CA Unpub Decisions

Defendant appeals from a judgment in a legal malpractice action in favor of his former client, plaintiff Edward J. Dempsey. Matthews challenges the sufficiency of the evidence to support the judgment. The question is whether the evidence presented at trial supports the court's decision. "In reviewing the evidence, court must resolve all conflicts in favor of the verdict, and indulge in all reasonable and legitimate inferences in order to uphold the verdict. [Citation.]" (Muzquiz v. City of Emeryville(2000) 79 Cal.App.4th 1106, 1120.) Court conclude the record supports the court's verdict and therefore affirm the judgment.

Defendant was convicted by jury trial of aggravated assault by a prisoner (Pen. Code, S 4501), and an allegation that he had personally used a deadly weapon in the assault was found true. He admitted that he had suffered a prior serious felony conviction (Pen. Code, SS 667, subd. (a)(1), 1170.12). The trial court committed defendant to state prison for a term of 13 years. On appeal, defendant contends that reversal is required because he was physically restrained at trial. Court conclude that this contention was forfeited by defendant's trial counsel's failure to object, and defendant has failed to show that his trial counsel's failure to object was prejudicial. Court therefore affirm the judgment.

Appellants ( plaintiffs) brought a declaratory relief action against respondent Assurance Company of America (Assurance) seeking to establish the insurance policy limits applicable to their personal injury claims. To resolve the matter, the parties filed cross motions for summary judgment. Assurance argued that the applicable policy limits were $1 million, while plaintiffs argued that the applicable policy limits were $2 million. The trial court granted Assurance's summary judgment motion and denied plaintiffs' motion, ruling as a matter of law that the applicable policy limits were $1 million under the hired and non-owned automobile liability coverage included in the Assurance commercial general liability policy.
On appeal, plaintiffs contend that the trial court erred because the Assurance policy provisions pertaining to the policy limits for hired and non owned automobile liability coverage are ambiguous and must be construed against Assurance to provide $2 million in coverage for plaintiffs' claims. For reasons that court explain, court disagree and therefore court affirm the judgment.

In an earlier appeal from defendant's convictions for attempted robbery and burglary (Pen. Code, SS 213, 459/460), this court reversed the judgment and remanded the cause to the trial court for the possible retrial of a prior conviction and for resentencing, with directions. On remand, defendant admitted the prior conviction. Relying on our directions, the trial court imposed a total sentence of five years in state prison, instead of the 14 years to which defendant had been originally sentenced. The People appeal, arguing that the re-sentence violates the provisions of section 654 and therefore constitutes an unlawful sentence. Defendant concedes the error, but argues that defendant's admission of the prior conviction is insufficient to support a five year enhancement of his sentence pursuant to section 667, subdivision (a). Court accept defendant's concession of error, reject his contention concerning his prior conviction, reverse the judgment and remand for resentencing.

A modification decision.

Plaintiffs, cross defendants, and appellants Yumi Sam and Allan Sam appeal an order denying their notice of petition to compel mediation and arbitration and application for order staying proceedings. The Sams contend that the trial court erred in concluding they did not file an adequate petition and waived their rights to arbitrate the dispute. Court agree and reverse.

Defendant appeals convictions for cohabitant abuse, child endangerment, and resisting a police officer. He contends his Sixth Amendment right to be confronted with the witnesses against him was violated when hearsay testimony was admitted into evidence, and that the court improperly instructed the jury on each of the charges. Court reduce his cohabitant abuse conviction to cohabitant battery, and remand for resentencing.

A modification decision.

Veronica E.(Veronica), Fernando E. (Fernando), and minors Hugo E. (Hugo) and Yvette E. (Yvette), appeal jurisdictional and dispositional orders of the juvenile court. Because the juvenile court has dismissed the dependency proceedings with respect to both minors, and there are no ongoing orders adversely affecting appellants, court dismiss the appeal as moot.

Pursuant to a negotiated disposition, defendant pleaded no contest to possession of methamphetamine for sale (Health and Saf. Code, S 11378) and admitted enhancements for being personally armed with a firearm (Pen. Code, S 12022, subd. (c)) and being on bail on an earlier offense (Pen. Code, S 12022.1); he was sentenced to two years in state prison. On appeal he contends that the magistrate and trial court erred by denying his motion to suppress. Court find no error and affirm.

Defendant pled guilty to possessing methamphetamine (Health and Saf. Code, S 11377, subd. (a)) and was referred to a drug treatment program under Penal Code section 1210 et seq. (Proposition 36). After Gonsalves admitted three successive violations of drug related conditions of his probation, the court sentenced him to one year in county jail. On appeal, his court appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. Court have done so, and finding no issues that merit briefing, affirm the judgment.
Having reviewed the entire record and considered Gonsalves's written contentions, court conclude there are no arguable issues that warrant further briefing.
The judgment is affirmed.

Defendant appeals the judgment of conviction and sentence imposed following her jury trial on two counts of making criminal threats, in violation of Penal Code section 422. Appellant also contests the revocation of probation based on her conviction on the section 422 counts. Court affirm.

On July 19, 2005, Defendant pleaded no contest to the felony offense of possessing methamphetamine. The imposition of sentence was suspended, and the court placed Whitson on three years of formal probation, and imposed a restitution fine of $200. On March 22, 2006, Whitson waived his right to a formal probation violation hearing and admitted he had used methamphetamine in violation of probation. At the sentencing hearing on April 26, 2006, the trial court imposed the midterm of two years on the possession offense after formally revoking probation. The court also imposed a restitution fine of $400 and a suspended parole revocation restitution fine of $400. The court then stated it was suspending the criminal proceedings under Welfare and Institutions Code section 3051, which provides for the civil commitment of a convicted person for drug treatment at California Rehabilitation Center (CRC). After defense counsel and the prosecutor waived "irregularities," at the request of the court, Whitson was committed to the custody of the Director of Corrections for confinement in the narcotics program at CRC for a maximum term of two years with credit for time served of 62 days.
The judgment of commitment to the Director of Corrections for confinement in California Rehabilitation Center is vacated, and the matter is remanded to the superior court for further proceedings.

Defendant appeals from a judgment sentencing him to four years in state prison, after his probation was revoked. He claims that the trial court improperly relied upon hearsay evidence, including a statement he also contends was taken in violation of Miranda v. Arizona (1966) 384 U.S. 436, to establish his probation revocation. Court find no reversible error and affirm.