CA Unpub Decisions

A jury convicted Agapito Santiago Martinez of two counts of committing a lewd act upon a child and one count of burglary and found true certain enhancements. Martinez appeals, contending: (1) insufficient evidence supported the burglary conviction; (2) the trial court erred by not sua sponte instructing the jury on the defense of unconditional possessory right to enter; and (3) his counsel provided ineffective assistance. Court reject his contentions and affirm the judgment.

Defendant appeals an order that he register as a sex offender under Penal Code section 290. He contends: (1) the evidence is insufficient to support the finding the crimes were committed for sexual gratification or as a result of sexual compulsion; and (2) requiring Miller to register as a sex offender violates his due process rights because registration is punishment and requires a jury make the relevant findings beyond a reasonable doubt.
The order is affirmed.

A jury found defendant guilty of theft or embezzlement from an elder by a caretaker in violation of Penal Code section 368, subdivision (e)., Defendant was sentenced to an upper term of four years in state prison. On appeal, defendant contends (1) his due process right was violated when the trial court refused to allow him to present witnesses at the sentencing hearing; (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) U.S., [127 S .Ct. 856, 868] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term; and (3) the abstract of judgment must be corrected to reflect the correct amount of fines imposed by the trial court. Court agree, as we must, that defendants upper term sentence runs afoul of Cunningham. Accordingly, Court vacate defendants sentence and remand the matter to the trial court for further proceedings consistent with this opinion.

Defendant was charged in a consolidated fourth amended information with having committed seven offenses in 2003 and 2004. In counts 1, 2, and 3, defendant was charged with possessing a controlled substance (Health & Saf. Code, 11377, subd. (a); count 1), carrying a dirk or dagger (Pen. Code, 12020, subd. (a)(4);count 2), and false personation (Pen. Code, 529; count 3) on September 28, 2003.
In count 5, defendant was charged with the second degree robbery of Stanley Crabaugh, a pizza delivery man, on December 8, 2003. ( 211; count 5.) It was further alleged that defendant personally used a firearm in the commission of the robbery. ( 12022.5, subd. (a), 12022.53, subd. (b).) In counts 4 and 6, defendant was charged with assaulting Debra Calvelli (Debra) with a deadly weapon, a knife ( 245, subd. (a)(1); count 4), and making criminal threats on Debra ( 422; count 6) on December 10, 2003.
In count 7, defendant was charged with attempting to dissuade a witness, Debra, from testifying against him while he was in jail in January 2004, awaiting his preliminary hearing on counts 4 and 6. ( 136.1, subd. (a)(2); count 7). Finally, it was alleged that defendant had one prior serious felony conviction ( 667, subd. (a)), which also constituted a prior strike conviction ( 667, subds. (b)(i), 1170.12, subds. (a)-(d)). Defendant admitted the truth of the prior conviction allegation.
A jury found defendant guilty as charged in counts 1 through 7, and found true the personal use allegation in count 5. Defendants motion to release juror information for purposes of bringing a motion for a new trial, and defendants motion for a new trial, were denied. Defendant was sentenced to a total term of 27 years 4 months in prison, and appeals.
Defendant contends the trial court: (1) erroneously granted the Peoples motion to consolidate counts 1 through 7, which were originally filed in three separate actions, for trial; (2) erroneously refused to allow him to question a witness regarding a rifle found near the scene of the robbery on December 9, 2003, the day after the robbery; and (3) erroneously refused to instruct the jury on lesser related offenses in counts 3 and 4.
Defendant further contends that: (4) insufficient evidence supports his conviction in count 3 for false personation; (5) the trial court erroneously overruled his objection to the admission of tape recordings of his telephone conversations on grounds they were not properly authenticated; and (6) the trial court erroneously denied his petition to release juror identifying information for purposes of a motion for a new trial.
Finally, defendant contends (7) the trial courts imposition of the upper term on count 5 and consecutive terms on counts 1 through 5 and 7 violated his federal constitutional right to a jury trial. Court conclude that the matter must be remanded for resentencing. In all other respects, Court affirm the judgment.

Donna K. (grandmother), the maternal grandmother of minors R.B. (born in 1998), A.B. (born in 1999), S.B. (born in 2000), H.B. (born in 2002), and D.B. (born in 2003), appeals from (1) the denial of her petition under Welfare and Institutions Code section 388 petition, (2) the failure to order sibling visitation for H.B. when terminating parental rights; (3) the denial of her motion to relieve minors counsel due to a conflict of interest, (4) the denial of her request for a bonding study, (5) the juvenile courts failure to find the sibling relationship exception to adoption applied, and (6) the finding that notice requirements of the Indian Child Welfare Act (ICWA) had been complied with. Counsel for H.B. has moved to dismiss the appeal as moot. Grandmother did not file any opposition to the motion. Court agree with H.B.s position that the appeal is moot, and Court therefore order that the appeal be dismissed.

After a short cause divorce trial on visitation and support issues, the trial court awarded wife child support of $713 per month and spousal support of $939 per month. Her former husband, Edgar Williams (husband), appeals, contending the trial court abused its discretion in awarding spousal support in an amount which is unsupported by the evidence. Finding no abuse of discretion, court affirm.

Petitioner, mother seeks review by means of extraordinary writ (Welf. & Inst. Code, 366.26, subd. (l))[1]of an order denying her reunification services with respect to her daughter N.H., and setting a selection and implementation hearing for the minor. ( 361.5, subd. (f), 366.26). The trial court denied services pursuant to section 361.5, subdivision (b)(10)that reunification services as to a sibling of N.H. had been terminated due to failure to reunify and that mother had subsequently failed to make a reasonable effort to treat the problems that led to removal of the sibling . . . .[2] ( 361.5, subd. (b)(10).) Court deny the petition.

In this petition for writ relief, mother asks Court to vacate the juvenile courts order terminating reunification services and setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26 for her daughter, Alyssa. She asserts that there was insufficient evidence to support the finding of substantial detriment if Alyssa were returned to her custody. Court disagree and, accordingly, Court deny the petition.

Following a contested jurisdiction hearing, the juvenile court found true the allegations that appellant K.W., a minor, committed second degree robbery (Pen. Code, 211, 212.5, subd. (c)), a felony, and vandalism causing less than $400 damage (Pen. Code, 594, subd. (b)(2)(A)), a misdemeanor. Following the subsequent disposition hearing, the court adjudged appellant a ward of the court and placed him on probation, with various terms and conditions, including that he not possess any weapons or drugs or associate with any person in possession of any weapons or drugs. On appeal, appellant argues that (1) these conditions are invalid, and (2) another probation condition imposed by the court, requiring appellant to submit to searches by law enforcement officers, is not accurately set forth in the minute order. The People concede each of these points. Court modify the challenged conditions and direct the court to prepare an amended minute order that so indicates and that conforms to the courts oral pronouncement of conditions of probation.

Justin H. appeals from a juvenile courtdetention order. The court found that Justin violated the terms and conditions of his probation during his residency in the juvenile Breakthrough program, ordered him continued as a ward of the court, and committed him to serve 90 days consecutive. Justin argues (1) the county failed to establish the existence of the specific probationary order he is alleged to have violated; and (2) the evidence was insufficient to support the conclusion he committed the particular offense which was the primary basis for the courts order. Court find neither contention persuasive, and affirm the order.

Plaintiff sued defendant, trustee of the Cynthia Court Trust #2331 (seller), seeking specific performance of a real estate purchase contract. His complaint also sought damages for fraud against seller, plus defendants Peggy Henrichsen and Cornerstone Properties. After a nonjury trial, the court denied specific performance, but awarded plaintiff nearly $47,000 in damages against seller for his repairs to the property before the seller removed him from the premises.
Both parties appeal. Plaintiff attacks the courts denial of specific performance, claiming sellers failure to complete termite repair work precluded him from acquiring the financing essential to complete his purchase of the property. He also contends the court erred by not awarding him damages for additional repair expenses allegedly caused by defendants failure to disclose the absence of building permits. In their appeal, defendants argue the court erred by failing to expressly enter judgment in their favor on the fraud claim and by awarding plaintiff quantum meruit relief.
Court conclude plaintiffs claims lack merit and affirm that portion of the judgment denying specific performance of the purchase agreement. Court agree with defendants claims and direct the judgment be amended to declare plaintiff take nothing on his fraud cause of action, and to reverse that portion of the judgment awarding plaintiff quantum meruit relief.

Defendant appeals from a judgment entered after a jury found him guilty of carrying a concealed dirk or dagger, street terrorism, and assault with a deadly weapon. The jury found true the enhancement allegations that defendant personally used a knife and inflicted great bodily injury in the commission of the assault with a deadly weapon offense, and committed that crime for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by members of that gang.
Defendant contends the enhancement finding that he committed the assault with a deadly weapon for the benefit of a criminal street gang must be stricken because (1) the trial court erroneously admitted an expert witnesss testimony regarding defendants specific intent, and (2) defendant received ineffective assistance of counsel. Defendant also contends the trial court erred by imposing the upper term for each count based on aggravating factors found true by the trial court, not by a jury. Court affirm.

This case arises from Marie Whytes decision to donate her body to the medical school at the University of California, Irvine (UCI), upon her death in July 1998, pursuant to a body donation agreement (Donation Agreement) she executed in 1993. The Donation Agreement did not require UCI to return Maries body to her relatives or other persons after scientific use, but instead assigned UCI responsibility for final disposition of [her] body . . . in accordance with the State Code. Following media reports in September 1999 concerning problems in UCIs Willed Body Program (WBP), Maries son, James Whyte, and his wife, Pamela Whyte, separately sued the Regents of the University of California (Regents) on a number of different theories. The trial court consolidated the couples cases, along with similar pending actions against the Regents, and James and Pamela each appeal from aspects of the trial courts entry of judgment after sustaining demurrers to some of their causes of action and granting summary judgment on others. The judgment is affirmed.

Plaintiff appeals the trial courts order granting defendant Forster Ranch Estates Community Associations (Association) special motion to strike. (Code Civ. Proc., 425.16; all further statutory references are to this code.) Plaintiffs complaint for declaratory relief alleged the Association impliedly approved her home building plans by failing to review them within the time specified under the Associations governing documents. The trial court determined plaintiffs complaint arose out of petitioning activity under the anti-SLAPP statute because it was an attempt to circumvent a prior judgment against her father mandating removal of approximately 9,000 cubic yards of dirt for the property. Plaintiff contends the trial court erred by dismissing her case under the anti-SLAPP statute. She argues her complaint did not directly attack the prior judgment and therefore did not arise from it.
Court conclude the present lawsuit seeks to overturn the injunction granted to the Association in the prior lawsuit. Forcing the Association to relitigate the injunction and other issues previously resolved in the earlier cases burdens the Associations right to petition protected by the anti-SLAPP statute. We further conclude plaintiff cannot demonstrate a probability of prevailing on the merits because her plans do not comply with the injunction and the Association timely disapproved them by its blanket refusal to review or approve any plans before compliance with the injunction. Accordingly, Court affirm the trial courts order striking the complaint.