CA Unpub Decisions

Following a mistrial on rape charges, defendant Jason Bighead pleaded guilty to sexual battery and unlawful sexual intercourse. Pursuant to a negotiated disposition, his sentence was suspended and he was placed on probation conditioned on serving 16 months in the county jail. Defendants probation was later revoked, and he was sentenced to the upper term of four years in state prison on the sexual battery count, with a concurrent upper term sentence on the unlawful sexual intercourse count. On appeal, defendant contends that his upper term sentences were imposed in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court disagree, and affirm the judgment.

Appellants Bushra and David Eckstein appeal from a judgment of the Contra Costa County Superior Court against them and in favor of respondents Kaiser Foundation Health Plan, Inc., The Permanente Medical Group, Inc., and Kaiser Foundation Hospitals (collectively Kaiser). The judgment confirmed an arbitrators award against the Ecksteins and in favor of Kaiser. On appeal, the Ecksteins contend the trial court improperly denied their petition to vacate the arbitrators award because the arbitrators membership in Kaiser Foundation Health Plan (Kaiser Health) was disqualifying information and a required disclosure under Code of Civil Procedure section 1281.9, and the arbitrators failure to disclose such membership is a ground for vacating the award ( 1286.2, subd. (a)(6)(A)). The Ecksteins argue further that Kaisers failure to disclose the membership resulted in an arbitral award procured by fraud and undue means ( 1286.2, subd. (a)(1) & (3)). Additionally, the Ecksteins contend the judgment should be reversed because the trial court improperly failed to issue a statement of decision. Court affirm the judgment.

Appellant Andrea Associates and respondents Stony Point West, Stony Point Investors II, and Stony Point East (Stony Point) attempted to form a real estate joint venture. Stony Point, as optionor, agreed to share its interest in eight Santa Rosa commercial properties in exchange for interest in certain of optionee Andrea Associates properties and Andrea Associates multi million dollar cash payment. The deal never closed, and Andrea Associates sued Stony Point for breach of contract, promissory estoppel and fraud. The trial court concluded that the failure of the contemplated transaction to close on time discharged the parties obligations under their option agreement. Judgment was entered in favor of Stony Point. Court affirm.

Defendant Paul Dalporto appeals from a judgment convicting him of misdemeanor vandalism, a lesser included offense of the charged felony vandalism. He contends the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of tampering with a vehicle and on the requirement of jury unanimity. Although we agree with his first contention, we deem the error harmless, and Court disagree with the second contention. Court therefore affirm the conviction.

Kevin L. appeals from a juvenile court dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). He challenges on various grounds the finding of probation violations and the commitment to DJF. He also asserts a claim of ineffective assistance of counsel on direct appeal and by petition for writ of habeas corpus. He further contends the July 10, 2006 written dispositional order and the commitment order do not accurately reflect the courts ruling regarding his maximum term of confinement. While the juvenile court must correct its written dispositional and commitment orders, Court otherwise affirm those orders and summarily deny the petition for writ of habeas corpus.

After a jury trial, appellant was convicted of one of two counts in the charging information, namely, being a felon in possession of a firearm. (Pen. Code, 12021, subd. (a)(1).) On appeal he contends that the trial court erred in refusing to instruct the jury with CALCRIM No. 3406 regarding mistake of factin this case regarding whether appellant, at the time he possessed the firearm, was under the mistaken belief that it was inoperable. Court agree with the trial court that this instruction was not required and hence affirm.

A jury convicted defendant Ezell Coilton, Jr. of one count of second degree commercial burglary. (Pen. Code, 459.) The conviction arose from an attempted shoplifting at a grocery store. Defendant contends the trial court erred by excluding an expunged criminal conviction as evidence to impeach a prosecution witness. We disagree because the exclusion was required by statute and did not violate defendants constitutional rights. Accordingly, Court affirm.

Plaintiffs Albion River Watershed Protection Association, Friends of Salmon River, and Friends of Big River appeal from the judgment entered in favor of defendant California Department of Parks and Recreation (the department) and real party in interest Mendocino Redwood Company, LLC (MRC) on plaintiffs petition for writ of mandate, which sought to compel the department to prohibit MRCs use of existing logging roads in the Big River Unit of the Mendocino Headlands State Park (the park). The trial court granted summary judgment in favor of the department and MRC on the ground that MRC has an enforceable easement that allows it to use the park roads to harvest its timber. Court affirm.

Thomas F. appeals from the dispositional order of the juvenile court, and challenges two conditions of probation. He argues that the condition vesting the probation department with discretion to place him in juvenile hall was unauthorized by statute, and violated his due process rights. He also contends the court abused its discretion by imposing gang-related probation conditions in his case.
The Attorney General filed a motion to dismiss this appeal as moot, [s]ince appellants juvenile wardship has been dismissed in light of his adult conviction and commitment to state prison, and he is no longer subject to the juvenile courts probation conditions. Appellants counsel has informed the court that he does not intend to file opposition to the motion to dismiss. Because the appeal challenges only conditions of probation under an order of wardship that has been dismissed by the juvenile court, Court dismiss this appeal as moot.

The Department of Motor Vehicles (DMV) appeals from a judgment granting Philip Feng Ming Kuos petition for a writ of administrative mandamus. The judgment on Kuos petition set aside the DMVs four-month suspension of Kuos driving privileges imposed for his driving with a blood alcohol level over the legal limit. Court reverse.

Robert Escamilla appeals from the judgment entered after a jury convicted him of attempted voluntary manslaughter, a lesser included offense of attempted premeditated murder, and found true the special allegation he had personally used a firearm to commit the offense. Escamilla contends the trial court erred by failing to instruct the jury on elements of assault with a deadly weapon as either a lesser included or lesser related offense of attempted murder. He also argues the trial courts imposition of upper term sentences for attempted voluntary manslaughter and the firearm use enhancement based on its own factual findings concerning aggravating circumstances violated his right to a jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Court affirm.

Appellants, Otto and Gloria Gonzalez, challenge the amount of noneconomic damages awarded to Mr. Gonzalez in this action from an automobile collision. His claim is precluded by his failure to seek a new trial on the issue of insufficiency of damages. Court affirm the judgment.

Defendant and appellant Stacey Thomas appeals from the judgment entered following a jury trial that resulted in his convictions for forcible rape and sexual penetration with a foreign object. Thomas was sentenced to 16 years in prison. Thomas contends: (1) the trial court abused its discretion by allowing the disabled adult victims testimony without first ascertaining whether she understood the duty to tell the truth; (2) the trial court erred by failing to give a unanimity instruction; (3) instruction with CALJIC No. 2.11 misled the jury; (4) admission of a nurse practitioners testimony violated his confrontation rights (Crawford v. Washington (2004) 541 U.S. 36); and (5) imposition of upper term sentences violated his right to a jury trial (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856]). Court affirm.

A.H. appeals an order of the juvenile court committing him to the California Youth Authority (CYA)[1]for a maximum term of six years six months based on offenses found true in multiple sustained juvenile wardship petitions. (Welf. & Inst. Code, 602, 777.) His most recent offenses include assault by means of force likely to produce great bodily injury (Pen. Code[2], 245, subd. (a)(1)), battery on school, park or hospital property ( 243.2, subd. (a)), and escape from a juvenile facility (Welf. & Inst. Code, 871, subd. (a)). His past offenses include battery and grand theft of person. ( 487, subd. (c).) He contends the court abused its discretion in committing him to CYA, and that the commitment violates his federal due process rights. Court affirm.