CA Unpub Decisions

Appellant was tried before a jury and convicted of selling cocaine base. (Health and Saf. Code, 11352, subd. (a).) He was sentenced to prison for the four year upper term, doubled to eight years due to his admission of a prior serious felony conviction under the Three Strikes law. (Pen. Code, 1170.12, subd. (c)(1).) Appellant contends the judgment cannot stand because one of the jurors did not understand English well enough to comprehend the evidence or to properly deliberate. Court agree and reverse.

Defendant originally pled guilty to two counts of selling cocaine (Health and Saf. Code, 11352). Execution of the imposed sentence of six years, four months, was suspended and he was granted probation. Subsequently, Alvarez was arrested on a new drug charge which led both to his conviction for possessing cocaine (Health and Saf. Code, 11350) and to the revocation of his probation. Alvarez now appeals from both the new conviction and the revocation of his probation.
The judgments are affirmed.

Defendant timely appealed his conviction for possession of a controlled substance (methamphetamine) (count 1) and being under the influence of a controlled substance (methamphetamine) (count 2). Defendant admitted prior strike and prior prison terms allegations. The court sentenced defendant to a total of five years on count 1 and a concurrent one year on count 2. Defendant contends the court erred when it denied his Batson/Wheeler motion and when it admitted certain statements he made. Court affirm.

Plaintiff filed a complaint for legal malpractice, breach of fiduciary duty, and unfair competition against the law firm of Ziffren, Brittenham, Branca, Fischer, Gilbert-Lurie, Stiffelman & Cook LLP and three of its attorneys (collectively, the law firm). Plaintiff alleges that the law firm created, and then dissolved, a closely held corporation for plaintiff and defendant Perla Hudson (Perla) without disclosing that it represented Perla and her husband, defendant Saul Hudson (Saul), in other matters. The trial court sustained the law firms demurrer to the first amended complaint without leave to amend, concluding that plaintiff had not sufficiently pled the elements of any of her causes of action. Plaintiff appeals, and court affirm.

A jury convicted defendant of second-degree vehicular burglary. (Pen. Code, 459, 460; all further section references are to the Penal Code.) Hernandez later admitted having one strike and two prison term prior felony convictions. ( 667, subds. (b) (i), 1170.12; 667.5, subd. (b).) The court imposed an aggregate 4 year sentence.
Defendant appeals, contending that (I) the court erred in refusing to strike some of the victims testimony as a sanction for an alleged prosecution discovery violation; (II) his counsel was ineffective for failing to object to (A) the use of hearsay evidence to support a gang experts testimony, and (B) the prosecutors argument allegedly misstating the law regarding the lesser included crime of auto tampering; (III) the court erred in failing to give a clarifying instruction regarding auto tampering sua sponte; and (IV) the court prejudicially erred in effectively excising portions of CALCRIM No. 226 (Fall 2006 ed.; all further CALCRIM references are to the Fall 2006 ed.) regarding witness credibility. Court reject these contentions and affirm the judgment.

A jury convicted defendant and appellant of one count of resisting an executive officer (Pen. Code, 69). Court hold that (1) the trial court did not abuse its discretion by refusing to grant a continuance to permit defendant to conduct Pitchess[2]discovery, and (2) the trial court did not err in admitting evidence relating to a set of car keys found in defendants possession. Court therefore affirm defendants conviction.

Appellant was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegation that appellant personally used a deadly or dangerous weapon in the commission of the offense within the meaning of section 12022, subdivision (b)(1). The trial court sentenced appellant to a total term of 26 years to life in state prison.
Appellant appeals from the judgment of conviction, contending that his conviction violates double jeopardy. He further contends that the trial court erred with respect to expert testimony. Court affirm the judgment of conviction.

Defendant was charged with being a felon in possession of a firearm in violation of Penal Code, section 12021, subdivision (a)(1), and illegal possession of ammunition in violation of section 12316, subdivision (b)(1). As to both counts, it was alleged that defendant suffered one serious or violent felony conviction under the three strikes law ( 1170.12, 667, subds. (b) (i)), and that he served six prior prison terms ( 667.5, subd. (b)). The jury acquitted defendant of the firearm count, but found him guilty of the ammunition count. In the bifurcated proceeding on the prior conviction allegations, defendant waived his constitutional trial rights and admitted the convictions. The trial court imposed a nine year prison term comprised of the two year middle term for the ammunition possession offense, doubled under the three strikes law, plus five years for the prison term enhancements.
In his timely appeal, defendant contends there was constitutionally insufficient evidence to support his conviction and the trial court prejudicially erred in failing to instruct the jury sua sponte that it must unanimously agree on the conduct that supported the convictionpossession of either the shotgun shells or the handgun rounds found in the trailer defendant shared with his father. Court reject the first contention. As to the second, court find the unanimity instruction was warranted, but the error was harmless under the circumstances.

The classification of plaintiff's original complaint as "limited" has no bearing on the jurisdiction of the court to hear the case; it simply reflects the fact that the amount in controversy was less than $25,000. (Code Civ. Proc., 403.070.) Code of Civil Procedure section 403.070 states "(a) An action or proceeding that is reclassified shall be deemed to have been commenced at the time the complaint or petition was initially filed, not at the time of reclassification. (b) The court shall have and exercise over the reclassified action or proceeding the same authority as if the action or proceeding had been originally commenced as reclassified, all prior proceedings being saved. The court may allow or require whatever amendment of the pleadings, filing, and service of amended, additional, or supplemental pleadings, or giving of notice, or other appropriate action, as may be necessary for the proper presentation and determination of the action or proceeding as reclassified."
In short, plaintiff's assertion that Judge Klein is a "limited" jurisdiction judge without jurisdiction to entertain an "unlimited" action is simply wrong.
The dismissal of plaintiff's complaint is affirmed.

The jury found defendant guilty of the willful, deliberate, and premeditated attempted murder of Lateef Williams and Orsi Aguirre in violation of Penal Code, sections 664, subdivision (a) and 187, and shooting at an occupied motor vehicle in violation of section 246. As to all three offenses, the jury found true the special firearm allegationsthat defendant personally and intentionally discharged a firearm causing great bodily injury to both victims ( 12022.53, subds. (b) (d), 12022.7, subd. (a)) and the allegation that each offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)). The trial court imposed concurrent terms of 40 years to life for the attempted murder convictions (life terms for the underlying offense, plus 25 years to life for the personal use of a firearm enhancement, and 10 years for the gang enhancement). Defendants five year middle term sentence for the section 246 conviction was stayed under section 654.
In his timely appeal, defendant contends (1) there was constitutionally insufficient evidence to support his conviction for shooting at an occupied vehicle and (2) the trial court prejudicially erred in giving the CALJIC No. 2.90 pattern instruction defining reasonable doubt without an additional clarifying instruction defendant proposed. Court reject both contentions and affirm.

Minor J.P. appeals from an order declaring him a ward of the court under Welfare and Institutions Code section 602 after the juvenile court sustained a petition alleging that he was unlawfully in possession of a switchblade knife in violation of Penal Code section 653k, a misdemeanor. J. was ordered home on probation with a maximum term of physical confinement of six months.
Minor contends the juvenile court erred in denying his motion to suppress evidence of the switchblade knife because the police had no reasonable belief a pat down search for weapons was required and the search was not incident to an arrest. Court hold that the search was lawful incident to his arrest for violation of the local truancy ordinance found in Huntington Park Municipal Code section 5 - 10.02. The judgment is affirmed.

A jury found defendant guilty of arson of an inhabited structure. In a bifurcated proceeding, the jury then found true allegations that Williams had suffered two prior Massachusetts convictions for serious or violent felonies. Williams moved for a new trial on the prior conviction allegations, contending, inter alia, that the court committed instructional and evidentiary errors. The trial court concluded it had erred, and granted Williamss new trial motion. Plaintiff and appellant the People of the State of California appeal the new trial order, contending that any error was harmless. Court agree with the People, and accordingly order the new trial order reversed.

Appellant sued Verizon Communications, Inc. (Verizon) for wrongful termination in violation of the California Family Rights Act, Government Code section 12945.2 (CFRA). The trial court granted summary judgment in favor of Verizon on the ground that Verizon had a reasonable, good faith belief that Rankins had submitted fraudulent documentation in support of her request for medical leave. Court affirm.

A jury convicted defendant and appellant of four countsconspiring to possess cocaine base for the purpose of sale, specifically finding true the three alleged overt acts (Health and Saf. Code, 11351.5; Pen. Code, 182, subd. (a)(1)); possessing cocaine base for the purpose of sale (Health and Saf. Code, 11351.5); forging a public seal (Pen. Code, 472); and forging a vehicle registration document (Veh. Code, 4463, subd. (a)). As to the narcotics related counts, the jury found that the crimes were committed for the benefit of a criminal street gang (Pen. Code, 186.22). The trial court imposed a five year prison term, consisting of the lower term of three years for the cocaine possession conviction, plus two years for the gang enhancement. Sentence on the conspiracy count was stayed pursuant to Penal Code section 654. The trial court imposed concurrent two year, middle term sentences for both forgery convictions.
In his timely appeal, defendant contends: (1) there was constitutionally insufficient evidence to support his cocaine possession conviction; (2) there was constitutionally insufficient evidence to support the criminal street gang findings; (3) trial counsel rendered constitutionally ineffective assistance by failing to object to testimony by the prosecutions expert witness; (4) the trial court prejudicially erredand violated his right to a fair trial under the federal Constitutionby instructing the jury pursuant to CALJIC No. 2.28 that the defense violated its reciprocal discovery obligations; and (5) the trial courts imposition of concurrent sentences for the two forgery counts violated Penal Code section 654s proscription against multiple punishments. Court disagree with the first four contentions, but find merit in defendants final contention. Court order the trial court to stay the sentence in one of the two forgery counts, and otherwise affirm the judgment.