CA Unpub Decisions

A modification decision.

Appellant Andy Saberi and respondent Mehdi Zolfaghari invested with others in a television station. Saberi alleges that after Zolfaghari left the station, he made defamatory statements about Saberi in a television broadcast on a rival station. At trial, the jury concluded the allegedly defamatory statements could not reasonably be understood to be about Saberi.
On appeal, Saberi contends the trial court erred when it determined that his defamation claim based on Zolfagharis statements regarding a camera and camera parts was barred because those statements were not specified in his retraction letter. He also argues the court erred in failing to instruct the jury to consider the totality of the circumstances in determining whether the statements were defamatory and in responding to a jury question regarding which evidence they should consider. Court find no prejudicial error and affirm the judgment.

A jury found defendant Gary Leroy Fox guilty of two counts of lewd conduct with a child under the age of 14. (Pen. Code, 288, subd. (a).) The trial court found that defendant had suffered a prior serious felony conviction within the meaning of section 667. Defendant was sentenced to a total of 13 years in prison.
On appeal, defendant argues that he was denied his right to a speedy trial, that his incriminating statements to a correctional officer were made without benefit of a Miranda[warning, and that the trial court erred in failing to grant a new trial after it was learned that the jury had mistakenly been given a verdict form relating to the prior conviction allegation.
Court reject defendants speedy trial argument. However, his remaining arguments have merit. Accordingly, Court reverse.

Defendant was convicted at jury trial of the sale of cocaine base (Health & Saf. Code, 11352, subd. (a)), which occurred during a March 3, 2004, undercover buy operation conducted by the San Jose police in the Fountain Alley area, which Sargent Kevin Abruzzini, an expert on drug sales, described as the last of the open air drug markets . . . [in] San Jose. Defendant was sentenced to three years in state prison.
Defendant appeals, contending that the trial courts denial of his motion for disclosure of the details of the surveillance and the location of the surveilling officer violated his rights to due process, confrontation, and cross-examination under both the federal and California state Constitutions. He requests that this court review the sealed portion of the transcript of the hearing on the motion to ensure that [his] due process rights were protected by the trial courts ruling and the remedy provided and implemented. The People agree and Court have reviewed the transcript.

Considering the fact that January 1, 2007, was a court holiday, appellant filed its notice of appeal within 60 days after a notice of entry of judgment was served by respondents (Cal. Rules of Court, rule 8.104(a)(2).) However, the superior court clerk mailed appellant a file stamped copy of the judgment, with a proof of service, on October 30, 2006, and California Rules of Court, rule 8.104(a) requires timeliness to be calculated based on the earliest notice provided to the appellant. Because the notice of appeal was filed more than 60 days after the superior court clerk mailed appellants counsel a file stamped copy of the judgment, this court is without jurisdiction to consider the appeal. (Cal. Rules of Court, rule 8.104(a)(1) & (b); Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667.) Court therefore grant respondents motion to dismiss the appeal.

In this decade long case, a homeowner cross-complained for bodily injury and property damage relating to termite extermination and other home repairs in his condominium complex. Cross defendants are the homeowners association, fellow condominium unit owners, their insurers, and executives of the business manufacturing the pesticide. In an earlier appeal, this court affirmed the sustaining of demurrers by certain cross-defendants to the cross-complaint without leave to amend. The homeowner now appeals the trial courts sustaining of demurrers to the second and fifth amended cross-complaints, grant of summary judgment, and denial of his motion to tax costs. The homeowners association appeals the trial courts denial of its motion for attorneys fees. The insurer for the homeowners association additionally moves for sanctions. Court stay the appeal as to one of the insurers, whose liquidation is pending, and otherwise affirm the judgment and orders.

Plaintiff appeals from a judgment in favor of defendants Patrick K. Glenn, Neal Kaufman, Cipora Kurtzman, Harry Kurtzman, and Arthur Schwartz. The judgment was entered by the trial court after the Court of Appeal (Division Seven of the Second Appellate District) filed an unpublished opinion reversing a money judgment in favor of Frankston. In the current appeal, Court review the trial courts order denying Frankstons motion for a new trial, in which Frankston contended that newly discovered evidence existed which was not considered in the prior appeal and warranted a new trial. Court conclude that Frankstons motion for a new trial, and indeed this appeal, are merely efforts to revisit the issues already determined in the prior appeal. The law of the case doctrine forecloses Frankston from obtaining such reconsideration. Accordingly, Court affirm the judgment entered by the trial court.

Two police officers brought suit against their lieutenant, the City of Inglewood and the Inglewood Police Department asserting claims of discrimination based on race and/or national origin, harassment based on their race or national origin, and retaliation for having complained about racially derogatory comments their lieutenant made nearly a decade earlier. The trial court granted summary judgment in favor of their lieutenant, only, and dismissed him from the action. The trial court reasoned the lieutenants racial slur was an isolated incident, and insufficient in itself to create a hostile working environment as a matter of law. The court also found no causal nexus between the officers protected activity in complaining about their lieutenants racial slur and the allegedly adverse employment actions occurring years later. Court affirm.

Defendant and appellant appeals from the judgment entered following a jury trial that resulted in his conviction of two counts of sexual battery and filing a false police report. He contends: (1) the trial court prejudicially erred in excluding evidence relevant to the victims credibility; (2) he was denied a right to a fair trial as a result of the jurys receipt of extrajudicial information. Court modify the judgment and otherwise affirm.

Appellant challenges his attempted murder and aggravated assault convictions on the grounds the trial court erroneously refused his request for instruction upon attempted voluntary manslaughter as a lesser included offense and his trial attorney rendered ineffective assistance. Court conclude the court was not required to instruct upon attempted voluntary manslaughter because the evidence did not support a heat of passion theory. Although defense counsel should have objected to certain portions of the gang experts testimony, appellant failed to establish prejudice.

Appellant appeals from a judgment of dismissal entered after a demurrer was sustained without leave to amend. Respondent Dennis Michael had demurred on the ground that the action was barred by the doctrines of res judicata and collateral estoppel. Upon concluding that collateral estoppel is inapplicable and res judicata operates to bar the action, Court affirm the judgment.

Defendant appeals from the judgment entered following his plea of no contest to petty theft with a prior (Pen. Code, 666), made after the trial court denied his suppression motion ( 1538.5). The trial court sentenced Dawkins to a prison term of two years. It further imposed a restitution fine, a suspended parole revocation fine, a court security assessment, and a crime prevention fee. Defendant contends the trial court erred by denying his suppression motion. Court affirm.

Appellant was convicted by a jury of the murder of David Anthony Lyles. (Pen. Code, 187, subd. (a).)[1] The jury also found that a principal personally used and discharged a firearm, causing great bodily injury and death ( 12022.53, subds. (b), (c), (d), and (e)), and that the murder was committed for the benefit or at the direction of a criminal street gang ( 186.22, subd. (b)(1)(A)). Appellant was sentenced to 50 years to life in state prison. He appeals, contending that the court erred by refusing to admit evidence of a witnesss prior inconsistent statement, denying his motion for mistrial, and refusing to allow a defense witness to testify as a gang expert, and that the cumulative effect of the above errors deprived him of a fair trial and his constitutional right to due process. Court affirm.

The sole claim of error in this appeal is that imposition of the upper term sentence violated appellants federal constitutional rights to a jury trial and proof beyond a reasonable doubt under the Sixth Amendment and Blakely v. Washington (2004) 542 U.S. 296. Court find no constitutional violation and affirm the judgment.