robbery ( 190.2, subd. (a)(17)) and the allegation that defendant personally and intentionally discharged a firearm causing great bodily injury and death ( 12022.53, subd. (d)). The trial court sentenced him, defendant appealed, and Court affirmed.

In a lawsuit filed after an automobile accident, plaintiffs and appellants Malvina Martin and her family (Martin) obtained a default judgment against defendant and respondent Lynne Badgley. The trial court granted Badgleys motion under Code of Civil Procedure section 473.5 to set aside the default. Finding no abuse of discretion by the court, Court affirm.

Enrique Gonzalez appeals his convictions for assault with a semiautomatic firearm (Pen. Code, 245, subd. (b)), discharge of a firearm with gross negligence ( 246.3), carrying a loaded firearm with a prior misdemeanor conviction ( 12031, subds. (a)(1) & (a)(2)(A)), second degree robbery ( 211), and exhibiting a firearm in public ( 417, subd. (a)(2)). The jury found true allegations that he personally used a firearm in the assault ( 12022.5), and in the robbery ( 12022.53, subd. (b)). Gonzalez contends that admission into evidence of hearsay portions of a videotaped police interrogation violated his right to a fair trial. He also challenges the imposition of an upper term sentence based on aggravating factors that were not found true by the jury. Court affirm the judgment, but remand for resentencing.

Appellants Hollywood Screentest of America, Inc. (HST) and James Pascucci (Pascucci) (collectively appellants) appeal an order granting summary judgment against them and in favor of respondents NBC Universal, Inc., and NBC Studios, Inc. (collectively NBC). Appellants also appeal an order sustaining respondent Jeffrey Zuckers (Zucker) demurrer without leave to amend and a judgment of dismissal in favor of Zucker. Court affirm the order granting summary judgment as to all causes of action, and therefore find it unnecessary to address the demurrer.

Jesus Enrique Santoyo appeals from a judgment entered upon his convictions by jury of premeditated attempted murder (Pen. Code, 664, subd. (a) & 187, subd.(a)) and shooting from a motor vehicle ( 12034, subd. (c)). The jury also found to be true as to each count that appellant personally and intentionally discharged a firearm causing great bodily injury ( 12022.53, subds. (b), (c), (d), (b) & (e)(1), (c) & (e)(1), and (d) & (e)(1)), that appellant inflicted great bodily injury by discharging a firearm from a motor vehicle ( 12022.55), and that he committed the offense to benefit a criminal street gang ( 186.22, subd. (b)(1)(A)). The trial court sentenced appellant to an aggregate state prison term of 40 years to life.
Appellant contends that (1) CALJIC No. 2.92 is erroneous, and instructing the jury with it rendered his trial fundamentally unfair; (2) he was deprived of due process and a fair trial by the use of unduly suggestive identification procedures; (3) eyewitness identification evidence is unreliable and, absent corroborating evidence, is insufficient to support his convictions; (4) he suffered ineffective assistance of counsel as the result of his counsels failure to (a) move to exclude the identification evidence as having been obtained through unconstitutionally suggestive police identification procedures, (b) present expert testimony, (c) request cautionary instructions on the fallibility of memory and eyewitness identifications, and/or (d) object to several CALJIC No. 2.92 factors as ambiguous or having been proven to be inadequate indicators of identification accuracy; (5) the opinion testimony of the investigating detective exceeded the scope of permissible expert testimony; and (6) punishment for both the crime of attempted murder and the firearm enhancement violates double jeopardy, collateral estoppel, double punishment, the IrelandMerger Doctrine[2]and the principles set forth in Apprendi v. New Jersey(2000) 530 U.S. 466 (Apprendi). Court affirm.

Plaintiff Sunny Ohara appeals from the judgment in favor of defendants Mi Jeong Kim and Yong Whan Kim following a court trial. Appellant essentially contends the evidence does not support the courts findings that respondents did not fraudulently induce her to buy their Cold Stone Creamery business through misrepresentations regarding the profitability of the business and that the business was operated by its employees.
The trial court expressly found no material misrepresentations were made by respondents to appellant. The record contains overwhelming evidence to support this finding and the courts further finding that appellant did not rely on any representations by respondents as to past profits of the business or the operation of the business by its employees. Court affirm the judgment.

Appellant Salwa Levsey appeals a summary judgment granted in favor of respondent Callegus Municipal Water District (Callegus) on her employment discrimination action under the California Fair Employment and Housing Act (FEHA). (Gov. Code, 12940 et seq.) Born in Egypt and of Egyptian ethnic descent, she asserted causes of action for ethnic discrimination and hostile work environment against Callegus. The trial court ruled that Levsey did not suffer an adverse employment action and that there was no evidence of harassment sufficiently severe and pervasive to constitute a hostile work environment. Court agree and affirm.