CA Unpub Decisions

Defendant Anthony Biggins was charged by information filed April 27, 2006, with petty theft with a specified prior (Pen. Code, 666; count 1),[1] and second degree burglary ( 459, 460, subd. (b); count 2). The information further alleged that defendant had a prior felony conviction that qualified as a strike ( 1170.12), and that he had served three prior prison terms ( 667.5, subd. (b)). On June 29, 2006, the court granted defendants motion to bifurcate trial on the alleged priors, and on July 10, 2006, defendant admitted the strike prior and two of the prison priors. On July 11, 2006, the jury found defendant guilty of count 1 and not guilty of count 2.Viewing the record in the light most favorable to the judgment, as Court must (People v. Johnson (1980) 26 Cal.3d 557, 578).

On October 26, 2002, 13-year-old appellant was sexually assaulted while visiting Six Flags Marine World, a family amusement park in Vallejo, California. By and through her guardian ad litem, appellant brought suit against Park Management Corporation, doing business as Six Flags Marine World and Six Flags Theme Parks, Inc. (hereafter Marine World or respondents), and Hunters Point Boys and Girls Club[1]for damages arising from this assault. The trial court granted a motion for summary judgment brought by respondents, concluding that appellant had failed to prove that (1) a lack of security caused her injuries; and (2) a janitor employed by Marine World knew or had reason to know a crime was occurring, such that a duty to help avert the danger arose. Appellant challenges this ruling; Court affirm.

Damien B. appeals his commitment to the Fouts Spring Youth Facility on the bases that there was insufficient evidence of benefit to him and reasonable efforts had not been made to avoid removing him from his home. Court affirm.

Michael Cohen, Sr. (Cohen) appeals from an injunctive order prohibiting harassment issued under Code of Civil Procedure section 527.6 (section 527.6). The protected party is Phillip E. Makin, Sr. (Makin). The tension between the parties centers on Makins prior relationship with Cohens stepdaughter, Julianne Belik, and the custody of their son, Phillip Makin, Jr. (Phillie). Cohen contends that the order lacks a substantial evidentiary basis. Court affirm.

Defendant, Coy Watson, initially appealed from his convictions for cocaine base sale and possession. (Health & Saf. Code 11350, subd. (a), 11352, subd. (a).) In an unpublished opinion, People v. Watson (January 17, 2006, B181639) [non pub. opn.], we: affirmed defendants conviction as to count 2 (cocaine base possession); conditionally reversed his conviction as to count 1 (cocaine base sale); remanded to the trial court for an in camera review of relevant peace officer records; ordered the imposition of additional fines and penalties; and ordered the abstract of judgment be corrected. Thereafter, the United States Supreme Court granted defendants certiorari petition. On February 20, 2007, in Watson v. California (2007) U.S. [127 S. Ct. 1229], the United States Supreme Court vacated our judgment and remanded the cause for further consideration in light of Cunningham v. California (2007) 549 U.S. , [127 S.Ct. 856, 871]. The appeal is dismissed.

This appeal arises out of a property insurance dispute. Plaintiff Malibu Broadbeach, L.P., purchased a rental dwelling insurance policy on a two-unit apartment over a garage through defendant John A. Forbing, an agent for codefendant State Farm General Insurance Company. Unbeknownst to the parties, the City of Malibu had not issued a permit for the structure to be used as a dwelling and it did not comply with current building codes. After the subject property suffered damages in a freak car accident, State Farm refused to pay for plaintiffs claimed losses to the extent they were excluded by the policys ordinance and law provision, which precluded coverage for losses incurred to bring the property into compliance with city building codes. State Farm paid plaintiff only the amount it deemed necessary to return the property to its pre-accident condition, while plaintiff demanded coverage for all the costs it incurred in remodeling the illegal structure so that it would comply with current municipal requirements.
In plaintiffs timely appeal of the summary judgment ruling, it is contended the trial court erred in its three findings and in making two related discovery rulings. Court affirm.

Appellant Ruben Bernal was convicted, following a jury trial, of two counts of willful, deliberate and premeditated attempted murder of a peace officer in violation of Penal Code sections[1]187 and 664, two counts of assault with a firearm on a peace officer in violation of section 245, subdivision (d)(1), one count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) and one count of grand theft auto in violation of section 487, subdivision (d)(1). The jury found true the allegations that appellant personally used and discharged a firearm in the commission of the offenses within the meaning of sections 12022.53, subdivisions (b) and (c) and 12022.53, subdivisions (a) and (d) and that he had previously been convicted of a felony within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (the "three strikes" law). The trial court sentenced appellant to a total term of 109 years in prison.
Appellant appeals from the judgment of conviction, contending that the evidence is insufficient to support his conviction for two counts of premeditated attempted murder. He further contends that California's Pitchess discovery procedure is violating his due process right to meaningful appellate review, and his Sixth Amendment right to effective assistance of counsel. Court affirm the judgment of conviction.

This is another appeal in the Mink-Maccabee saga. The familiar facts are these: both appellant Dan Maccabee and respondent Lyle Mink are lawyers. Mink for a time represented Maccabee, and later sued him for fees. Maccabee cross-complained, contending that he had referred a case to Mink and that Mink owed him a referral fee. The complaint was resolved with a judgment for Mink in the amount of $9,718, which we affirmed in August 2004, in an unpublished portion of our opinion. (Mink v. Maccabee (2004) 121 Cal.App.4th 835.) The cross-complaint was resolved with a judgment in favor of Maccabee in the amount of $87,500, which we affirmed in July 2007.
Court now consider trial court rulings on Maccabee's motion for prejudgment interest and his costs bill, and affirm those rulings.

Samantha M. petitions this court for extraordinary writ relief (Cal. Rules of Court, rule 8.452) from the juvenile courts order terminating her family reunification services at the six-month review hearing (Welf. & Inst. Code, 366.21, subd. (e)[1]) and scheduling a selection and implementation hearing ( 366.26) to determine a permanent plan for her daughter, Jasmina M.[2] Samantha contends (1) the court erred in failing to make a finding as to whether the Department of Children and Family Services (DCFS) provided her with reasonable family reunification services, and (2) DCFS failed to provide her with such services. Inasmuch as DCFS failed to provide Samantha with reasonable reunification services, Court grant the petition.

This case is before us upon transfer from the California Supreme Court for reconsideration in light of Branick v. Downey Savings and Loan Assn. (2006) 39 Cal.4th 235 (Branick), which held Proposition 64 [limiting standing to sue under Californias statutory unfair competition and false advertising laws] does not affect the ordinary rules governing the amendment of complaints and their relation back. (Id. at p. 239.) In accordance with the direction of the Supreme Court, Court have vacated our earlier decision and requested supplemental briefing in order to consider whether real party in interest Robert Lynch (Lynch) should be given the opportunity to amend his complaint. Court conclude Lynch has not alleged sufficient standing in his current complaint and therefore, the trial court erred in denying the motion for judgment on the pleadings filed by petitioner Young America Corporation (Young America). Court reject Lynchs contention that Court should remand for the trial court to consider in the first instance whether his complaint can be amended to allege standing.

A detective working undercover in the Alkali Flats neighborhood of Sacramento purchased a rock of cocaine base from defendant Eric Lloyden for $20. A jury convicted defendant of selling cocaine base. Finding defendant had served a prior prison term, the trial court sentenced him to an aggregate term of five years in prison.
On appeal, defendant contends (1) the court should have granted his Marsdenmotion (People v. Marsden (1970) 2 Cal.3d 118 (hereafter Marsden)), (2) use of a security chair denied him the right to a fair trial, (3) the prosecutor committed prejudicial misconduct, and (4) cumulative error warrants reversal. Court affirm the judgment.

jury convicted defendant William J. Brown of simple assault (Pen. Code, 240--count one; further undesignated statutory references are to the Penal Code) as a lesser included offense of assault with a firearm ( 245, subd. (a)(2)), false imprisonment ( 236--count three), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)--count five), and two counts of criminal threats ( 422--counts six & seven). It acquitted him on a count of criminal threats (count two); it deadlocked and a mistrial was declared on a count of assault by means of force likely to produce great bodily injury (count four). The jury found that defendant personally inflicted great bodily injury under circumstances involving domestic violence ( 12022.7, subd. (e)) in the commission of count five. The trial court found true a serious felony allegation ( 667, subd. (a)), a second-strike allegation ( 667, subds. (b)-(i), 1170.12), and a prior prison term allegation ( 667.5, subd. (b)). Defendant was sentenced to state prison for 17 years 4 months. On appeal, defendant contends (1) the great bodily injury finding on count five must be reversed due to prosecutorial misconduct during closing summation, and (2) counts six and seven are not supported by sufficient evidence that he intended his criminal threats to be conveyed to members of the victims family. Court affirm the judgment.

Ivo Kovacevich appeals from a judgment denying his petition to set aside amendments to a living trust and for damages. Ivo and Anna Kovacevich are brother and sister. Rudolf Kovacevich, their now deceased uncle, was the brother of their father. As a result of certain amendments to Rudolfs living trust, Ivo received less than had earlier been allocated to him. Ivo filed this action to set aside the amendments as procured through fraud or undue influence of Anna or to obtain equitable relief from the distribution of property under the trust. He contends the trial court erred in failing to award him relief. Court affirm the judgment.

Defendant Ruth Anna Kellner pled guilty in three separate cases to three counts of possession of methamphetamine with intent to sell (Health & Saf. Code, 11378) and one count of being an accessory after the fact (Pen. Code, 32). Defendant also admitted the following enhancements: (1) the methamphetamine she possessed was in crystalline form (Pen. Code, 1170.74); (2) the methamphetamine she possessed was an excess amount (Pen. Code, 1203.073, subd. (b)(2)); and (3) she committed one of the offenses while she was out on bail (Pen. Code, 12022.1). In exchange for her plea, the prosecutor dismissed the remaining charges and agreed to a maximum sentence of seven years in state prison. Sentenced to seven years in state prison, defendant now appeals her sentence, arguing the court abused its discretion when it sentenced her to consecutive terms on counts 1 and 6 in Siskiyou County case No. 052135. Defendant also appeals the trial courts order that she pay attorney fees totaling $5,934.50 pursuant to section 987.8. Court strike the order for attorney fees and otherwise affirm the judgment.