CA Unpub Decisions

Appellant challenges the sentence imposed for his possession of cocaine base conviction on the ground the trial court violated his right to a jury trial by imposing the upper term. Court conclude the trial court permissibly relied upon recidivism type factors to impose an upper term.

This case involves lawsuits brought by the buyer and the sellers broker in connection with an agreement for the purchase and sale of residential property. The broker settled its lawsuit, stipulating with the seller before trial to the terms of a judgment to be entered in the brokers favor. At the conclusion of a jury trial on the buyers claims for breach of contract, specific performance and fraud, the jury returned a special verdict in the buyers favor containing several inconsistencies. Before the jury was discharged, the parties agreed in open court on terms to be included in a judgment and waived certain irregularities in the special verdict form. The buyer was directed to prepare a judgment. The seller filed objections to the proposed judgment prepared by the buyer. After a hearing, the trial court entered the judgment. The judgment included the terms to which the broker and seller had previously stipulated.
The seller and the broker filed appeals. Court conclude that:
(1) The judgment in favor of the buyer was not a stipulated or consent judgment, because there was no meeting of the minds between the parties as to the terms of the judgment. Because the parties did not agree, the trial court erred in entering a judgment which awarded the buyer both specific performance and damages, and the judgment therefore must be reversed. On remand, the buyer may elect specific performance, in which event a new judgment should be entered accordingly. If the buyer does not elect the remedy of specific performance, the court must conduct a new trial on damages.
(2) The broker may not appeal because the broker consented to the judgment and expressly waived its right to appeal.

Robert Lynn Midkiff appeals from the judgment entered following a court trial in which he was convicted on count 1 first degree residential burglary with a person present (Pen. Code, 459, 667.5, subd. (c)(21)), count 2 assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)), count 3 second degree robbery (Pen. Code, 211) and count 4 first degree residential robbery (Pen. Code, 211), with, as to counts 1, 3, and 4, personal use of a deadly and dangerous weapon (Pen. Code, 12022, subd. (a)(1)) and, as to all counts, personal infliction of great bodily injury (Pen. Code, 12022.7, subd. (a)), with admissions he suffered two prior felony convictions (Pen. Code, 667, subd. (d)), two prior serious felony convictions (Pen. Code, 667, subd. (a)), and four prior felony convictions for which he served separate prison terms (Pen. Code, 667.5, subd. (b)). The court sentenced him to prison for 39 years to life.
Court conclude there was sufficient evidence that appellant committed first degree residential robbery and second degree robbery. Appellant claims there was insufficient evidence that he took property from the victims person or immediate presence. Appellant also claims, as to each of counts 3 and 4, that the trial court failed to determine the degree of the robbery as required by Penal Code section 1192. However, our review of the record reveals there was sufficient evidence that appellant took property from the victims immediate presence. Moreover, although robbery is divisible into degrees, neither first degree residential robbery, nor second degree robbery, is divisible into degrees; therefore, Penal Code section 1192, is inapplicable. Because each of counts 3 and 4 was based on the same act, appellant actually stands convicted of a greater offense (count 4) and a lesser included offense (count 3), the remedy for which is reversal of his conviction on count 3. Finally, Court accept respondents concession that appellant is entitled to conduct credit under Penal Code section 4019.

Antonio Arellano Otero was convicted of two counts of assault with a deadly weapon, enhanced with personal use of a firearm. (Pen. Code, 245, subd. (a), 12022.5, subds. (a) & (d).) He was sentenced to concurrent terms of five years in prison, based on the low term of two years, plus three years for the firearms enhancement.
The primary issue is: Could appellant be convicted of assault with a deadly weapon, when he pointed his gun at a security guard and repeatedly tried to fire it, but the gun did not and could not fire, because its safety was still on? That issue is similar to the following issue, presently before the California Supreme Court in People v. Chance (2006) 141 Cal.App.4th 618, review granted November 1, 2006, S145458: Could defendant be convicted of assault with a firearm on a peace officer when his gun was pointing in the opposite direction from the officer and there was no bullet in the firing chamber, or, on such facts, would a battery not have immediately resulted from his conduct and did he lack the present ability to inflict injury within the meaning of Penal Code section 240.
Appellant also raises four issues regarding the instructions, which he contends resulted in cumulative error that deprived him of his right to due process of law under the United States and California Constitutions. Court find no error, and affirm.

Appellant challenges his robbery and assault with a firearm convictions on grounds including the sufficiency of the evidence. Court conclude there was insufficient evidence appellant knew of and shared the intent of the robbers or that he engaged in any conduct, or made any statements that aided, promoted, encouraged or instigated the commission of the crimes.

Defendants and appellants Rapinder Singh Chima (Rapinder), his brother Rajinder Singh Chima (Rajinder), and their mother Palvinder Kaur Chima (Palvinder) (collectively defendants) appeal from a judgment entered following a court trial of plaintiff and respondent Jasbir Singhs (plaintiff) action for breach of contract, common counts, and fraud arising from the alleged failure to repay a promissory note. On appeal, defendants contend that the trial court abused its discretion when it granted plaintiffs motion in limine to bar Rajinders testimony as a discovery sanction without previously having issued an order to comply with discovery. We hold that the trial court erred and reverse the judgment as to Rapinder and Palvinder. Court dismiss the appeal as to Rajinder, who has not raised any issue contesting the default prove-up hearing as to him.

In this timely appeal following his conviction of two felony weapons violations, defendant and appellant Robert Willie Bates raises the following issues: (1) the trial court twice informed the jury of defendants prior robbery conviction, despite defendants stipulation to the existence of the conviction; (2) defendant was not advised of his constitutional rights in connection with his admission of the prior conviction, nor did he waive his rights; (3) because of the defective admission of the prior conviction, the sentence must be vacated; (4) the failure to ask the court to strike defendants prior conviction for sentencing purposes was ineffective assistance of counsel; and (5) the court failed to stay the sentence in count 2 pursuant to Penal Code section 654. Court agree that defendants admission of his prior conviction for sentencing purposes must be reversed and the sentence in count 2 must be stayed pursuant to section 654; in all other respects, there is no reversible error and the judgment is affirmed.

Defendant appeals from the judgment entered following his convictions by jury on count 1 - kidnapping to commit robbery (Pen. Code, 209, subd. (b)(1)), count 2 kidnapping for carjacking (Pen. Code, 209.5, subd. (a)), and count 3 second degree robbery (Pen. Code, 211) with, as to each offense, firearm use (Pen. Code, 12022.5, subd. (a), 12022.53, subd. (b)), on count 4 assault with a firearm (Pen. Code, 245, subd. (a)(2)) with firearm use (Pen. Code, 12022.5, subd. (a)), and count 5 - criminal threats (Pen. Code, 422) with firearm use (Pen. Code, 12022.5, subd. (a)), following the denial of a suppression motion (Pen. Code, 1538.5). The court sentenced appellant to prison for life with the possibility of parole, plus 10 years.
Court conclude the trial court properly denied appellants suppression motion. A detective aware of specific facts providing a reasonable basis to detain suspects in this case prepared a bulletin containing those facts. An undercover officer who saw the bulletin, and later saw appellant and others, believed appellant and the others matched the description of the suspects. That officer caused a third patrol officer to allegedly detain appellant. However, even if appellant was detained, the detention was lawfully based on the bulletin, the undercover officers observations, and the third patrol officers detention of appellant shortly after the undercover officer saw him.

This appeal contests the trial courts order sustaining without leave to amend the demurrer to a second amended complaint. Although the complaint contained several causes of action, it was predicated upon a claim of breach of a written contract. Because the writing is integrated and its terms directly contradict the complaints allegations, the parol evidence rule compels the conclusion that appellant cannot state any valid cause of action. Therefore, Court affirm the trial courts ruling.

Kashaad Brown (Brown) appeals the judgment (order revoking probation) entered following his plea of no contest to possession of cocaine base for sale (Health & Saf. Code, 11351.5). The trial court sentenced Brown to a term of three years in state prison. Court affirm the judgment.

Howard George Wilson appeals from the judgment entered following his plea of no contest to possession of marijuana for sale (Health & Saf. Code, 11359) with an admission that he suffered a prior felony conviction for which he served a separate prison term (Pen. Code, 667.5, subd. (b)), following the denial of a suppression motion (Pen. Code, 1538.5). The court lifted the stay of execution on appellants previously imposed sentence of two years four months in prison. Court accept respondents concession that the trial court erroneously imposed a Penal Code section 1202.45 parole revocation restitution fine.

Dennis Neil Colvin appeals a probate court order which invalidates a testamentary gift from William Hay, the decedent, to Colvin, Hay's domestic caregiver. (Prob. Code, 21350, subd. (a)(6).) Court affirm.

Defendant, Giovanny Antonio Jimenez, appeals from his convictions for: six counts of willful, deliberate, and premeditated attempted murder (Pen. Code, 187, subd. (a), 664); one count of shooting at an inhabited dwelling ( 246); two counts of discharging a firearm from an automobile ( 12034, subd. (c)); and one count of mayhem. ( 203.) Further, defendant appeals from juror findings that he: used a firearm in the commission of the attempted murders, shooting from an automobile, and mayhem; inflicted great bodily injury against the victim named in counts 7 and 10; and all of the offenses were committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(c), 12022.53, subds. (b), (c), (d), 12022.7, subd. (b).) Defendant argues that: there was insufficient evidence to support his convictions as to counts 2, 3, 4, 5, 7, and 8; the prosecutor committed misconduct; and he was denied effective assistance of counsel. We conclude there are a number of sentencing errors which warrant correction. Court affirm with modifications.

P.L. (Mother) is the mother of four children, Angel V. (born September 1998), Athena V. (born June 2002), Vanessa V. and Sabrina V. (both born February 2004). All four children were detained by the Department of Children and Family Services (Department) in November 2004 after Mother was taken into custody by police on a domestic violence charge. The children were initially placed in a foster home. The Department filed a petition on November 17, 2004, pursuant to Welfare and Institutions Code section 300 alleging that there was a history of domestic violence between Mother and her boyfriend, Shawn S. An amended petition alleged substance abuse, domestic violence, and gang membership by Father, in addition to the initial allegations. At an arraignment, the children were placed in the home of their paternal grandmother, Eva R., and her boyfriend Louis S. (collectively referred to as Grandparents).[3] Father was on parole and living with Grandparents. Mother was given monitored visitation and ordered not to have any contact with Shawn S. The amended petition was sustained on January 13, 2005.
For the next 16 months, the children lived with Grandparents. On May 1, 2006, Grandparents filed a request for de facto parent status. On May 30, 2006, after determining that Grandparents were interfering with the reunification process, the Department moved the children into the home of their maternal aunt, Virginia. On June 19, after a hearing on Grandparents petition, the court denied their request. Grandparents appeal from that order. Court reverse.