CA Unpub Decisions

On June 14, 2006, pursuant to Penal Code section 859a, defendant, represented by counsel, pled guilty tocount four (Pen. Code and Health and Saf. Code, SS 664, 11377(a), attempted posession of a controlled substance), of the amended complaint filed bythe District Attorney of Riverside County. Defendant also admitted the specialallegations filed pursuant to Penal Code sections 667(c) and (e)(1) and 1170.12(c)(1).
Court have now concludedour independent review ofthe record and find no arguable issues.
The judgment is affirmed.

Following the denial of their motions to traverse the search warrant and suppress evidence found in the search, appellants entered the following no contest pleas and admissions: (1) Jose pled no contest toconspiracy to commit the crime of transportationof cocaine (Pen. Code, S 182, subd. (a)(1); Health and Saf. Code, S 11352, subd. (a) (count 1)) and possession of an assault weapon(Pen. Code, S 12280, subd. (b) (count 7), and admitted allegations associated with count I that the substance exceeded four kilograms by weight (Health and Saf. Code, S 11370.4, subd. (a)(2)) and he was a principal armed with a firearmin the commission of the crime (Pen. Code, S 12022, subd. (a)(1)); (2)Guillermo pled no contest to count 1 and admitted allegations that he suffereda prior conviction of possession of a controlled substance with the intent tosell (Health and Saf. Code, S 11370.2, subd. (a)) and the substance exceeded four kilograms by weight (Health and Saf. Code, S 11370.4, subd. (a)(2)); and(3) Carlos pled no contest to transportation for sale of cocaine (Health and Safe. Code, S 11352, subd. (a) (count 5)). All other counts and allegationsagainst appellants were dismissed. The court sentenced appellants to stateprison as follows: (1) Jose to 10 years; (2) Guillermo to 13 years; and (3)Carlos to four years.
On appeal, appellants contend the trial courterred in denying their motions to traverse the search warrant and suppressevidence retrieved as a result of the search. Appellants have requested thiscourt independently review a sealed portion of the search warrant and the reporter's transcript of an in camera hearing the trial court conducted. Court affirm the judgment.

A jury found appellant not guilty of attempted murder (Pen. Code,SS 664, 187) asalleged in the first count of the first amended information,but convicted him of the lesser included offense of attempted voluntary manslaughter( SS 664, 192, subd. (a)) and found true allegations that during thecommission of the crime he personally used a deadly and dangerous weapon andpersonally inflicted great bodily injury (SS 12022, subd. (b), 12022.7, subd.(a)). The jury also convicted Burch in count two of assault with a deadly weapon, a knife (S 245, subd. (a)(1)), and found true that in the commission of that offense he personally inflicted great bodily injury (S 12022.7, subd.(a)). Burch admitted he suffered a prior conviction within the meaning ofsection 667, subdivision (a) and was convicted of a serious felony within themeaning of sections 667, subdivision (d) and section 1192.7, subdivision (c).
Burch was sentenced to a 15-year prison term asfollows: the three-year midterm for the attempted voluntary manslaughter,doubled to six years, plus one year for the use of a deadly and dangerousweapon enhancement, three years for the infliction of great bodily injuryenhancement and five years for the prior serious felony. Burch's sentence on the assault with a deadly weapon count and associated enhancement was stayed pursuant to section 654.
Burch's sole contention on appeal is that hisconviction for assault with a deadly weapon with the enhancement for personal infliction of great bodily injury, on which punishment was stayed, should be reversed because it was a lesser offense necessarily included in attempt edvoluntary manslaughter where the latter had enhancements for personal infliction of great bodily injury and personal use of a deadly weapon. As Court explain, Court disagree and affirm the judgment.

A jury convicted appellant of attempted voluntary manslaughter (Pen.Code, SS 664, 192, subd. (a)), as a lesser included offense to attempted murder (SS 664, 187; count 1), and found true allegations that duringthe commission of the crime he personally used a deadly and dangerous weapon and personally inflicted great bodily injury(SS 12022, subd. (b), 12022.7, subd. (a)). The jury also convicted Aguilera of(1) assault with adeadly weapon, a knife (S 245, subd. (a)(1)), and found true that in the commission of that offense he personally inflicted great bodily injury (S 12022.7, subd. (a); count 2), and (2) resisting a peace officer (S 148, subd.(a)(1); count 3). Appellant was sentenced to a 7-year prison term as follows:the three year midterm for attempted voluntary manslaughter, plus one year for the use of a deadly and dangerous weapon enhancement and three years for the infliction of great bodily injury enhancement. The court also sentenced Appellant to the mid term of three years for assault with a deadly weapon plus three years for the infliction of great bodily injury enhancement, to be served concurrently with his sentence on count one. The court did not impose anadditional term for resisting a peace officer.
On appeal, Appellant contends (1) his conviction for assault with a deadly weapon with the enhancement for personal infliction of great bodily injury should be reversed because it was a lesser offensene cessarily included in attempted voluntary manslaughter where the latter had enhancements for personal infliction of great bodily injury and personal use of a deadly weapon; (2) the concurrent sentences for attempted voluntary manslaughter and assault with a deadly weapon violate section 654; and (3) substantial evidence does not support his conviction for resisting arrest. As Court explain, Court agree the concurrent sentences violate section 654, but reject Appellant's other contentions. Accordingly, Court remand for the trial court to correctthe sentence but otherwise affirm the judgment.

Appellant appeals froman order denying her motion to set aside a judgment for dissolution of marriage. She contends the judgment is void as a matter of law because it is premised on a marriage already void under Family Code section 2201, subdivision (a). Court disagree and affirm.

A jury convicted appellant of attempted murder (Pen. Code,SS 187, subd. (a), 664; count 1), discharging a firearm in a grossly negligent manner (S 243; count 2), and assault with a firearm (S 245, subd. (a)(2); count 3). The jury found true allegations that (1) in committing each offense appellant acted for the benefit of, at the direction of, and in association with a criminal street gang (S 186.22, subd. (b)(1)(A)); (2) in committing the count 1offense, he personally used a firearm within the meaning of section 12022.53,subdivision (b); and (3) in committing the count 3 offense, he personally useda firearm within the meaning of section 12022.5, subdivision (a)(1).
The court imposed a prison term of 27 years,consisting of the seven year midterm on count 1 and ten years on the gang and firearm use enhancements accompanying that count. The court imposed concurrent terms on the remaining counts and enhancements.
On appeal, appellant contends the evidence was insufficient to support his attempted murder conviction. Specifically,appellant challenges the sufficiency of the evidence as to one element of the offense: the specific intent to kill the victim. Court affirm.

This is an appeal from judgment following a jury verdict finding defendant guilty of first degree murder and finding true a special circumstance allegation. Defendant contends the trial court erred in failing to conduct an inquiry into a juror's observation of conduct by a spectator who appeared to be coaching a witness and the juror's possible discussion of the observation with fellow jurors. Court conclude defendant has not established the trial court abused its discretion. Court affirm the judgment.

On March 3, 2006, appellant, entered pleas of no contest to three felony counts of attempted robbery (Pen.Code, SS 664 and 211, counts one, two and three) and one felony count of participation in a criminal street gang (Pen. Code, S 186.22, subd. (a), count four). Appellant admitted using a firearm (S 12022.53, subd. (e)(1)) and acting forthe benefit of a criminal street gang (S 186.22, subd. (b)(1)) during the commission of counts one, two and three. Prior to taking appellant's plea, the trial court noted that the indicated sentence would be between 12 and 17 years in prison.
The trial court sentenced appellant to the two year midterm on each count, but made appellant's sentences on counts two, three, and four concurrent to his sentence on count one. The court imposed the 10-year gun enhancement alleged on count one. The court imposed 10-year terms on the gun enhancements on counts two and three, but ordered these to be served concurrently. The court stayed the gang enhancements on counts one, two, and three. Appellant's total prison term is 12 years. The court awarded applicable custody credits and imposed a restitution fine.
Appellant contends the section 12022.53,subdivision (e)(1) gun use enhancement is not predicated on his personal use of the gun, but his participation in a criminal street gang in which a gun was used. Because he was sentenced on both this enhancement and count four(participation in a criminal street gang), appellant argues that the trial court violated section 654 in sentencing him to both allegations. Appellant, however, failed to obtain a certificate of probable cause. As court explain, the appeal must be dismissed.

Appellant appeals from an order terminating her parental rights (Welf. and Inst. Code, S 366.26) to her daughter. Appellant contends the court erred at an earlier stage of these proceedings by finding she received reasonable reunification services. Although court deem appellant's contention, at least in part, to be timely under the circumstances, court nonethe less conclude there is substantial evidence to support the trial court's finding. Because appellant raises no other issue onappeal, court affirm the order terminating parental rights.

The court readjudged appellant, award of the court (Welf. and Inst. Code, S 602) after appellant admitted allegations charging him with assault by means of force likely to cause great bodily injury (Pen. Code, S 245, subd.(a)(1)) and a criminal street gang enhancement (Pen. Code, S 186.22, subd. (b)(1)). On June 20, 2006, the court committed Appellant to the California Youth Authority (CYA). On appeal, Appellant contends: 1) the court abused its discretion when it committedhim to the CYA; and 2) the record does not contain any substantial evidence supporting therequired finding that Appellant would benefit from a commitment to the CYA. Court consider these contentions together and affirm.

In 2003, petitioner was charged with a number of felonies including theft. The case went to trial in 2006. On May 24, 2006,the court declared a mistrial and scheduled the resetting of a jury trial for June 29, 2006. At that time, the court ordered petitioner to submit to being booked and released at the men's jail prior to June 29, 2006. Petitioner was warned that, if he failed to do so he would be held in contempt of court. According to petitioner, he attempted to follow this order but was rejected by the jail because they did not have the necessary paperwork. Petitioner states that the trial court dismissed his case on July 12, 2006. Preremptory writ of prohibition and/or mandate issued.

Petitioner, a minor and Mexican national, seeks extraordinary writ review (Cal. Rules of Court, rule 8.450 8.452 [formerly rule 38 - 38.1]) through her guardian ad litem, of respondent court's orders denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearingas to her infant daughter. Court deny the petition.

Petitioners challenge the denial of their motion to amend the pleadings to identify defendants.
Peremptory writ of mandate issue directing the Kern County Superior Court to vacate its November 21, 2006 order,insofar as the order denied petitioners' motion to amend the complaint to name defendants, and issue a new order granting the request.

This lawsuit arose after salesman Paul Good, who was working for one commercial printing company, Madison/Graham ColorGraphics, Inc. (ColorGraphics), went to work for a competitor, Graphic Press, Inc. (Graphic Press). Soon thereafter,ColorGraphics realized some of its clients had shifted their business toGraphic Press. It sued on the theory Graphic Press and its owner, John Zamora,conspired with Good to spy on ColorGraphics, lure away clients, and steal tradesecrets. Graphic Press and Zamora maintained they were unaware of Good's alleged misconduct and they had no reason to suspect any wrongful conduct. It was their belief ColorGraphics lostbusiness to Graphic Press for legitimate business reasons, such as its state of the art equipment, better connections, and its excellent reputation in the industry. They filed a cross complaint against ColorGraphics.
A juryfound Good liable for (1) breach of hisemployment contract ($25,000); (2) breachof fiduciary duty ($182,000); and (3) misappropriation of trade secrets ($161,400). In addition, it determined Good was not acting within the scope of his employment when he intentionally interfered withColorGraphics's prospective economic advantage (intentional interference).
Thisopinion also addresses ColorGraphics's appeal from the court's refusal to instruct the jury Good was acting in the scope of his employment when he intentionally interfered with its customer relationships. ColorGraphics maintains the court should not have forced it to choose between theories of recovery and challenges the court's order denying its JNOV based on the argument the evidence clearly supported its other tort claims against Zamoraand Graphic Press. Court conclude these arguments lack merit and the portion of the judgment concerning these claims is affirmed.