CA Unpub Decisions

Defendant Rene Hernandez appeals after conviction, by jury trial, of rape (Pen. Code, § 261, subd. (a)(2)),[1] penetration with a foreign object (§ 289, subd. (a)(1)), and assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1)). The jury found true allegations that defendant kidnapped the victim before committing the rape and penetration. (§ 667.61, subds. (b), (e)(1).) Defendant was sentenced to consecutive terms of 15 years to life for the rape and penetration, with the term for the assault stayed pursuant to section 654.

This action involves a dispute over entitlement to a one-acre parcel of real property in long-term ground lease covering 14 acres. A lease provision allowed the original property owner and his two children to live on the acre as long as they desired, but required delivery of the parcel to the lessee if they decided to no longer live there. After the original owner and his children passed away, current owners Michael and Victoria Lawrence (landlords) refused to deliver the parcel to the current lessee, JR Enterprises, L.P. (tenant), resulting in various actions against each other.
In a bench trial, the court found certain of landlords’ claims to be barred by the statutes of limitations, waiver, estoppel, and laches. After a jury trial on landlords’ remaining causes of action, the court directed a verdict for tenant on its claim landlords had breached the lease by failing to deliver the parcel. Although it also directed a verdict for landlords that tenant had breached the lease by excluding certain calculations from its rent payment, it granted tenant relief from forfeiture of the lease. (Civ. Code, § 3275; all further statutory references are to this code unless otherwise stated.)
In this consolidated appeal from the judgment (G044999) and denial of their postjudgment motions (G045163), landlords contend the court erred by not voiding the one-acre lease provision under section 715 [nonvested lease invalid if term not commenced within 30 years], nonsuiting their fraud claim; and excluding certain evidence. They also argue substantial evidence does not support the grant of relief under section 3275, the application of affirmative defenses to bar certain claims, or the jury’s award of damages. We affirm.

The request for publication contained in the letter filed April 30, 2013 by attorney William A. Salzwedel is DENIED. The clerk of this court is directed, pursuant to rule 8.1120(b) of the California Rules of Court, to forward to the Supreme Court, within 15 days of the finality of the opinion in this case, a copy of attorney Salzwedel’s request, together with a copy of the opinion, and this denial order. It does not appear that our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c); attorney Salzwedel’s letter is merely a vehicle to express disagreement with the merits of the decision.

On December 27, 2011, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging 14-year-old appellant, Joshua M., feloniously carried a dirk or dagger (Pen. Code, § 12020, subd. (a)(4)).[1] At the conclusion of a contested jurisdiction hearing on April 25, 2012, the juvenile court found the allegation true beyond a reasonable doubt. At the disposition hearing on May 23, 2012, the juvenile court granted Joshua’s motion to treat the felony adjudication as a misdemeanor pursuant to section 17, subdivision (b). We reject Joshua’s contention on appeal that there was insufficient evidence before the juvenile court that he possessed a dirk or dagger.

Appellant, Joseph Richard Taylor, was found guilty after a jury trial of misdemeanor assault of a peace officer (Pen. Code, § 241, subd. (c), count 1)[1] and resisting an executive officer, a felony (Pen. Code, § 69, count 2). The jury did not find that appellant had personally used a knife. In a bifurcated proceeding, the trial court found true allegations that appellant had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) and had four prior serious felony convictions within the meaning of the three strikes law.
At the sentencing hearing, the court granted appellant’s request to strike three of his prior serious felony convictions due to the remoteness of the convictions. The court found one prior prison term enhancement true. The court sentenced appellant to the upper term of three years, doubled to six years pursuant to the three strikes law, and added a term of one year for the prison term enhancement, for a total sentence of seven years.
Prior to trial, after reviewing the records of the two arresting officers, the court denied appellant’s request for discovery of the officers’ personnel records. On appeal, appellant seeks independent review by this court of information in the arresting officers’ personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and People v. Mooc (2001) 26 Cal.4th 1216 (Mooc).

A juvenile court found true that defendant and appellant B.M. (minor) committed misdemeanor battery on school property. (Pen. Code, § 243.2, subd. (a)(1).)[1] Immediately thereafter, and after waiving his right to a probation report, minor was placed on probation in the custody of his father for a period of six months pursuant to Welfare and Institutions Code section 725, subdivision (a), on various terms and conditions. Minor appeals from the judgment. We find no error and affirm the judgment.

Appellant Esther Boggess appeals an order for the seizure and destruction of her firearms following a petition filed under Welfare and Institutions Code[1] section 8102 after her release from a facility at which she was detained for psychiatric evaluation under section 5150. The court granted the petition, finding petitioners City of San Diego, Chief of Police William Lansdowne, and the San Diego Police Department (collectively City) demonstrated return of the firearms to Boggess would be likely to result in endangering Boggess or others, and they should not be returned to her, but forfeited and destroyed.
Boggess contends there was insufficient evidence to support the court's determination that return of the firearms would be likely to pose a risk of harm to herself or others. She also contends section 8102 is unconstitutional in light of two United States Supreme Court cases, District of Columbia v. Heller (2008) 554 U.S. 570 (Heller) and McDonald v. City of Chicago (2010) 561 U.S. ___ [130 S.Ct. 3020] (McDonald), as the statute infringes on her fundamental Second and Fourteenth Amendment right to bear arms. We reject these contentions and affirm the order.

A jury convicted Mark Jessee of three counts of a lewd act on a child (Pen. Code, § 288, subd. (a); counts 1, 2 and 3) and aggravated sexual assault (Pen. Code, §§ 269/286; count 4). The trial court sentenced him to an indeterminate term of 15 years to life on count 4, plus a consecutive determinate 10-year state prison term on counts 1 through 3 (a midterm of 6 years for count 1 and consecutive two-year terms for counts 2 and 3). On appeal, Jessee contends the trial court prejudicially erred by admitting certain evidence under Evidence Code[1] sections 1108 and 1101. We affirm the judgment.

Lawrence Pasternack appeals from a judgment entered after the trial court confirmed an arbitration award in favor of respondents Charles J. Capozzoli and Capozzoli's Pizzeria & Restaurant, Inc. (CPRI). Pasternack contends the court should have vacated the arbitration award because the arbitrator erroneously failed to consider additional evidence he had presented between the issuance of the arbitrator's "interim award" and the final arbitration award. Pasternack alternatively claims the final arbitration award was gained through fraud, corruption or other undue means. Charles Capozzoli cross-appeals, contending the court erred because after it issued a judgment that included respondents' requested prejudgment interest, the court issued an unauthorized "amended judgment" withdrawing the prejudgment interest award. We affirm the decision to confirm the arbitration award, but reverse the trial court's May 27, 2011 amended judgment and remand the matter with directions set forth below.

In a second trial, a jury convicted Mohammad Behbahani of the unlawful possession of an assault weapon (former Pen. Code, § 12280, subd. (b)). The imposition of sentence was suspended pending his successful completion of 18 months of formal probation.
On appeal, Behbahani contends the trial court erred by granting his motion under Faretta v. California (1975) 422 U.S. 806 (Faretta motion) to represent himself, without first conducting a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden motion) to determine why he was dissatisfied with his appointed counsel, and whether new counsel should be appointed, and by conditioning his right of self-representation on no continuance of trial. Further, he challenges a probation condition requiring the probation officer's approval of his choice of residence and employment as overbroad and unconstitutional. We agree with the latter point and modify the probation order to strike these particular conditions. In all other respects, we affirm the judgment.
FACTS
On October 8, 2009, Detective Jethro Hudgins of the San Diego Police Department, with a team of police officers and investigators, went to a residence in the Scripps Ranch area of San Diego to conduct a welfare check. Behbahani came out of the house, and after a brief discussion, he invited Hudgins and others into the house.
Detective Hudgins asked Behbahani if there were guns in the house. Behbahani said there were four guns present. Behbahani showed Detective Hudgins the guns, including a rifle in a zippered case, which Behbahani referred to as an AK-47, along with two loaded magazines. Behbahani produced a receipt for the rifle, which was actually a Norinco MAK-90, a semiautomatic rifle.

A jury found in favor of plaintiffs Laszlo Gal and Agnes Christina Gal (together the Gals) on their claim for breach of implied warranty against Panto USA, Inc. (Panto). Panto appeals, claiming the trial court erred in precluding all evidence regarding a warranty disclaimer in the contract on the ground the disclaimer was not conspicuous. (Cal. U. Com. Code, § 2316.) It also asserts that some of the damages awarded must be stricken.
At oral argument on this appeal, counsel for Panto informed the court that the corporate status of his client had been changed to forfeited by the California Secretary of State. We heard oral argument, but directed the parties to file letter briefs addressing how this change impacted the appeal. The parties have done so.
The Gals' request for judicial notice is granted. Panto is a Florida corporation whose corporate status in California has been forfeited. The powers of a foreign corporation may be forfeited, for failure to pay certain taxes or file certain tax returns. (Rev. & Tax. Code, §§ 23301, 23301.5.) During the period of forfeiture, the corporation may not prosecute or defend an action, or appeal from an adverse judgment. (Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1957) 155 Cal.App.2d 46, 49–51.) Accordingly, this appeal is dismissed.

Following the denial of his suppression motion "Pen. Code, § 1538.5" Pen. Code, § 1538.5), defendant Guy Quintanar pled no contest to possession of stolen property "Pen. Code, § 496, subd. (a)" Pen. Code, § 496, subd. (a)) in exchange for a three-year prison term to be served in county jail.
On appeal, defendant contends the trial court erred in denying his suppression motion because the evidence obtained against him was the product of his being unlawfully detained. Defendant also contends that he is entitled to additional presentence conduct credits. We reject defendant’s unlawful detention claim, but agree with him that he is entitled to the custody credits he seeks.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

In this action by the seller’s broker to recover a commission for the sale of real estate, the seller, Dorothy O. Parent, advanced two theories to avoid payment of the commission. The trial court rejected the first theory she pursued at trial: that the land purchase agreement, which included the broker’s right to a commission, had expired. It also rejected the second theory she asserted for the first time in objecting to the statement of decision: that the land purchase agreement was not a bilateral contract, but an option that expired by its own terms.
The court awarded the broker a 5 percent commission on the sales price set forth in the land purchase agreement, though the sale ultimately was not consummated pursuant to the land purchase agreement but was instead concluded at a higher price according to the terms of a settlement agreement the seller reached with the buyer, Enterprise Rancheria, after the seller repudiated the contract. The seller appeals. We affirm.[1]