CA Unpub Decisions

A jury convicted defendant, of the first degree murders of Joseph Phillips, who was over the age of 60, and Phillipss grandson, Joseph Daugherty. The jury also found defendant guilty of first degree residential burglary and possession of a controlled substance. The jury found true special circumstance allegations of felony-murder (burglary) and multiple murder convictions. The jury also found defendant had personally used a deadly or dangerous weapon in the commission of the offenses.
The trial court sentenced defendant to an aggregate sentence of 10 years plus life without the possibility of parole. The trial court also ordered defendant to pay a $10,000 restitution fine and suspended a second $10,000 parole revocation restitution fine pursuant to Penal Code section 1202.45.
Defendant claims the felony murder special circumstance must be stricken because there was insufficient evidence the killings were in the commission of a burglary. He also claims there was insufficient evidence to convict him of burglary. He claims the trial court erred in allowing inadmissible hearsay statements of one of the victims. He claims the imposition of a six year sentence for burglary violated double jeopardy and section 654. Finally, he claims the imposition of a parole revocation fine was unauthorized. Court agree that the parole revocation fine must be stricken, but otherwise affirm the judgment and sentence.

Judy Roberts appeals the dismissal of her cross-complaint for declaratory relief based on equitable indemnity against Eberhard Roofing, Inc. Court find that Roberts cannot state a cause of action for equitable indemnity, and so affirm.

In this action for employment discrimination under the Fair Employment and Housing Act (FEHA), plaintiff Jackie Spencer appeals from the judgment entered in favor of defendant, Department of Water Resources (DWR). She contends the trial court erred in granting DWRs motion for judgment on the pleadings on the ground she had failed to exhaust her administrative and judicial remedies. She also asserts that to the extent the court granted the motion based on her failure to file any opposition to the motion, her attorneys failure to do so was excusable neglect and, therefore, the court abused its discretion in denying her subsequent motion to vacate the judgment. (Code Civ. Proc., 473 (further section references are to the Code of Civil Procedure unless otherwise specified).) Court affirm the judgment.

Defendant received an aggregate state prison term of 10 years four months, after being convicted by a jury of residential burglary (Pen. Code, 459 count III) and pleading guilty to two counts of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a) counts I and XI), three counts of possession of a smoking device (id., 11364 counts II, IV and XIII), two counts of possession of marijuana (id., 11357, subd. (b) counts V and XIV), one count of transportation of methamphetamine (id., 11379, subd. (a) count VI), and one count each of violating the Financial Responsibility Law (Veh. Code, 16028, subd. (a) count X), driving with a suspended drivers license with two prior convictions for the same offense (id., 14601.1, subd. (a) count IX) and unauthorized possession of a prescription drug (Bus. & Prof. Code, 4060 count XII), supplemented by his admissions to two on-bail enhancement allegations (Pen. Code, 12022.1 as to counts I and III).
Defendant contends that the court should have stayed the punishment for the three smoking device offenses (counts II, IV and VIII) pursuant to Penal Code section 654 (section 654) because, on each occasion, the devices were used only to consume the controlled substances that were also found in his possession. Court disagree and affirm the judgment.

The question posed by this appeal is whether the trial court abused its discretion by limiting defense cross examination of a witness who accused defendant Jerome Jackson Denny, Jr., of uncharged sexual misconduct 16 years earlier. Having been convicted of two counts of child molestation, defendant asserts he was denied his constitutional rights to confront his accuser, to present a defense, and to due process and a fair trial by the courts inappropriate constriction of his cross examination of his former sister in law, who, pursuant to Evidence Code section 1108, testified to alleged crimes for which defendant had never been charged or convicted. Court affirm because we cannot say the trial court abused its discretion (Evid. Code, 352) or that the prohibited cross examination would have produced a significantly different impression of [the witnesss] credibility to constitute a violation of defendants constitutional rights. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684] (Van Arsdall).)

Plaintiffs Concerned Citizens of West Point and William Doherty (collectively CCWP) filed a first amended petition for peremptory writ of mandate and complaint for declaratory and injunctive relief challenging fees imposed on new building construction by defendants West Point Fire Protection District and the West Point Fire Protection District Board of Directors (collectively the Fire District). CCWP appeals from the judgment entered after the court sustained the Fire Districts demurrer without leave to amend. We conclude CCWPs challenge was rendered moot by the Fire Districts effective rescission of Ordinance No. 2004-01 in July 2005. Accordingly, court reverse the judgment and direct the trial court to enter a new judgment dismissing the case as moot.

Defendant was found guilty of attempted premeditated murder (Pen. Code, 187, subd. (a), 664), possession of a short-barreled shotgun (id., 12020, subd. (a)), assault with a firearm (id., 245, subd. (a)(2)), and being a felon in possession of a firearm (id., 12021, subd. (a)(1)). The jury found true the enhancement allegations of shotgun discharge causing great bodily injury (id., 12022.53, subd. (d)), personal and intentional discharge of a firearm (id., 12022.53, subd. (c)), personal use of a firearm (id., 12022.5, subd. (a)(1)), and infliction of great bodily injury on a nonaccomplice (id., 12022.7, subd. (a)). After the jury found the prior violent felony conviction allegation to be true, the trial court sentenced defendant to a determinate term of nine years in state prison, followed by an indeterminate term of 39 years to life.
Defendant raises evidentiary error, ineffective assistance of counsel and abuse of discretion in denying his Romero motion. Court affirm the judgment.

A jury convicted defendant of grand theft and receiving stolen property, and the trial court found that defendant had a prior serious felony conviction, for first degree burglary in 1996, and had served prior prison terms. She was sentenced to state prison for an aggregate term of six years.
On appeal, defendant contends the evidence does not support her conviction for grand theft. The contention is frivolous. However, court modify the judgment to correct sentencing error.

In this family dispute over undeveloped land located in Amador County, defendants George Albert Bachich, Jr. (George) and Loren John Bachich (John)(collectively defendants) appeal from an interlocutory judgment of partition in favor of their cousin, plaintiff Robert Allen Bachich (Bob or plaintiff).
The subject property, Alpi Ranch, is jointly owned by the parties, but is used exclusively by John to run his cattle. In 1995, the parties entered into an agreement in which they divided their possessory interests in several pieces of land and adjusted their proportionate interests in Alpi Ranch but retained joint ownership of the ranch.
On appeal, defendants contend the agreement must be interpreted to prohibit partition of Alpi Ranch, partition is barred by principles of waiver, estoppel, and unfairness, and the trial court erred by excluding parole evidence of the circumstances surrounding the agreement and the parties intent at the time of contracting.
Court find no error and affirm the interlocutory judgment.

In April 2003, the Butte County Superior Court issued a restraining order restricting defendant Michael Vincent Thompsons contact with D.B. and her children.
Having undertaken an examination of the entire record, court find no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

This case involves a dispute over whether the plaintiffs retained their status as directors and whether defendants were properly elected as directors of the Sri Guru Nanak Sikh Temple (the Temple) under its articles of incorporation and bylaws. Plaintiffs allege they are the duly existing directors of the Temple and the individual defendants are persons who claim to be directors of [the] temple pursuant to an appointment allegedly made on June 5, 2005.
Plaintiffs successfully challenged the validity of the individual defendants appointment by a complaint filed pursuant to Corporations Code section 9418. On appeal, defendants argue the trial court erred in interpreting the bylaws. Court affirm the judgment.

On June 28, 2004, defendant Steven Raub stole a wallet belonging to a family member of his girlfriend, and used an ATM card that was in the wallet to make purchases totaling $544.38. In exchange for a sentence of two years and eight months in state prison, defendant pled no contest to theft of an access card and admitted having a prior serious felony conviction (strike).
On appeal, defendant contends the matter must be remanded to afford him the opportunity to withdraw his plea because (1) the trial court unilaterally imposed the terms of his release after it accepted the plea agreement, which means the release provisions did not amount to a valid Cruz waiver, and (2) any Cruz waiver was unenforceable because defendant did not knowingly waive his rights under section Penal Code 1192.5. (Further section references are to the Penal Code.) Court affirm the judgment.

Tanisha S. (conservatee) appeals from an order appointing the El Dorado County Public Guardian as conservator of her person and estate under the Lanterman-Petris-Short Act (LPS Act). (Welf. & Inst. Code, 5000 et seq.) She contends no substantial evidence supports the finding she was gravely disabled or the imposition of special disabilities. Court agree the evidence does not support the grave disability finding and reverse the order of appointment. Court therefore do not address conservatees contention regarding the imposition of special disabilities.

Defendant pled guilty to possession of heroin in prison, and the trial court imposed a stipulated sentence of four years in prison.
On appeal, defendant contends the trial courts imposition of an $800 restitution fine and an $800 parole revocation fine violated the plea agreement. Court reject the contention and affirm.