CA Unpub Decisions

Defendant Pierre Lamar James appeals from the trial court’s October 3, 2016, orders revoking probation and executing previously imposed prison sentences. The probation violation stems from an incident in which the police stopped and arrested a man identifying himself as Peter James, defendant’s identical twin brother. This person fled, and after police lost sight of him for several minutes, they found and arrested defendant. Defendant contends there is insufficient evidence to connect him—rather than Peter—to the original crimes, and that in any event, there is insufficient evidence he violated the terms of his probation. We affirm with directions to correct three minute orders and the abstract of judgment in case No. MA061783.

Beginning in 2002, three attorneys in succession mishandled legal matters for Mordechai and Monica Kachlon, resulting in a substantial judgment against the Kachlons. The Kachlons filed this legal malpractice action against the attorneys in 2005. The first attorney obtained summary judgment on the ground that the action was time-barred as to him. (Kachlon v. Spielfogel, Jan. 6, 2016, B259872 [nonpub. opn.].) The second and third attorneys successfully moved to have the remainder of the dispute sent to arbitration and the civil action against them stayed. After the arbitrator ruled against them in 2015, the attorneys moved to vacate the arbitration award on the ground that it was not entered within five years of commencement of the action, as required by Code of Civil Procedure section 580.310. The trial court denied the motion.
We affirm.

Nasar Enterprises, Inc. (Nasar), Ganesh Group Corporation (Ganesh), KJYT Visions, Inc. (KJYT), and Dhillon Partners, LLC (Dhillon) (collectively the ARCO dealers) are franchisees of BP West Coast Products LLC (BPWCP). They operate franchise gasoline stations at various locations in California. In 2013, the ARCO dealers sued BPWCP alleging it had failed to set gasoline prices in good faith pursuant to an open price term in their franchise agreement. The ARCO dealers also alleged that BPWCP breached the franchise agreement, the implied covenant of good faith and fair dealing, and the implied warranty of merchantability by selling them defective computer systems.
A jury found that BPWCP had not set prices in bad faith or at commercially unreasonable levels, defeating the ARCO dealers’ claim based on the implied covenant of good faith and fair dealing.

Nasar Enterprises, Inc. (Nasar), Ganesh Group Corporation (Ganesh), KJYT Visions, Inc. (KJYT), and Dhillon Partners, LLC (Dhillon) (collectively the ARCO dealers) are franchisees of BP West Coast Products LLC (BPWCP). They operate franchise gasoline stations at various locations in California. In 2013, the ARCO dealers sued BPWCP alleging it had failed to set gasoline prices in good faith pursuant to an open price term in their franchise agreement. The ARCO dealers also alleged that BPWCP breached the franchise agreement, the implied covenant of good faith and fair dealing, and the implied warranty of merchantability by selling them defective computer systems.
A jury found that BPWCP had not set prices in bad faith or at commercially unreasonable levels, defeating the ARCO dealers’ claim based on the implied covenant of good faith and fair dealing.

Plaintiff Teodoro Sanchez appeals from multiple judgments entered against him after the trial court granted summary judgment motions in favor of Lawyers Title Insurance Company and its successor by merger Fidelity National Title Insurance (collectively, Lawyers Title), Ronald Fernando, Antalejeff, Inc., and Jonathan Evans. We affirm.

Defendant Billy Whisenton appeals from the trial court’s revocation of his probation and imposition of a three-year prison sentence for knowingly and maliciously dissuading a witness from testifying, a felony violation of Penal Code section 136.1, subdivision (a)(1). Defendant’s court-appointed counsel has filed a brief that does not raise any legal issues. He requests that this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant was informed of his right to file a supplemental brief and has not done so. Upon our independent review of the record pursuant to Wende, we conclude there are no arguable appellate issues for our consideration and affirm the trial court’s rulings.

Donald Duane Sparks appeals from a judgment of conviction and sentence imposed after a jury found him guilty of perpetrating multiple sex crimes on a child. He contends the trial court erred by instructing the jury, pursuant to CALCRIM No. 1191 (now CALCRIM No. 1191A), that it could consider evidence of Sparks’s prior sexual acts with respect to another child if the uncharged conduct was proven by a preponderance of the evidence. We will affirm the judgment.

Eighteen-year-old Marco R. appeals from a juvenile court order imposing a probation condition requiring him to stay away from schools where he is not enrolled. He contends that the stay-away condition is unconstitutionally vague and overbroad. We disagree and affirm.

Defendant Shanden Stanley appeals a judgment convicting him of, among other things, kidnapping, making a criminal threat, and attempted murder and sentencing him to 150 years to life in prison. He contends his trial attorney rendered ineffective assistance by failing to object to testimony by an expert witness that the victim’s recollection of the person who shot her appeared to be a genuine recollection rather than something she had been told while suffering from amnesia. He also asserts numerous errors regarding sentencing and requests correction of errors in the abstract of judgment. We find no ineffective assistance of counsel and therefore shall affirm the conviction. We agree, however, that remand for resentencing and correction of the abstract of judgment is required.

Nicholas David Miller was arrested for driving under the influence (Veh. Code, § 23152, subd. (a)) and his driving privilege was suspended by the Department of Motor Vehicles (DMV) following an administrative per se hearing, at which the hearing officer found Miller’s arrest was lawful. Miller appeals from a judgment denying his petition for writ of mandate to set aside the suspension of his driver’s license. Miller contends that the suspension should be set aside because he was unlawfully arrested. We agree that Miller’s arrest was unlawful and that the DMV could not therefore suspend his license. Accordingly, we reverse the judgment.

Plaintiff Alan Batt (Plaintiff) appeals the trial court’s order denying his motion to vacate a dismissal based on his attorney’s mistake, inadvertence, surprise, or neglect (Code Civ. Proc., § 473, subd. (b) (hereafter, § 473(b)). We reverse.

Willie M. Clay II (Clay) killed the man who had killed Clay’s teenage son three years earlier. Clay claimed he killed in self-defense because he believed his own life was in danger. Indeed, by many accounts, the man he killed was an extremely violent gang member who had threatened to kill Clay either personally or through a hitman. The trial judge instructed on imperfect self-defense, but not on perfect self-defense, because Clay, without immediate provocation, approached the man from the rear and shot him in the back after lying in wait for him. Then, when the man fell, Clay fired three more bullets into the back of his neck and head. The jury found Clay guilty of first degree special circumstance murder, and he was sentenced to life in prison without possibility of parole, plus 25 years to life imposed consecutively under Penal Code section 12022.53, subdivision (d).

Defendant David Harold Johnson appeals from a judgment of conviction entered after a jury found him guilty of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a) - count 1), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a) - count 2), and battery causing serious bodily injury (Pen. Code, §§ 242, 243, subd. (d) - count 3). The jury also found that defendant personally inflicted great bodily injury in the commission of count 3 (§§ 667, 1192.7). Defendant admitted the allegations that he had served four prior prison terms (§ 667.5, subd. (b)), had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), and had two prior serious felony convictions (§ 667, subd. (a)). The trial court sentenced defendant to 20 years in state prison. On appeal, defendant contends that the trial court prejudicially erred when it instructed the jury that “serious bodily injury” and “great bodily injury” were “e

Defendant Andre Tyrone Johnson was convicted by jury in Monterey County Superior Court of first degree murder (Pen. Code, § 187) and first degree burglary (§ 459). The jury also found true that he personally and intentionally discharged a firearm causing the death of Solomon Sandoval Perez within the meaning of section 12022.53, subdivision (d). The trial court sentenced defendant to 50 years to life consecutive to six years, and imposed a consecutive term of four years eight months for an uncompleted sentence that had been imposed in an earlier Santa Clara County case (People v. Johnson (Super. Ct. Santa Clara County, 2015, No. C1472888)), including a one-year term for a weapon enhancement (§ 12022, subd. (b)).On appeal, defendant contends that the trial court erred by admitting testimony of a witness’s prior inconsistent statement regarding defendant’s involvement in a prior armed robbery.