CA Unpub Decisions

This appeal stems from a common law claim for trespass and the unlawful felling of a tree. Plaintiff and appellant Beverly Chinn (appellant) appeals the judgment entered in favor of Marilyn Hess and her brother and gardener, Melvin Forrest (respondents). The trial court found appellant consented to removal of the tree through the ostensible agency of her tenants, Michael and Linda Schmidt (the Schmidts). Court affirm.

In November 2005, plaintiff and appellant Baker filed a complaint accusing defendant and respondent Lackey of fraud and deceit in making a claim against Bakers insurance carrier based on minor automobile accident occurring on San Pablo Avenue in Berkeley almost a year earlier. After a court trial which must have lasted no more than an hour or so, and featured only the in pro per parties appearing as witnesses, the trial court ruled in favor of Lackey. It found both that Baker had not proven that Lackey had committed any fraud nor that Baker personallyas distinguished from his insurance companyhad suffered any loss. Court strongly agree with both conclusions and hence affirm.

Court must dismiss this appeal for lack of jurisdiction. Appellant Morgan Yan has attempted to appeal an order denying his motion for leave to file a cross complaint. The order is not appealable.

Pursuant to a negotiated disposition, appellant Francisco Casillias Verduzco pled no contest to grand theft (Pen. Code, 487, subd. (a)), admitted a prior strike ( 1170.12, subd. (c)(1)), and admitted three state prison priors ( 667.5, subd. (b)). In exchange, appellant was to receive a 4 year state prison top. Consistent with the negotiated disposition, appellant was sentenced to four years in state prison.
Counsel for appellant has filed an opening brief raising no issues and asking this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Court have conducted the requested review and conclude that there are no arguable issues. Judgment affirmed.

newborn child was removed from his mothers custody and placed in foster care because mental illness impaired the mothers ability to safely care for and protect her child. (Welf. & Inst. Code, 300, subd. (b) (all further section references are to this code).) After more than 12 months of efforts at reunifying mother and child, the juvenile court terminated reunification services and scheduled a hearing to establish a permanent plan for the child. ( 366.26.) The mother petitions this court for a writ of mandate to reverse the juvenile courts order. The mother claims she was not provided reasonable reunification services. ( 366.21, subd. (f).) Court reject the claim and affirm the order.

The parties arbitrated a dispute arising from their Primary Care Provider Service Agreement, and appellant was awarded a small sum of money. Dissatisfied with the amount of the award, appellant launched a personal attack on the arbitrator, making unfounded claims of corruption, incompetence, bias, undue influence, and misconduct. The trial court wisely rejected appellants claims, and entered judgment on the arbitration award. Court affirm.

A jury convicted appellant Wilbert Filogonio Magdaleno (Magdaleno) of attempted first degree murder pursuant to Penal Code sections 664, 187, subdivision (a) and 189. Additionally, the jury found true the allegation that the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A), and that Magdaleno discharged a firearm, causing great bodily injury, within the meaning of section 12022.53, subdivision (d). Magdaleno was sentenced to 40 years to life imprisonment. Specifically, he was given 15 years to life for attempted first degree murder and an additional 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). On appeal, Magdaleno contends that his constitutional rights were violated because: (1) his conviction was based on an identification that was the product of a suggestive photographic lineup; and (2) he was denied an opportunity to confront witnesses who provided hearsay statements that supported the gang allegation. Court find no error and affirm.

Appellant Valerie Chatman (Chatman) initiated this lawsuit against respondent YMCA of Metropolitan Los Angeles (YMCA) after the YMCA notified her that it was terminating her from one of its programs, including asking her to leave its living space. The trial court granted the YMCAs motion for summary adjudication, and then, on its own motion, entered judgment on the pleadings in favor of the YMCA. Chatman appeals, asking us to reverse the trial court judgment and remand the matter for a jury trial. Court affirm.

Appellant Derrick Dwayne Thompson appeals from the judgment entered following his second degree robbery conviction. He argues the trial court abused its discretion in denying his request for appointment of an eyewitness identification expert. He contends the court erroneously found that certain evidence destroyed by police was not exculpatory, and not destroyed in bad faith. He also argues that the sanction imposed for the destruction and for the prosecutors alleged discovery violation is inadequate. Court affirm.

Jose Angel Herrera, also known as Jose Luis Herrera and Angel Herrera, appeals from a judgment entered upon his conviction by jury of first degree murder (Pen. Code, 187, subd. (a)). The jury also found to be true the special circumstance allegations of murder by active participant in a criminal street gang to further promote its activities ( 190.2, subd. (a)(22)), murder of a witness ( 190.2, subd. (a)(10)), and murder by lying in wait ( 190.2, subd. (a)(15)). It further found to be true the allegations that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1) and committed the offense to benefit a criminal street gang within the meaning of section 186.22, subdivision (a). The trial court sentenced defendant to life in prison without the possibility of parole for the murder conviction plus 25 years to life for the firearm use. Defendant contends that (1) the trial court prejudicially erred in excluding relevant expert identification testimony, thereby denying him of his constitutional right to present a defense, (2) the trial court abused its discretion under Evidence Code section 352 by allowing the prosecutor to elicit evidence that a witness was fearful and had an altruistic motive to identify defendant, (3) the California death penalty law violates the Eighth Amendment of the United States Constitution by proliferating special circumstances and thereby undermining their required narrowing function, (4) his sentence of life in prison without the possibility of parole is cruel and unusual punishment pursuant to the state and federal Constitutions, and (5) the $5,000 parole revocation fine imposed should be stricken because defendant was sentenced to life in prison without the possibility of parole. The Attorney General contends that if the parole revocation fine is stricken, the matter should be remanded to the trial court to adjust the restitution fine accordingly. Court strike the parole revocation fine and otherwise affirm.

Brent Taylor appeals his conviction for one count of driving or taking of a vehicle, in violation of Penal Code section 10851. Before this court, appellant asserts the trial court erred in: (1) denying his motion for a mistrial based on the prosecutors failure to disclose a witness statement prior to the witness testifying at trial; and (2) denying his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535 to discover evidence of complaints of misconduct involving one of the officers who arrested him. Any error with respect to the disclosure of evidence was adequately remedied by the courts admonition to the jury to disregard the evidence and the order striking it. In addition, Taylor has not demonstrated the circumstances surrounding presentation of this evidence or the courts efforts to cure any harm deprived him of a fair trial. Finally, he has not shown he suffered prejudice as a result. With respect to the Pitchess motion, however, the court erred in denying Taylors request for the discovery of police officer records. As Court explain, the information Taylor presented in support of the motion demonstrated the discovery sought could be material to his defense to the charges. Consequently, Court reverse for the court to conduct an in camerahearing pursuant to Pitchess.

James Herbert Brown, III appeals his conviction, by jury, of possession of cocaine for sale. (Health & Safety Code, 11351.) The jury further found that appellant committed the offense for the benefit of a criminal street gang. (Pen. Code, 186.22, subd. (b)(1)(A).) It was unable to reach a verdict on the other alleged offense, possession of a firearm by an ex-felon. ( 12021.) The trial court sentenced appellant to a term in state prison of seven years. He contends the trial court erred when it denied his motion to suppress evidence of the cocaine on the ground that appellant lacked standing to challenge the search. He further contends the trial court erred when it ruled that any statements he made at the hearing on the motion to suppress would be admissible at trial and that the gang enhancement is not supported by substantial evidence. Court affirm.

Appellant Leon M. Johnson was originally charged by information dated October 3, 2005, with robbery in violation of Penal Code section 211. The information further alleged the appellant had suffered two prior convictions of a serious or violent felony for purposes of section 1170.12, subdivision (a) through (d) and section 667, subdivision (b) through (i), and two prior convictions of a serious felony for purposes of section 667, subdivision (a)(1).
After hearing the evidence, the court found appellant guilty of grand theft and subsequently found true that he had suffered a prior strike.[4] The court selected the high term of three years and doubled the term due to appellants second strike offender status, resulting in a six-year sentence.
The judgment is conditionally reversed and the matter is remanded for a determination whether the available evidence establishes appellants mental competence as of the time of trial in 2006.

This case concerns a drive-by shooting involving multiple victims. The jury convicted appellant, Oscar Valladares, of one count of murder, three counts of willful, deliberate and premeditated attempted murder, one count of shooting from a motor vehicle and one count of shooting at a person from a motor vehicle. The jury found true allegations appellant personally and intentionally discharged a firearm in the commission of the offenses and personally and intentionally discharged a firearm causing death. He appeals his convictions claiming (1) the three eyewitness/victims presented perjured testimony; (2) the prosecutions rebuttal witness was a surprise witness whose testimony unduly prejudiced his defense, and in addition, was perjurious; (3) trial counsel was ineffective for failing to request a recess to investigate the rebuttal witnesss proposed testimony and for failing to secure an expert to testify a gunshot fired from a car could not have been the fatal shot because a shot fired from a car 15 feet away could not have entered the victims body and traveled downward through his body toward his feet as the coroner testified. Court affirm.