CA Unpub Decisions

Gene L., the father of Alissa L., seeks extraordinary writ relief (Welf. & Inst. Code, 366.26, subd. (l); Cal. Rules of Court, rule 8.452); he challenges the juvenile court order terminating reunification services after 18 months and setting a section 366.26 hearing. Gene contends there was insufficient evidence that returning Alissa to his custody would create a substantial risk of detriment to her.
Court issued an order to show cause, the San Diego County Health and Human Services Agency (Agency) responded, and the parties waived oral argument. Court review the petition on its merits and deny it.

A jury convicted Raymundo Lopez and Vincent Rodriguez for crimes arising from an armed carjacking and a subsequent shooting of a police officer, who was shot three times. The defendants were convicted as follows: in count 1, both defendants were convicted of premeditated attempted murder of a police officer (Pen. Code, 187, subd. (a), & 664);[1]in count 2, Lopez was convicted of being a felon in possession of a firearm ( 12021, subd. (a)(1)); in count 3, Lopez was convicted of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)); in count 4, Lopez was convicted of receiving stolen property ( 496, subd. (a)); and, in count 5, Rodriguez was convicted of a carjacking ( 215, subd. (a).). The jury found true that both defendants committed the crime in count 1 and Rodriguez committed the crime in count 5 for the benefit of a criminal street gang ( 186.22, subd. (b)(4)). The jury also found true a number of firearm enhancement allegations, including that Rodriguez personally used a firearm ( 12022.53, subd. (b)) and that Lopez, who also was acting as the principal for Rodriguez, personally used and discharged a firearm causing great bodily injury ( 12022.53, subds. (b), (c), (d), & (e)(1)). Rodriguez was sentenced to 65 years to life and Lopez was sentenced to 40 years to life.
In appealing his judgment, Rodriguez challenges on evidentiary and constitutional grounds the application of the natural and probable consequences doctrine as the basis for his attempted murder conviction. Rodriguez also raises an equal protection challenge to the criminal street gang provision of the firearm enhancement statute. In his appeal, Lopez claims the criminal street gang enhancement for his attempted murder conviction must be reversed because it was not alleged in the information. Lopez also asserts a claim under Blakely v. Washington (2004) 542 U.S. 296.
For the reasons provided below, Court reject the claims of both defendants and affirm the judgment.

Edward and Anita Hollowell borrowed money from Rolf Schwalbe, Mary Lee Schwalbe, and Leonard F. Jones (Schwalbe and Jones) and gave Schwalbe and Jones a deed of trust on their property to secure the loan. Later, the Hollowells borrowed more money from Schwalbe and Jones, and gave Schwalbe and Jones a second deed of trust. The Hollowells obtained insurance against loss to the property from defendant Fire Insurance Exchange (FIE). The insurance policy included an endorsement making Schwalbe and Jones the loss payees. Under the endorsement, if a loss occurs and FIE is not liable to the Hollowells for the loss (because, for example, the loss is the Hollowells fault), FIE has the option of receiving an assignment from Schwalbe and Jones of the Hollowells debt and deed of trust in exchange for paying Schwalbe and Jones the amount owed on the Hollowells debt.
The residence was destroyed by fire. The Hollowells filed a claim with FIE, which denied the claim on the ground that the loss was the Hollowells fault.
The property was subsequently purchased by plaintiff El Dorado Homes, LLC (El Dorado), who paid the debt secured by the second deed of trust. El Dorado and Schwalbe and Jones entered into an agreement whereby Schwalbe and Jones purported to assign to El Dorado their claim against FIE for insurance proceeds, provided that any proceeds received must be first applied to the debt. The agreement does not contemplate the possibility that FIE will exercise its option to receive an assignment of the debt and deed of trust.
El Dorado, as Schwalbe and Joness assignee, sued FIE to recover the proceeds. FIE moved for summary judgment, which the trial court granted. We hold that the judgment must be reversed because FIE has failed to meet its initial burden of production with respect to a triable issue of material fact. FIE is required to demonstrate either that it has paid El Dorado the amount of the loss or that it has exercised its option to receive an assignment of the debt and deed of trust in exchange for payment of the amount of the debt. The judgment is reversed.

Defendant was convicted of four counts of committing a lewd act upon a child (Pen. Code, 288, subd. (a)). Count 1 was committed against victim R.R. Counts 2 through 4 were committed against victim A.G. The court sentenced defendant to the midterm of six years on count 1. The court imposed a consecutive two-year term on count 2 (one third the midterm) and two concurrent six year terms on counts 3 and 4 for a total prison term of 8 years. On appeal, defendant contends his convictions on counts 2 through 4 must be reversed because the court failed to give a unanimity instruction. The People concede the court erred in failing to give a unanimity instruction but contend the error was harmless. Court agree and affirm the judgment.

Appellant, challenges his conviction for felony assault with great bodily injury. He contends: (1) There was not substantial evidence of great bodily injury; (2) the juvenile court abused its discretion by finding the offense to be a felony rather than a misdemeanor; and (3) should he reoffend, the Sixth Amendment prevents the use of his felony juvenile adjudication as a strike under the three strikes law (Pen. Code, 667). Court affirm.

Rita Batterson, as guardian ad litem for appellant Marcy Batterson, appeals from the entry of judgment granting summary judgment to respondents Stanislaus County and South San Joaquin Irrigation District. Rita contends that the trial court erred in granting summary judgment on the basis of Government Code section 831.7 because there were triable issues of fact relating to whether respondents failed to warn or guard against dangerous conditions. Court affirm.

Defendant and cross-complainant Riley Air Charter, Inc. appeals from a judgment in favor of plaintiff and cross-defendant Cal Aero Jet Center, LLC (Cal Aero) and plaintiff Phillip Oldridge. Cal Aero recovered damages for breach of a written lease of an aircraft. Defendant claims the court erred in admitting parol evidence to vary the terms of the lease and as a result the damages awarded were incorrect. It also contends the statement of decision was inadequate because it failed to explain the basis for admitting parol evidence and computation of the damages awarded and did not discuss the defense of failure to mitigate damages. Court reverse and remand for the court to calculate an additional amount of rent to be paid to defendant and otherwise affirm.

Cryoport Systems (Cryoport) sued CNA Insurance Companies, Continental Casualty Company, and Valley Forge Insurance Company (hereafter collectively and in the singular CNA), for violation of the unfair competition law (UCL). (Bus. & Prof. Code, 17200 et seq.) CNAs demurrer to the original complaint was sustained, with leave to amend, because Cryoport failed to allege standing (i.e., that it suffered injury in fact and lost money or property) as required by Proposition 64s amendments to the UCL. ( 17204, as amended by Prop. 64, 3; see also 17203, as amended by Prop. 64, 2.) In its amended complaint, Cryoport again failed to allege its own standing and CNAs demurrer was sustained without leave to amend. On appeal from the judgment dismissing its complaint, Cryoport argues reversal is required so it may attempt to amend its complaint to substitute in a new plaintiff who in fact has standing to pursue the action. Court disagree and affirm the judgment.

Father appeals from the juvenile courts order terminating his parental rights to Briana L., who is now 10 years old. (See Welf. & Inst. Code, 366.26; further undesignated statutory references are to this code.) Father contends the juvenile court erred by finding Briana to be adoptable. Substantial evidence supports the courts conclusion, and Court therefore affirm.

Defendant was convicted after jury trial of attempted murder (Pen. Code, 664, 187, subd. (a); count 1), attempted murder of a peace officer ( 217.1, subd. (b); count 2), assault with a firearm on a peace officer ( 245, subd. (d)(1); count 3), exhibiting a firearm at a peace officer ( 417.8; count 4), and possession of a firearm by a felon ( 12021, subd. (a)(1); count 5). The jury also found true allegations that defendant personally used a firearm during the commission of counts 1 through 3 ( 12022.53, subd. (b)). The jury found defendant not guilty of a second count of possession of a firearm by a felon (count 9), two counts of actively participating in a criminal street gang ( 186.22, subd. (a); counts 6 & 10), and two counts of second degree robbery ( 211; counts 7 & 8). In a bifurcated proceeding, defendant admitted having suffered a prior strike ( 1170.12) and having served three prior prison terms ( 667.5, subd. (b)). The trial court sentenced defendant to the indeterminate term of 30 years to life, consecutive to the determinate term of 13 years.
On appeal defendant contends that the evidence is insufficient to support the attempted murder verdicts in counts 1 and 2. Defendant separately contends, and the Attorney General concedes, that the attempted murder conviction in count 1 must be reversed because it is a lesser included offense of the attempted murder of a peace officer conviction in count 2. Court agree with the Attorney Generals concession, and find sufficient evidence to support the jury verdict of attempted murder of a peace officer. Therefore, Court modify the judgment by vacating the attempted murder conviction on count 1 and affirm the judgment as so modified.

Defendant was convicted of the first degree murder of Cesar Delatorre (count 1), with an enhancement for personal discharge of a firearm, causing death. He also was convicted of possession of a controlled substance (count 2), because methamphetamine was found in his pocket when he was arrested. He was sentenced to prison for 50 years to life on count 1, plus the upper term of three years on count 2. He contends: (1) The trial court should not have refused to instruct that a felony murder does not occur when a felony is committed in the course of an intentional murder. (2) Imposition of the upper term on count 2 violated his Sixth and Fourteenth Amendmentrights to a jury trial, under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856] (Cunningham).
At court's request, both sides have provided supplemental briefing on the effect of Cunningham, which was decided after the initial briefing was completed.
Court reject appellants instructional error, find no error from imposition of the upper term on count 2, and affirm.

A modification decision.

Two commercial tenants sued their landlord for failing to properly maintain the building. The tenants shops were damaged by water, forcing them out of business. The trial court sustained the landlords demurrers to the second amended complaint, without leave to amend. On appeal, the tenants ask for leave to file a third amended complaint. Court affirm the order of dismissal. There is no reasonable possibility that the tenants can succeed by amendment because their lease agreements expressly (a) make the tenants responsible for repairs, and (b) exempt the landlord from liability for damage to the tenants property or loss of income.

This is a probate appeal concerning the Robert B. Aubry estate. Plaintiff, Nina Ringgold, appeals from the orders rendered on October 28, 2005. On October 28, 2005, the probate court denied: as untimely a preemptory challenge; a request for long cause trial setting; and Ms. Ringgolds petition for probate of a will. Court conclude: the scope of this appeal must be limited to the October 28, 2005 orders; the preemptory challenge order is not appealable; the order denying the probate petition should be affirmed; and the appeal from the order denying a long cause trial setting is moot.