CA Unpub Decisions

Crisostomo Ibarra appeals a posttrial order awarding expenses to Alex Oropeza that were incurred to prove facts Ibarra had previously denied in response to requests for admissions. Court find no abuse of discretion and affirm.

A jury found appellant Delmos Whitley (appellant) guilty as charged of two counts of second degree robbery. (Pen. Code,[1] 211.) At a bifurcated trial, the court found true the numerous prior convictions alleged in the information as qualifying as serious felonies ( 667, subd. (a)), strikes ( 667, subd. (e), 1170.12, subd. (c)), and prior prison terms ( 667.5, subd. (b)). The trial court sentenced appellant to two consecutive 25 years to life sentences under the Three Strikes law, enhanced 15 years for three prior serious felony convictions, for a total sentence of 65 years to life. On appeal, appellant contends that the trial court erred in denying his request for a jury instruction on the lesser included offense of theft. Appellant also claims that the People committed prosecutorial error which violated his due process rights. Court affirm the judgment.

A tow truck driver employed by his brothers company was terminated for allegedly stealing money from a customers car. The driver had a long history of keeping company money collected from customers, which the driver called borrowing without permission. Following his termination, the drivers brother (and former boss) allegedly told a family member and a prospective employer that the driver was a thief. The driver sued his brother and the company for slander and related claims. The trial court granted defendants summary judgment motion. The court found undisputed evidence that the alleged statements were both true and privileged. Court affirm the judgment.

As a result of a negotiated plea agreement, defendant Goldy Raybon pleaded guilty to two counts of second degree robbery in violation of Penal Code section 211/212.5, subdivision (c), and admitted a prior second degree robbery conviction charged under Penal Code section 667, subdivisions (d) and (e) as a second strike. He was sentenced to 12 years in state prison, filed a timely appeal, but did not file a certificate of probable cause required by California Rules of Court, rule 8.304(b). Defendants counsel filed an opening brief that raises no issues and asks this court for an independent review under People v. Wende (1979) 25 Cal.3d 436. Counsel advised defendant of his right to file a supplemental brief. Court have reviewed the record on appeal and find that there are no meritorious issues to be briefed.

Rene L. challenges a juvenile court order sustaining a Welfare and Institutions Code section 602 petition alleging he committed a lewd act upon a child under the age of 14 years. On appeal and in his petition, supplemental petition and second supplemental petition for writ of habeas corpus, Rene contends his trial counsel rendered ineffective assistance by, among other things, failing to call an eyewitness identification expert, failing to effectively cross-examine the victim and present argument to the juvenile court on the issue of the victims identification of Rene as the perpetrator of the charged offenses, and failing to bring a motion to exclude evidence concerning the victims identification of Rene in a friends yearbook. Court affirm the order and deny the petitions.

Appellant John Deroy Green III challenges his numerous forgery, grand theft, and obtaining money by false pretenses convictions on the grounds of insufficient evidence, lack of jurisdiction, and asserted trial court error in failing to conduct an adequate hearing regarding jury misconduct, failing to respond to a question from the jury during deliberations, denying a request to appoint substitute counsel, sentencing him on two counts each with respect to victims Headlee and Hestmark, and imposing consecutive sentences based on facts not found by the jury.
Court conclude substantial evidence supports appellants conviction pertaining to victim Hestmark. A juror who read about contracts in the courthouse law library did not commit misconduct. The trial court prejudicially erred by ignoring a question from the jury during deliberations. It acted within its discretion, however, by denying appellants motion for substitution of appointed counsel. The court permissibly sentenced appellant on multiple counts pertaining to victims Headlee and Hestmark, as the offenses were committed at widely separated times. Substantial evidence supports a finding of jurisdiction over the crimes against Headlee and Hestmark. Appellants consecutive terms do not violate due process.

A modification decision.

Respondent Steven M. Garber & Associates (Garber) brought an action against appellants Alec Eskandarian (A. Eskandarian), Raffie Eskandarian (R. Eskandarian), New Day Communications, Inc., (New Day), Webnet One Enterprises, Inc., (Webnet), and Global Male Pass.Com (Global) for unpaid attorney fees in the amount of $132,038.32. The trial court granted Garbers motions for terminating sanctions based on appellants failure to respond to discovery propounded by Garber. Appellants appeal from the resulting default judgment. Court affirm.

Plaintiffs, three African-American employees of the City of Los Angeles (City) took a competitive examination for promotion to supervisor. They passed the exam and were placed, with other successful candidates, on a register of eligibles from which supervisors were to be chosen for the next two years. An initial round of interviews was held and four people, not including plaintiffs, were promoted. Thereafter, although further supervisor positions had opened, the City did not conduct additional interviews from the register of eligibles. Instead, the City chose to lower the requirements to sit for the exam, and offered a second exam with the reduced requirements. The Citys decision to reduce the requirements and offer the second examination was apparently made with the intent of enabling one particular employee, Kent Carlson, to sit for the exam and qualify for promotion. Carlson was one of several employees who took the second exam, and whose scores on the second exam were higher than plaintiffs scores on the first exam.
Thereafter, when the City conducted interviews for further promotions, it took candidates from both registers of eligibles, based on the applicants scores. Although all three plaintiffs were eventually promoted, they were promoted after Carlson and others who had taken only the second test. Believing that the second exam was instituted to favor Carlson because he is White, plaintiffs brought suit claiming racial discrimination in the delay of their promotions. Subsequently, one of the three plaintiffs, Lloyd McMillian, was terminated from his supervisory position shortly before the end of his probationary period. Plaintiff McMillian amended his complaint to allege that his termination was in retaliation for his pursuit of the racial discrimination action. The case proceeded to trial and the jury returned a verdict in favor of all plaintiffs on all causes of action. On appeal, the City contends the evidence is insufficient to support the verdicts. We agree in part. While there is substantial evidence to support the conclusion that the second exam was instituted to favor Carlson, there is insufficient evidence to support the conclusion that the City favored Carlson because of his race. Court therefore reverse the judgment insofar as it is based on plaintiffs cause of action for race discrimination.

Appellant Patricia Koch Oshita appeals from an award of attorneys fees in the nature of a sanction entered in the dissolution action of her marriage to respondent Eugene Sturman. We conclude that the trial court did not abuse its discretion in ordering sanctions. Koch Oshita also appeals from an order requiring her to pay three quarters of the fees incurred by counsel appointed to represent the parties child. Koch Oshita raises no cognizable grounds for reversing this order. Court therefore affirm the order making both of these awards.

In 2001, Benjamin Medina was driving his vehicle when he collided with a bicyclist, who was severely injured. A lawsuit followed and Medinas automobile insurer retained a law firm to represent him. The firm assigned the case to Attorney Tod Castronovo. Castronovo was unable to make contact with Medina because Medina had fled to Mexico shortly after being involved in a homicide. Medina did not tell the insurer or Castronovo of his situation or whereabouts. Despite a diligent effort, Medina could not be found. He remained incommunicado throughout the litigation, making it impossible to respond to discovery. A default judgment was entered against him as a terminating sanction. No appeal was filed.
In 2005, Castronovos firm filed this action against Medina and Bhola for malicious prosecution. Bhola responded with a special motion to strike, contending the action was a strategic lawsuit against public participation, or SLAPP. (See Code Civ. Proc., 425.16 (section 425.16).) The trial court denied the motion, concluding that Castronovos firm had made a sufficient showing that the action had merit. Bhola appealed. Court agree with the trial court and therefore affirm.

Service Employees International Union, Local 790 (the Union), appeals from an order denying its petition to compel arbitration of a dispute with the City and County of San Francisco et al. (the City) over City amendments of a job classification that allegedly violate the Citys labor agreements with the Union. Based on the language of the agreements, the San Francisco City Charter (City Charter), and the applicable administrative rules, Court conclude that the dispute is not subject to arbitration and affirm the order.

Michelle Laurenti appeals from an order requiring her to pay all fees billed by a court-appointed evaluator who was disqualified from further service in this family law matter on Michelles successful motion. Michelle contends the evaluator should receive no compensation because he violated court rules by making improper ex parte communications, and he was removed from the matter by the court before he completed his evaluation and made a recommendation. Michelle also contends the trial court erred in failing to determine a reasonable fee for the evaluators services and, instead, ordering Michelle to pay whatever amount the evaluator charged. Court agree with the latter contention. Accordingly, Court reverse the order and remand the matter for the trial court to hold a hearing to determine a reasonable fee, if any, to be paid for the evaluators services and the proper allocation of that fee among the parties.

Jesus Rivera appeals from his conviction of attempted murder, assault with a firearm, and shooting from a motor vehicle. He argues that his conviction for assault with a firearm should be reversed because that crime is a lesser included offense to the offense charged in count 3, discharging a firearm from a motor vehicle, and to the offense charged in count 1, attempted murder. Appellant also argues that the imposition of the upper terms on counts 2 and 3 and the enhancement on count 2 violated his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296. Court find merit in appellants argument that assault is a lesser included offense to discharging a firearm from a motor vehicle, but conclude that it is not a lesser included offense to attempted murder as charged. Court also conclude that any error in the imposition of the upper terms on counts 2 and 3 and the enhancement was harmless beyond a reasonable doubt in light of the factors relating to appellants recidivism, as to which there is no right to jury trial.