CA Unpub Decisions

Defendant and appellant, Kenneth Charles Chadwick, filed a petition to have his conviction expunged pursuant to Penal Code section 1203.4, which the court denied. On appeal, defendant contends the court erred in denying the petition because the basis for the denial is not legally cognizable. The People concede the issue. We reverse.

On December 21, 2016, a first amended information charged defendant and appellant David Michael Brown with a felony violation of vehicular evasion of a peace officer with willful and wanton disregard for the safety of persons and property under Vehicle Code section 2800.2 (count 1), and a felony violation of attempt to elude a pursuing peace officer while driving on a highway in a direction opposite of traffic flow under Vehicle Code section 2800.4 (count 2). The information also alleged four prison priors within the meaning of Penal Code section 667.5, subdivision (b). On June 30, 2017, prior offense numbers 2 and 3 were stricken by interlineation. The information further alleged that defendant suffered a strike prior pursuant to Penal Code sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).

A jury found defendant and appellant, William Patrick Mill McCord, guilty of being a felon in possession of ammunition. (Pen. Code, § 30305, subd. (a); count 1.) Defendant admitted he had suffered three prior prison terms. (§ 667.5, subd. (b).) The court sentenced defendant to an aggregate term of imprisonment of four years four months, consisting of the following: the low term of 16 months on the count 1 offense and a consecutive one-year term on each of the three prior prison term enhancements. On appeal, defendant contends the court erred by denying him probation, declining to strike the prior prison term enhancements, and by not issuing a sua sponte jury instruction on momentary possession. (CALCRIM No. 2305.) Defendant additionally maintains his trial counsel provided constitutionally ineffective assistance of counsel (IAC) by failing to request the instruction on momentary possession. We affirm.

Defendant and appellant Kerry Huang (Huang) appeals from an amended judgment entered in favor plaintiff and respondent Ping Pan (Ping). (See fn. 1, post.) The trial court granted Ping’s motion to amend the judgment to add Huang as an alter ego of defendant AC International, Inc. (ACI). Huang argues the trial court erred by denying his motion to quash service of process because Ping did not exercise reasonable diligence in attempting to personally serve Huang with the motion to amend the judgment before effecting substitute service. Huang contends the trial court lacked personal jurisdiction over him and, therefore, the trial court had no authority to issue orders regarding notice of Ping’s motion, and it lacked fundamental jurisdiction to enter an amended judgment naming Huang as a judgment debtor.

Plaintiff and appellant, Jeff Sekel, appeals a judgment of dismissal after the trial court granted a motion to quash service of summons brought by nonresident defendants and respondents Lynne Y. Borsuk (Borsuk) and her law firm, Lynne Y. Borsuk, P.C. (collectively defendants). Sekel contends the trial court erred in granting defendants’ motion to quash on the ground it lacked personal jurisdiction over defendants. Sekel argues defendants consented to jurisdiction in California by making a general appearance in the action. Sekel also contends the trial court erred in granting defendants’ motion to quash, because the motion was untimely. Sekel alternatively argues defendants had minimum contacts with California sufficient to support personal jurisdiction over defendants.

On June 11, 2016, defendant and appellant Michael Burdick was loitering around the front of the Apple Valley Vape Shop. Dwaine Wooley parked his car in front of the shop and went inside. Wooley left the driver’s side window partially cracked open for ventilation. Defendant put his entire arm through the window to unlock the door. He unlocked the door and opened it. Wooley ran out of the store and attacked defendant.

Defendant and appellant James Asbra appeals after a judgment entered on an arbitration award. Plaintiffs and respondents Robert S. Gavola, Linda A. Gavola and Robert S. and Linda A. Gavola Family Trust (collectively, Gavolas) were awarded $605,692 in connection with Asbra inducing the Gavolas to invest in dilapidated property in St. Louis, Missouri. When Asbra failed to pay the award, the Gavolas filed their petition to confirm arbitration award (Petition) pursuant to Code of Civil Procedure section 1288. Asbra opposed the Petition and filed his own petition to vacate the arbitration award (Petition to Vacate) but the trial court found the submissions untimely and such failure to file a timely response or correction was an admission of the Petition.

We conclude: (1) the factual allegations in Ping’s SAC did not contradict allegations he made in the original complaint or in the first amended complaint (FAC), and the SAC pleaded a viable cause of action for restitution, so the trial court properly overruled ACI’s demurrer to the SAC; (2) the trial court did not abuse its discretion by admitting the “Assignment and Assumption Agreement” (Assignment) into evidence because Ping submitted sufficient evidence, in the form of a final statement from a United States vice consul, to authenticate the Assignment under Evidence Code section 1454; (3) the record contains substantial evidence to support the trial court’s implied and express findings that the general manager for ZiJiang had apparent authority to assign that company’s right to collect on the invoices, and that Ping did not exceed his authority as general manager when he assigned Heng Cheng’s rights; (4) the record does not support Skyline’s characterization of a ha

Skyline Technology HK Co. Ltd. (Skyline), as successor to defendant AC International Corp. (ACI), appeals from a money judgment in favor of plaintiff Ping Pan (Ping). Between July 2009 and September 2010, Shanghai Heng Cheng Electronics Co., Ltd. (Heng Cheng) and Shanghai ZiJiang International Trading Co., Ltd. (ZiJiang), a Chinese manufacturer and distributor of precision scales, respectively, delivered $922,080.50 worth of digital scales to ACI in Chino, California. ACI ordered the scales directly or through its wholly owned and controlled Hong Kong-based affiliate, ChinaHengCheng Group, Ltd. (Hong Kong, Ltd.). ACI was to pay Heng Cheng directly or through Hong Kong Ltd., and Hong Kong Ltd. was supposed to pass the payments on to Heng Cheng. But ACI only paid Heng Cheng $100,000.

A jury convicted Michion Darby of first degree murder (count 1; Pen. Code, § 187, subd. (a)), robbery, attempted robber, shooting at an occupied vehicle (count 4; § 246), felon in possession of a firearm (count 5; § 29800, subd. (a)(1)), and street terrorism. The jury found true various gang, great bodily injury, and firearm allegations related to counts one through five within the meaning of sections 186.22, subdivision (b); 12022.5, subdivision (a); and 12022.53, subdivisions (b)-(e)(1). The court sentenced Darby to an indeterminate term of 50 years to life plus a determinate term of seven years. On appeal, Darby raises various arguments challenging his conviction and sentence. We conclude that Darby's conviction for attempted robbery (count 3) must be stricken and that there is insufficient evidence to support Darby's conviction for street terrorism (count 7).

Plaintiff and respondent San Diego Unified Port District (District) unsuccessfully asked defendant and appellant California Coastal Commission (Commission) to certify
an amendment of District's port master plan (at times, the amendment) to authorize specified hotel development in the East Harbor Island subarea, including construction of a 175-room hotel by real party in interest Sunroad Marina Partners, LP (Sunroad). District filed a petition for peremptory writ of mandate challenging Commission's denial of certification, and the trial court in January 2017 issued the writ, finding Commission violated provisions of the California Coastal Act of 1976 (at times the Act; Pub. Res. Code, § 30000 et seq.) and "impermissibly set policy" by setting a maximum rental rate or fixing an amount certain for room rental rates.

A jury convicted David Gregory Epps of assault on a peace officer with force likely to cause great bodily injury (Pen. Code, § 245, subd. (c); count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), resisting an executive officer (§ 69; count 3), the lesser included offense of delaying, obstructing, or resisting a peace officer (§ 148; count 4), and disobeying a court order (§ 237.6, subd. (a); count 5). The jury found true allegations as to counts 1 and 3 that Epps personally inflicted great bodily injury (§ 12022.7, subd. (a)) and that counts 1, 2, and 3 were serious felonies (§ 1192.7, subd. (c)(8)). In a bifurcated proceeding, Epps admitted the allegation regarding his prior prison term for burglary. (§§ 459, 667.5, subd. (b), 668.)

After pleading no contest to carrying a concealed dirk or dagger (Pen. Code, § 21310), Arnulfo Gamboa was placed on probation, which was later revoked based on the trial court's finding that Gamboa violated two terms of his probation, consisting of using drugs and failing to enroll in a drug counseling program as directed by his probation officer. The trial court then sentenced Gamboa to the upper-term sentence of three years in jail.
Gamboa contends (1) the trial court violated his constitutional right to due process during the probation revocation hearing by considering an exhibit containing positive drug test reports because defense counsel was not able to cross-examine the laboratory technicians who analyzed the tests; and (2) the trial court erred in imposing an upper-term sentence based, in part, on Gamboa's performance on probation in this case.

Cyrus Langston, a jail inmate, punched from behind another inmate, John Amezquita, breaking his jaw. Amezquita was being verbally, but not physically, aggressive toward a third inmate. Langston was convicted of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), count 1), with a true finding that he personally inflicted great bodily injury (§ 12022.7, subd. (a), and battery with serious bodily injury (§ 243, subd. (d), count 2). He admitted a prior prison conviction
(§ 667.5, subd. (b)) and a prior strike conviction (§ 667, subds. (b)-(i)) that was also a conviction of a serious felony. He claims that the trial court erred in refusing to grant a new trial due to the failure of a witness to comply with a subpoena, and that his counsel provided ineffective assistance by eliciting more information than was necessary about his prior felony convictions.