CA Unpub Decisions

Ana Raymond appeals from the judgment entered following a jury trial in which she was convicted of attempted carjacking with a finding that she used a deadly weapon in the commission of the offense, assault with a deadly weapon, and dissuading a witness by force or threat. She contends the trial court erred in rejecting her argument that, after initially waiving Miranda, she invoked her right to remain silent when she failed to respond to a specific question, thereby precluding any comment on her silence. Defendant further contends that imposition of an upper term sentence violated Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham). Court affirm.

Appellants claim the trial court committed several instances of evidentiary error that prejudiced their right to a fair trial. Court reject these contentions and affirm the judgment.

Appellant Henry Vasquez appeals from a judgment entered after a jury found him guilty of count 1, murder (Pen. Code, 187, subd. (a)); count 2, attempted murder ( 664, subd. (a); 187); count 3, lesser offense of attempted voluntary manslaughter ( 192, subd. (a); 187); count 4, shooting at an inhabited dwelling ( 246); count 5, inflicting willful harm or injury to a child ( 273a, subd. (a)); and counts 6 and 7, assault with a firearm ( 245, subd. (b)). The jury found true the allegations that appellant had personally discharged a firearm in counts 1 and 2 ( 12022.53, subds. (b)-(d)); appellant personally inflicted great bodily injury in commission of counts 2 and 6 ( 12022.7, subd. (e)); appellant personally used a firearm in counts 6 and 7 ( 12022.5, 12022.53, subd. (b)); and that appellant personally discharged a firearm in counts 3, 4, 6 and 7. The jury found not true the allegation that count 2 was committed willfully, deliberately, and with premeditation.

Juan Pacheco appeals from the judgment entered following his conviction by jury on two counts of attempted second degree robbery and two counts of attempted extortion, with findings the offenses were committed for the benefit of, at the direction of or in association with a criminal street gang. Pacheco contends that he was sentenced in violation of his right to jury trial under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court agree with Pacheco and impose a midterm sentence instead of the upper term on one count for a reduction of one year in his aggregate sentence.

Defendant and respondent Tom Merchant, a Medi-Cal fraud investigator for the California Department of Health Services, conducted an investigation that led to the criminal prosecution of plaintiff and appellant Marjorie Chin. After the prosecution dismissed the criminal action, Chin sued Merchant for federal civil rights violations (42 U.S.C. 1983 (section 1983)), malicious prosecution, false arrest, and intentional infliction of emotional distress. The trial court entered judgment for Merchant after sustaining his demurrer to the malicious prosecution and emotional distress claims based on a governmental immunity statute (Gov. Code, 821.6) and granting his motion for summary judgment of the section 1983 and false arrest claims. Court affirm.

Appellant appeals from judgment entered following a jury trial in which he was convicted of assault with intent to commit rape. (Pen. Code, 220.) Sentenced to the middle term of four years, he challenges the sufficiency of evidence to support his conviction and contends the prosecutor committed prejudicial misconduct. For reasons stated in the opinion, Court affirm the judgment.

Plaintiff Rochelle Tesoriero (Tesoriero) appeals from summary judgment in favor of defendant James R. Eliaser (Eliaser) in her action for legal malpractice which arose out of Eliasers representation of Tesoriero in a marital dissolution action. She also challenges on appeal the trial courts sustaining of a demurrer, without leave to amend, as to her cause of action for breach of fiduciary duty. We conclude that the trial court properly granted summary judgment, because Tesoriero failed to raise a triable issue as to whether, but for Eliasers alleged negligence, Tesoriero would have achieved a more favorable result in the dissolution action. Court further conclude that Tesoriero did not, and cannot, plead a cause of action for breach of fiduciary duty. Therefore, Court affirm.

Johnny C. appeals from an order committing him to the California Youth Authority (CYA). He contends the order of commitment was internally inconsistent and therefore confusing as to his maximum term of physical confinement and award of predisposition credits. Court remand for the juvenile court to recalculate the award of predisposition credits, but otherwise affirm the order of commitment.

A jury convicted appellant, Francois Ghoghas, of one count of attempted second degree robbery[1]while using a deadly and dangerous weapon, a knife.[2] He appeals his conviction, claiming the court erred in denying his motion for mistrial because it was an incurably prejudicial error for the investigating officer to mention he checked the police departments computer for appellants prior contacts. Appellant also asserts the courts order requiring him to reimburse the county $6,856.45 in legal fees and $734.36 in investigative costs must be reversed because the court imposed its order without notice, a hearing or findings regarding his ability to pay, and thus in violation of the statutory requirements for assessing the cost of court-appointed legal representation. Court find, and the People agree, appellants latter argument has merit. Accordingly, Court vacate the order assessing attorney fees and costs and remand to the trial court to conduct a noticed hearing on appellants current ability to pay such fees and costs consistent with the statutory mandates. Court affirm the judgment in all other respects.

Holding his snarling German shepherd by the leash, appellant Bahman Khodayari chased an animal control officer off the property of his auto repair shop. He then refused to cooperate with police officers who arrived to investigate what had happened. Count 1 of the information originally charged him with a felony, assault with a deadly weapon, a dog, but the charge was reduced to a misdemeanor before the trial. He was convicted on count 1 and on two other misdemeanor counts; assault on an animal control officer and obstruction of a police officer. The trial court suspended imposition of sentence and placed him on summary probation for 36 months, with 180 days in county jail.
Appellant contends: (1) The evidence failed to establish that he committed an assault with a deadly weapon. (2) His trial counsel should have moved to suppress the observations of the officers who went onto his property to arrest him. (3) The trial court should not have refused to allow members of his family to speak at the sentencing hearing. Court find no error, and affirm.

Appellants, five plaintiffs in a personal injury action, appeal from an order granting respondents relief under Code of Civil Procedure section 473, subdivision (b) (hereafter section 473(b)) after judgment had been entered in appellants favor based on their acceptance of respondents section 998 settlement offers. In this appeal appellants claim the trial court erred in granting respondents relief because the court: (1) lacked jurisdiction to consider the section 473 motion; and (2) erred in finding the mistakes in the 998 offers were excusable and in determining respondents were diligent in seeking relief. As we shall explain, the trial court had authority to consider the section 473 motion. In addition, the court did not abuse its discretion in finding that the section 998 offers contained errors which resulted from respondents counsels excusable neglect and therefore properly granted the motion for relief. Consequently, Court affirm.

A contract for the purchase and sale of residential property contained a mediation clause. Under the contract, a request for mediation before the commencement of litigation was a condition precedent to the recovery of attorney fees. The buyer of the property filed a lawsuit without first seeking mediation, but promptly dismissed the action and sought mediation for several months. The seller refused the buyers repeated mediation requests, and the buyer then filed a second action in which he was the prevailing party. Court hold the mediation clause does not bar the buyer from recovering attorney fees incurred in prosecuting the second lawsuit, and the trial court erred in refusing to award fees on that ground.

Defendant appeals from a judgment sentencing him to six years in state prison after a jury found him guilty of receiving stolen property, a violation of Penal Code section 496. Court affirm the judgment.

This case arises out of the identity theft of appellant Robert Eiseman (Eiseman). Approximately one month after Eiseman purchased a car from respondent Power Toyota Irvine (PTI), Armando Corral (Corral) was arrested in Arizona for misrepresenting himself as Eiseman. Believing that PTI was the source of his identity theft, Eiseman and his mother, Anne Eiseman (Anne), initiated this lawsuit against PTI and others,[1]alleging negligence, invasion of privacy, and related causes of action. The trial court granted Toyotas motion for summary judgment, finding no triable issue of fact as to any cause of action. Eiseman and Anne appeal, contending that the trial court erred in (1) failing to rule on their request for a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h); and (2) finding no triable issue of material fact.
Court affirm in part, reverse in part and remand the matter with directions. With respect to the Business and Professions Code section 17200, identity theft, conspiracy, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and invasion of privacy causes of action, we reverse the trial courts order granting Toyotas motion for summary judgment. In connection with these causes of action, the trial court erred in implicitly denying appellants request for a continuance pursuant to section 437c, subdivision (h). However, the evidence that appellants seek to obtain is irrelevant to Eisemans claim for fraud; thus, a continuance with respect to that cause of action was not required. Because Eiseman failed to establish a triable issue of material fact as to this cause of action, the trial courts order granting summary adjudication of the fraud cause of action is affirmed.