CA Unpub Decisions

A modification decision.

On July 10, 2006, defendant entered "open" no contest pleas to two counts of commercial burglary (Pen. Code, 459, 460, subd. (b), counts one and two) and one count of grand theft ( 487, subd. (a), count three). Defendant admitted a prior conviction allegation ( 667, subds. (b)-(i), 1170.12) and two prior prison term allegations ( 667.5, subd. (b)).
Court conclude that defendant has forfeited both issues. Accordingly, Court affirm the judgment.

On March 19, 2007, the United States Supreme Court granted a petition for writ of certiorari filed by defendant Ceariaco Cabrellis, vacated the judgment, and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Cunningham concluded that Californias determinate sentencing law violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence. (Id. 127 S.Ct. at p. 870.) Following the California Supreme Courts recent decision in People v. Black (2007) 41 Cal. 4th 799 (Black II), Court affirm the judgment.

Robert W. Petty, Lynne I. Petty, and Leisa Petty (the Pettys) appeal a judgment awarding damages to Lake Berryessa Enterprises, Inc., II (LBE) in connection with the parties agreement that the Pettys would purchase the Putah Creek Park Resort (the Resort). The Pettys contend the court erred when it determined that the parties agreement was mutually cancelled rather than rescinded and awarded LBE damages in the form of the balance of the Pettys down payment. Court affirm.

Allie James Bell appeals his jury convictions for first degree murder with special circumstances, and attempted robbery. He argues that one of the trial witnesses identified him as a result of a stationhouse lineup that was impermissibly suggestive, and that he was denied his right to confront the witness because the court excluded certain impeachment evidence bearing on credibility. Court disagree, and affirm.

Robert W. Petty, Lynne I. Petty, and Leisa Petty (the Pettys) appeal a postjudgment order awarding contractual attorney fees to Lake Berryessa Enterprises, Inc., II (LBE) as prevailing parties, following a 17-day court trial. The Pettys and LBE agree that resolution of this appeal depends on the outcome of the related appeal of the judgment entered in favor of LBE in the underlying action. Because we today affirmed the underlying judgment in A111217, Court affirm the attorney fees order contested in this appeal.

Chris Gilbreth appeals his convictions for voluntary manslaughter and possession of a firearm by a convicted felon. Defendants principal argument is that his conviction for possession of a firearm by a convicted felon must be reversed because his predicate felony conviction had been reduced to a misdemeanor. We agree with defendant on this point, reverse his conviction for firearm possession, and remand for resentencing. In all other respects Court affirm the judgment.

A jury convicted defendant Derran Smiley of kidnapping to commit rape and five counts of forcible rape (Pen. Code, 209, subd. (b)(1); 261, subd. (a)(2)), all involving victim Chanelle Doe. The trial court sentenced defendant to 25 years to life, consecutive to a determinate term of 24 years. Defendant challenges the sufficiency of the evidence to support the aggravated kidnapping conviction, and raises several other contentions including improper admission of prior sexual offenses, instructional error, and ineffective counsel. Court reject defendants contentions and affirm.

Defendant Terence Michael Singleton appeals after pleading no contest to a charge of first degree burglary. (Pen. Code, 459.) His sole contention on appeal is that the trial court erred in denying his motion to suppress evidence. Court affirm.

Defendants and appellants Vintners Lodge Sonoma LP, and Vintners Grove, Inc. (defendants), appeal from the trial courts order granting the request of plaintiffs and respondents Anthony and Laura Ponter and Spirits in Stone, Inc. (plaintiffs), for a preliminary injunction prohibiting defendants from obstructing a gravel driveway subject to an easement dispute. Defendants contend plaintiffs failed to establish a likelihood of success on their claim for reformation of the easement language and failed to demonstrate that the equities favored granting the preliminary injunction. Court disagree and affirm.

Liza Lasser appeals the dismissal of her petition for a writ of mandate seeking to compel the City and County of San Francisco, its assessor, and its controller (when referred to collectively, the City) to pursue recovery of a $12.6 million property tax refund paid to the IBM Personal Pension Plan (the Plan) or its trustee, JP Morgan Chase Bank, N.A. (the Trustee). Appellant argues that the tax refund was an illegal gift of public funds prohibited by article XVI, section 6 of the California Constitution. Court disagree and affirm.

G.M. (Mother), the mother of 17 month old Amanda M., petitions under California Rules of Court, rule 8.452 to vacate an order of the trial court setting a hearing under Welfare and Institutions Code section 366.26. Mother claims the Contra Costa County Department of Children and Family Services (the Department) failed to offer her reasonable reunification services and that there is a reasonable probability Amanda can be safely returned to her if reunification is extended for an additional six months. Court deny the petition on its merits.

Here we hold that under People v. Black(2007) 41 Cal.4th 799, Manuel Zamudio was not entitled to a jury trial on the factors used to impose the upper term. Court affirm.

A modification decision.