CA Unpub Decisions

Shannon Tang appeals from an order modifying the amount of child support she receives for her child by Peter Dobias. Although the courts order did obligate Dobias to pay an increased amount of support, Tang contends that increase was insufficient, because the court erroneously imputed income to her without sufficient evidentiary support. Notwithstanding the narrowness of that issue, Tang has devoted three pages of her factual statement (out of a total of five), to documenting her claim that Dobias blatantly lied about his own income in connection with a hearing held in March of 2002.
That assertion is utterly irrelevant to the issue at hand; and it is frankly a bit insulting to this court to see it so prominently featured in Tangs opening brief. Whats more, if we were inclined to consider extraneous character issues in connection with this appeal (and we are not), the issue we would choose to focus on is the allegation that Tang herself had attempted to hire someone to kill, or perhaps merely hurt, Dobias wife. Although that suggestion seemed, at first blush, to be outlandish, we discovered that the trial court actually found it credible.[2]Under these circumstances, Tangs attempt to smear Dobias with irrelevant allegations of wrongdoing seems very much like a rock in a glass house.
Turning to what is at issue in this appeal, Court conclude the trial court did not err in imputing the income to Tang. The evidence was undisputed that Tang signed a loan application which reflected the amount of income imputed to her, and although she claimed the application was blank when she signed it, and that she had never authorized the amount of income reflected upon it, the evidence on the point was conflicting; the court was not required to believe her testimony. The order is therefore affirmed.

Defendant Ali Tazerouni appeals from a judgment after default. He argues the trial court erred by denying his motion for relief from default and subsequent motion for reconsideration. He also challenges the judgment itself, arguing that plaintiff Natalie Mottaghis complaint did not provide him with sufficient notice and failed to state a prima facie case as to any cause of action. Finally, Tazerouni claims that the judgment would permit Mottaghi to recover twice. Court find that none of these contentions have merit and affirm the judgment.

Defendant Milad Ragheb Demetry was convicted of misappropriation of public funds, grand theft, and access to and use of a computer to commit fraud. The trial court sentenced defendant to the upper term sentence for misappropriation, added a consecutive sentence for an enhancement based on the jurys finding that the value of property taken was in excess of $50,000, and ordered defendant to make victim restitution in the amount of $104,576.19.
On appeal, defendant argues his sentence is constitutionally improper, because the trial court imposed the upper term sentence based on aggravating factors that were not found by the jury beyond a reasonable doubt. We agree, and remand the matter for resentencing by the trial court. (Cunningham v. California(2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).) Three of the four aggravating factors on which the trial court relied to impose the upper term sentence defendants position of leadership or dominance over other participants in the crime; the level of planning, sophistication, and professionalism in committing the crime; and whether defendant took advantage of a position of trust or confidence were required to be found by the jury beyond a reasonable doubt.
The Attorney General argues the jurys findings under Penal Code sections 1203.045 and 12022.6 the amount of the theft exceeded $100,000, and the property taken exceeded $50,000 in value are equivalent to a jury finding on the fourth aggravating factor the crime involved an actual taking of great monetary value (Cal. Rules of Court, rule 4.421(a)(9)). Even if we were to accept this argument, the record does not clearly reflect the amount of weight the trial court placed on any of the aggravating factors; therefore, Court cannot say beyond a reasonable doubt that the court would have sentenced defendant to the upper term based only on California Rules of Court, rule 4.421(a)(9). Remand for resentencing is required.
Additionally, defendant requests the judgment to be modified to specify his liability for restitution to the victim is joint and several. Because a trial court may make a restitution order joint and several, and the court clearly intended to do so in this case, Court order the judgment modified. As so modified, the judgment is affirmed.

Minors claim there was no evidence when the primary activities had occurred conflicts with the record. His reliance on People v. Perez (2004) 118 Cal.App.4th 151 is ill-founded because the expert there never testified about the gangs primary activities. (Id. at p. 160.) The same was true in In re Alexander L. (Apr. 9, 2007 G036595) Cal.App.4th [2007 WL 1041431], where the expert never specifically testified about the primary activities of the gang. He merely stated he kn[e]w that the gang had been involved in certain crimes. . . . He did not directly testify that criminal activities constituted [the gangs] primary activities. (Id. at p. __ [p. *3].) The judgment is affirmed.

The juvenile court sustained allegations that minor Michael M. unlawfully possessed a deadly weapon (Pen. Code, 12020; all statutory references are to this code) and engaged in street terrorism ( 186.22, subd. (a)). It also sustained an allegation that minor committed the offense for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). The court found count 1 was a felony.
Minor appeals, contending the street terrorism count must be reversed because section 186.22, subd. (a) applies only to aiders and abettors and there was no evidence of such conduct on his part. He further argues his motion to exclude his confessions should have been granted based on violations of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda), and finally that the condition of probation forbidding him to wear items denoting gang affiliation is unconstitutionally vague.
Court affirm the judgment. Minors first two assertions are not persuasive. However, we agree the condition of probation is too vague and modify the probation order to bar him from wearing apparel known to him to be associated with gang membership or affiliation.

Appellant Abdul Hakeem was injured in an auto accident on April 9, 2003, and received treatment at West Anaheim Medical Center. Hakeem claimed that the hospital failed to provide a minimum standard of care, and brought a medical malpractice suit, in propria persona. On April 13, 2006, the hospital moved for summary judgment pursuant to Code of Civil Procedure section 437c. The motion was supported by expert testimony. Hakeem, although explicitly informed that he must provide an expert witness to oppose the motion for summary judgment, failed to present any expert testimony as to the standard of care of the nursing staff. Hakeems not having proffered any expert testimony on the issue of the standard of care to establish an element of his cause of action (breach of that standard of care), the judgment against him must be affirmed.

Harry Chowbey appeals from an order denying his motion to compel arbitration of a breach of contract claim contained in a lawsuit filed by Victorville Aerospace, LLC (hereafter VAL). Court find the court correctly interpreted the contract, and affirm the order.

A jury convicted defendant Jose Luis Varelas of two counts of felony infliction of corporal injury on the mother of his child (Pen. Code 273.5, subds. (a) & (e)), two counts of misdemeanor false imprisonment ( 236, 237), and one misdemeanor count of violating a protective order ( 273.6, subd. (a)) arising out of events that occurred on separate occasions in October 2003 and October 2004. The jury also found true enhancement allegations that defendant had a prior conviction for domestic violence when he committed the 2003 offense and that he was on bail when he committed the 2004 offenses. The jury acquitted defendant of one count of assault with a deadly weapon (a hammer, 245, subd. (a)(1)) arising out of the 2003 incident and two counts of making criminal threats ( 422). In a bifurcated proceeding, the court found true enhancement allegations that defendant had two prior convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12).
The court denied defendants motion for new trial and his Romero[2] motion. The court sentenced defendant to 25 years to life on both of the infliction of corporal injury counts, for a total term of 50 years to life. The court also sentenced defendant to 90 days in jail on each of the misdemeanor false imprisonment and violation of a protective order counts, to run concurrent with each other and the other sentences imposed in the case. The court stayed punishment for the on-bail enhancement ( 12022.1, subd. (d)).
On appeal, defendant contends the court erred when it refused to dismiss Juror No. 10, when it permitted the prosecution to introduce expert evidence regarding battered womens syndrome, when it denied defendants request to present evidence regarding the victims psychiatric problems, when it denied defendants motion for new trial, when it failed to strike one or both of his prior strike convictions, and when it failed to dismiss rather than stay the on-bail enhancement ( 12022.1). He also claims his counsel was ineffective when he failed to challenge venue on counts 6, 7, and 8. Court find no error and affirm the judgment.

A jury convicted defendant Jeffery Allen Rynhard of 15 counts of lewd and lascivious conduct with a child under 14. (Pen. Code, 288, subd. (a).) The trial court sentenced defendant to 34 years in prison, which involved the trial courts reliance on aggravating facts so as to impose consecutive sentences. It also imposed a $70 AIDS education fine and a related $119 penalty assessment. On appeal, defendant contends that (1) the trial courts imposition of the consecutive terms violated his constitutional right to have his sentence based only on facts found by a jury (Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296), and (2) the trial court erred by imposing the fine and assessment. The People concede defendants second point, and Court agree that the concession is appropriate. Court otherwise disagree with defendant. Court therefore modify the judgment and affirm.

On August 18, 2005, a felony complaint charged defendant Jorge Arturo Jimenez with two counts each of aggravated sexual assault on a child (Pen. Code, 269),[1]lewd acts on a child ( 288, subd. (a)), lewd acts on a child by force ( 288, subd. (b)(1)), and continuous sexual abuse of a child ( 288.5). Pursuant to a negotiated plea, defendant pleaded no contest to three counts of aggravated sexual assault on a child[2] and one count of committing a lewd act on a child with force. As agreed, the court dismissed the remaining counts and sentenced defendant to 51 years to life. Defendant contends on appeal (1) that the trial court abused its discretion in denying his post-plea Marsden[3] motion and (2) that he was denied the effective assistance of counsel in his attempt to withdraw his no contest plea. Court affirm the judgment.

Appellant was convicted of first degree murder, robbery, kidnapping for purposes of robbery, kidnapping for purposes of carjacking, simple kidnapping, carjacking, and child endangerment based upon having her baby present during the commission of the other crimes. (Pen. Code, 187, 207, subd. (a), 209, subd. (b), 209.5, subd. (a), 211, 212.5, subd. (a), 215, 273a, subd. (a).) She contends: (1) her Miranda rights were violated; (2) her prison sentence of 25 years to life constitutes cruel and unusual punishment; (3) the conviction for simple kidnapping must be reversed; and (4) her conviction for child endangerment must be reversed, for lack of a proper showing of the corpus delicti of that crime. Court agree that the conviction for simple kidnapping must be reversed, but affirm the remainder of the judgment of conviction.

Darren Andrew Petricka was convicted, following a jury trial, of two counts of genital penetration by a foreign object, one count of felony false imprisonment, and three counts of sexual battery by restraint. On appeal, he contends (1) the trial court erred in admitting testimony regarding a prior sexual offense committed by appellant; (2) there was insufficient evidence to support his conviction on the digital penetration counts and one sexual battery count; (3) there was insufficient evidence to support his conviction for felony false imprisonment; (4) conviction on insufficient evidence denied appellant due process of law; (5) the trial court erred by failing to instruct sua sponte on the defense of reasonable belief in consent; (6) defense counsel was ineffective for failing to move for a new trial based on insufficient evidence; (7) the jury should have been required to decide beyond a reasonable doubt whether the two incidents of genital penetration took place on separate occasions; (8) the evidence did not support a finding that the genital penetrations occurred on separate occasions; (9) the courts alternative choice, to exercise its discretion to impose full consecutive sentences on the two genital penetration counts, was contrary to law and an abuse of discretion. Court affirm the judgment.

Angelo Mallamo appeals following his conviction by jury trial for robbery (Pen. Code, 211) and possession of methamphetamine while armed (Health & Saf. Code, 11370.1, subd. (a)). On appeal, he contends the trial court erred in allowing amendment of the information after he testified at trial and in using a juvenile adjudication to impose a doubled sentence pursuant to the Three Strikes law. Court modify the judgment and affirm it as so modified.

Defendant was convicted of attempted murder, aggravated kidnapping, assault with intent to rape, and other charges. He admitted that he picked up a hitchhiker, attempted unsuccessfully to immobilize her with a stun gun, and, after she jumped from the car, shot her with a handgun. Defendant contends that the evidence was insufficient to support his convictions for kidnapping with intent to rape and assault with a stun gun and that the trial court erred in admitting certain evidence and instructing with CALJIC No. 2.50.01. Court reverse the conviction for assault with a stun gun, but Court affirm the judgment in all other respects.