CA Unpub Decisions

A jury found Roderick Thomas Rossignol guilty of first degree murder (Pen. Code, 187, subd. (a)) and specifically returned findings that the offense was committed with premeditation and deliberation, but not during the course of a rape or attempted rape. The trial court sentenced Rossignol to prison for an indeterminate term of 25 years to life.
Rossignol appeals, contending that the evidence of premeditation and deliberation in this case was insufficient for first degree murder and that the trial court prejudicially erred by not giving CALJIC No. 8.73 and by requiring the jury to return special findings. In the alternative, Rossignol claims he was denied the effective assistance of counsel if either of the claimed errors regarding the instructions or verdicts is considered waived on appeal. Court affirm.

Defendants appeal from their convictions of the first degree murder of Johnny Rudas, with special circumstances of kidnapping and torture, and their sentences of life without parole. Both defendants contend the trial court erred in failing to give accomplice instructions as to witness Amanda Chamalbide. Jones contends the trial court prejudicially erred in (1) admitting her statement that was made in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) refusing her request to instruct the jury on the defense of duress; (3) giving accomplice instructions as to witness Jeff Bastion; and (4) admitting unnecessarily gruesome crime scene and autopsy photographs into evidence. Malagon contends (1) his trial counsel provided ineffective assistance by failing to object to evidence of Joness assertive conduct in leading the police to the murder scene; and (2) the trial court committed prejudicial error in denying his motions to (a) suppress certain physical evidence seized from his person during an unreasonable search, and (b) suppress his nonMirandized statements to the police at the time of his arrest. Malagon also argues cumulative error, and Jones joins in Malagons arguments to the extent they benefit her. Court find no prejudicial error, and affirm.

Defendant was convicted by jury trial of first degree murder for the stabbing death of his friend, Richard Bray, who made advances toward defendants girlfriend. Defendant was sentenced to 25 years to life in prison, plus one year for a weapon enhancement. On appeal, he contends (1) insufficient evidence supported the conviction for first degree murder and (2) insufficient evidence supported the conviction for felony murder. Court conclude there was substantial evidence defendant committed first degree murder and therefore Court affirm the judgment.

By information filed February 22, 2006, appellant Ronald Naff was charged with possession or purchase of cocaine base for purposes of sale (Health & Saf. Code, 11351.5). On April 4, appellant made, and the court denied, a motion to suppress evidence (Pen. Code, 1538.5). On April 17 and again on April 24, appellant moved for the appointment of substitute counsel, pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court denied both motions. On April 26, a jury convicted appellant of the charged offense. On May 24, the court imposed the upper term of five years; suspended execution of sentence; and ordered appellant committed to the California Rehabilitation Center pursuant to Welfare and Institutions Code section 3051. The instant appeal followed.
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d. 436.) Appellant has not responded to this courts invitation to submit additional briefing.F ollowing independent review of the record, Court have concluded that no other reasonably arguable legal or factual issues exist.

In 2005, this court reversed juvenile court orders terminating appellants rights to her sons after respondent Madera County Department of Social Services/Child Welfare Services (the department) failed to comply with the notice requirements of the Indian Child Welfare Act (42 U.S.C. 1901 et seq.; ICWA). Notably, we concluded there were no other grounds for reversal. Our disposition consequently was a limited reversal, directing the juvenile court to assure that the department made the necessary inquiry and gave the requisite notice under ICWA. We added that if appellants sons were ineligible for Indian tribal membership, the court should reinstate its orders terminating parental rights. The appeal is dismissed.

After a dispute concerning an incomplete home remodeling job, plaintiff, contractor sued defendants, homeowners Ghyath Issak and Barbara Weber, for breach of contract and related causes of action. He sought recovery of approximately $11,000. Defendants answered by principally alleging that plaintiff was not a licensed contractor. (Bus. & Prof. Code, 7031, subd. (a) [unlicensed contractor may not sue for unpaid work that requires a license].) They also filed a cross-complaint for fraud and related causes of action. They principally sought reimbursement of the amount paid to plaintiff. ( 7031, subd. (b) [person may sue unlicensed contractor to recover compensation paid for work that requires a license].) After an unreported court trial, the trial court found for defendants on the complaint and cross complaint. It awarded defendants approximately $27,000 in reimbursement plus $10,000 in punitive damages. It later added to the award $90,000 in contractual attorney fees and approximately $7,000 in costs. On appeal, plaintiff contends that the trial court erred as a matter of law by finding that he was an unlicensed contractor. Court affirm the judgment.

Defendant was found guilty of several charges growing out of a violent assault on his girlfriend. After the only two African Americans in the jury pool were excused, he unsuccessfully challenged the constitutionality of the countys jury pool selection procedures. In addition, before deliberations began, a sitting juror was discharged by the court after making remarks to other jurors suggesting that she believed defendant was being treated unfairly by the prosecution. Defendant contends that the trial court erred in concluding that he had failed to demonstrate that the jury pool selection process was unconstitutional and in discharging the juror. Court affirm.

Pursuant to a negotiated plea agreement, defendant Aman Melles pleaded no contest to a charge of felony petty theft with a prior and, in exchange, received a promise that three prior felony convictions would be stricken for sentencing purposes and that he would be placed on probation. The court granted probation, but after defendant violated the terms of his probation, probation was revoked and defendant was sentenced to the upper term of three years in state prison. Defendant argues three sentencing errors on appeal: (1) that the aggravating factors cited by the trial court when it imposed the upper term were not supported by substantial evidence; (2) that the trial court breached the terms of the plea agreement when it cited the three prior felony convictions as factors in aggravation supporting imposition of the upper term; and (3) that the imposition of the upper term violated the Sixth and Fourteenth Amendments of the United States Constitution pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
On January 18, 2007, Court filed an opinion in which we rejected all of defendants arguments. The last of those arguments was rejected on the basis of Peoplev. Black (2005) 35 Cal.4th 1238 (Black). Four days after Court filed it's opinion, the United States Supreme Court concluded in Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham) that Black had misapplied Blakely. Court granted rehearing to consider the impact of Cunningham on defendants last contention. With appropriate changes in our initial opinion, Court again conclude that defendants arguments do not establish error, and affirm the judgment of conviction.

Glenna D. and Blaine D. appeal judgments of the juvenile court terminating their parental rights to their minor son Dakota D. under Welfare and Institutions Code section 366.26. Glenna and Blaine challenge the sufficiency of the evidence to support the court's findings Dakota is adoptable and the beneficial parent child relationship exception of section 366.26 did not apply to preclude terminating their parental rights. Court affirm the judgments.

In a bifurcated trial, a jury found defendant Eugene Rushing guilty of one count of second degree robbery. (Penal Code, 211.) After a court trial on defendants priors, the trial court found all the allegations of defendants prior convictions true. On appeal, defendant claims that the trial court denied him his federal constitutional right to a jury trial and due process when it sentenced him to the upper term in violation of United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey(2000) 530 U.S. 466 (Apprendi). Defendant has submitted a supplemental brief asserting that Cunningham v. California (2007) 549 U.S., 2007 Lexis 1324, 75 U.S.L.W. 4078 (Cunningham) requires that a jury find aggravating factors before a trial court may impose the upper term. Court conclude that defendant waived this claim by failing to object at the time of sentencing. Even if his claim were preserved, Cunningham reaffirms that prior convictions can increase the existing penalty. Defendant also asserts that his attorney rendered ineffective assistance of counsel when he failed to challenge the sentence. As the record fails to detail the reasons why counsel acted as he did, we conclude that defendant did not meet his burden in proving defense counsel was ineffective. Finally, Court agree with the parties that the abstract of judgment fails to reflect the correct statute under which the five-year enhancement was imposed. Consequently, Court direct the trial court to prepare an amended abstract with the correct statutory citation.

Plaintiff and appellant Albert R. Arzate (hereafter plaintiff) appeals from a judgment entered after the trial court sustained demurrers to his first amended complaint and denied his motion for leave to file a second amended complaint.
Court need not discuss the factual or procedural history of this case further, because plaintiff has completely failed to meet his burden of demonstrating error and prejudice, either with respect to the sustaining of the demurrer or with respect to the denial of leave to file a second amended complaint.
It is not our function to examine undeveloped claims or to make arguments for the parties. (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.) The judgment is therefore affirmed. Costs on appeal are awarded to defendants and respondents.

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450 - 8.452 [formerly rule 38 - 38.1] (rule)) to either regain custody of or obtain continued reunification services for her three children or to compel respondent court to place the children with their maternal grandmother. Court conclude her petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court dismiss the petition as facially inadequate

This appeal concerns an insurance coverage dispute between an excess insurer and a primary insurer over the obligation to defend a housing developer in a construction defect case. The court determined the excess insurer, Insurance Company of the State of Pennsylvania (ISOP), had an obligation to pay the developers defense costs. ISOP asserts other carriers providing coverage for several subcontractors, and which named the developer as an additional insured, had the duty to provide defense coverage. It asserts the California rule of horizontal exhaustion required the payment from these primary policies before any excess or umbrella policies could be triggered. Court conclude the trial court got it right. The judgment is affirmed.

The Department of Public Works (DPW) of the City and County of San Francisco (City) issued three notices of violation to appellant Broderick Harrison for illegally posting signs on City owned utility poles. Prior to the conclusion of an administrative hearing on these infractions, Harrison filed a petition for writ of mandate, prohibition, and declaratory and injunctive relief in superior court. His petition alleged that the DPW procedures used to assess administrative penalties for certain littering and nuisance violations violated his constitutional rights. The superior court denied Harrisons petition, and he now appeals.
After completion of briefing in this court, the City and Harrison reached a settlement and notified us that all three notices of violation against Harrison had been dismissed. Thus, before we reach the merits of Harrisons contentions, Court must determine whether this matter has been rendered moot. Court conclude that it has, and accordingly dismiss the appeal.