CA Unpub Decisions

A jury convicted Defendant of two counts of assault with a deadly weapon (a knife) (Pen. Code, S 245, subd. (a)(1)), kidnapping for the purposes of rape (S 209, subd. (b)(1)), and attempted rape (SS 261, subd. (a)(2), 664). The trial court sentenced him to an indeterminate term of 15 years to life and a consecutive determinate term of four years for various enhancements found true by the jury.
Defendant argues (1) the trial court erred in consolidating the two complaints filed by the People; (2) he received ineffective assistance of counsel; and (3) the aggravated kidnapping count was not supported by substantial evidence. Court disagree and affirm the judgment.

This is an appeal from an order for commitment of appellant as a sexually violent predator (SVP) as defined in Welfare and Institutions Code section 6600, the SVP law. Appellant contends the evidence was insufficient as a matter of law to establish one of the elements required for commitment under the SVP law, namely, that appellant has a mental disorder that currently makes it likely appellant will engage in sexually violent predatory criminal behavior unless confined within a secure facility. Court conclude that the evidence, while contested, was sufficient to permit a rational jury to conclude beyond a reasonable doubt that appellant, "because of a current mental disorder which makes it difficult or impossible to restrain violent sexual behavior, - presents a substantial danger, that is, a serious and well founded risk, that he or she will commit such crimes if free in the community." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922 (Ghilotti).) Accordingly, court affirm the judgment.

Appellant is an inmate in the Security Housing Unit (SHU) at the California State Prison in Corcoran. Appellant was convicted of second degree murder in Stanislaus County in 1991, and sentenced to an indeterminate life term with the possibility of parole.
Appellant's argument misconstrues the impact of the court's erroneous order on waiver of fees. It is undisputed that appellant filed his complaint on January 3, 2002. The court's erroneous order did not prevent the complaint from being filed or strike the complaint because he failed to make fee payments. Instead, the court's erroneous order permitted the complaint to be filed but prohibited appellant from filing additional motions or pleadings until he complied with the fee payment order. In the interim, appellant only tried to file a motion for appointment of counsel and for default against respondents based on their alleged failure to respond to the complaint. The court's erroneous fee waiver order did not toll the period for appellant to exhaust administrative remedies, and "proper" exhaustion was dependent upon the status of his administrative remedies at the time he filed or "brought" the complaint, on January 3, 2002. (Woodford, supra, 126 S.Ct. at pp. 2386-2388; Vaden v. Summerhill, supra, 449 F.3d at pp. 1049-1051.)
The judgment is affirmed.

A jury convicted appellant of murdering his daughter in law and attempting to murder his wife. Defendant contends the judgment should be reversed because of instructional error and prosecutorial misconduct. Court affirm the judgment.

Defendant was driving a stolen vehicle when he was apprehended by police officers. Defendant was convicted of six different crimes arising out of the arrest, including violations for driving a vehicle without the owner's consent or stealing a vehicle (Veh. Code, S 10851, subd. (a)) and receiving stolen property (Pen. Code, S 496d, subd. (a)). Defendant received a third strike sentence, with gang and prior prison enhancements, of 100 years to life, plus 14 years.
Defendant argues that he cannot be convicted of both auto theft and receiving stolen property. Court agree the dual convictions cannot stand and will order the conviction for receiving stolen property reversed. However, because the sentence on the receiving stolen property count was stayed pursuant to section 654, Defendant's sentence not change.

This is an appeal from an order committing appellant as a sexually violent predator (SVP) pursuant to Welfare and Institutions Code section 6600 et seq. (the SVP law). Appellant contends his SVP commitment, which runs through December 13, 2007, violates various constitutional protections. Court reject these claims and affirm the order.

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 [formerly rule 38-38.1]) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter A. Court deny the petition.

Tyrell F. appeals from an order terminating his parental rights (Welf. and Inst. Code, S 366.26 ) to his daughter. Appellant's appointed appellate counsel submitted a letter dated January 10, 2007, advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). By order dated January 18, 2007, court extended time for appellant to personally file a letter brief.
Appellant has filed such a letter brief with this court. In it, he asks this court to reverse the termination order and an order denying his petition for reunification services as well as grant him visitation with his daughter. He bases his requests on what he perceives to be a strong relationship between himself and his daughter such that the lack of visitation, the lack of services and the termination of his rights are not in her best interest.
The appeal is dismissed.

This case concerns the parties' rights over an access easement created by a municipality when it abandoned a public street. After a nonjury trial, the court entered a judgment for plaintiff and cross-defendant BP West Coast Products LLC (plaintiff), finding it is "the beneficial owner of a non-exclusive 30-foot wide access easement" across parcels owned by defendant and cross-complainant GVD Commercial Properties, Inc. (defendant) and a third party not involved in this appeal. The trial court also denied defendant's request for a declaration that a cul-de-sac located at one end of the former public street, now encompassed within the boundaries of plaintiff's parcel, is also burdened by the access easement. Court affirm the trial court's judgment.

Defendant appeals from the judgment sending him to prison for an indeterminate term of 15 years to life and a determinate term of six years, eight months, following a jury's conviction of street terrorism, attempted premeditated murder, assault with a deadly weapon and car theft. (See Pen. Code, SS 186.22, subd. (a), 187, 245, subd. (a)(1), 664; Veh. Code S 10851.) All but the first crime was committed for the benefit of a criminal street gang. (See S 186.22, subd. (b).) In a bifurcated hearing, Defendant admitted he had two prior prison terms. (See S 667.5, subd. (b).)
Defendant contends on appeal that the trial court abused its discretion numerous times: It denied his motion to bifurcate the gang enhancement; it denied his motion for mistrial following a prosecution witness's violation of an in limine order and after the jury returned a partial verdict; and it permitted the prosecution's gang expert to give his opinion allegedly without sufficient foundation. Defendant contends the court erred in instructing the jury as to the limited use it could make of certain evidence and also argues the evidence was insufficient to sustain the street terrorism charge and the street gang enhancement. Court affirm.

An attorney, appeals a judgment against him for malicious prosecution filed by Dr. Stephen R. Rakower. Attorney contends the trial court erred by denying his anti-SLAPP motion, overruling his demurrer, and failing to redact portions of attorney correspondence admitted into evidence. First, court discern no abuse of discretion in denial of Attorney's untimely motion to strike. (See Code Civ. Proc., S 425.16; further statutory references are to this code unless noted otherwise.) Second, Attorney's demurrer presented questions of fact, and therefore the trial court properly overruled it. Finally, court conclude the unredacted letters presented little or no prejudice because they contained relevant evidence and, in any event, the trial court prevented any possible prejudice with a limiting instruction. Court therefore affirm the judgment.

Appellant is a homeowner and shareholder of the Tustin Woods Homeowners Association (the HOA), a nonprofit corporation. Pursuant to Civil Code section 1363, subdivision (a), the HOA manages a common interest development consisting of five units. Respondents (the Henricks) were members of the HOA board of directors and owned two of the five units in the common interest development.
When Rivera suspected the Henricks were not paying their association fees, he demanded an audit of the HOA finances and requested the Henricks produce the HOA financial records for his inspection. The Henricks did not meet Rivera's demands, so he filed a lawsuit against the HOA and the Henricks asserting derivative causes of action for an accounting, negligence, and breach of fiduciary duty. What followed was a series of demurrers and amended complaints, culminating in a third amended complaint alleging individual causes of action against the Henricks alone for declaratory relief, negligence, and breach of fiduciary duty.
The trial court sustained the Henricks' demurrers to the third amended complaint without leave to amend. Court affirm as to the first cause of action (declaratory relief) because a claim based on Civil Code section 1365.2 can be made only against the HOA. Court affirm as to the second cause of action (negligence) and third cause of action (breach of fiduciary duty) because they alleged only derivative claims, and Rivera failed to comply with Corporations Code section 7710, subdivision (b)(2).

A jury convicted Defendant of first degree murder, finding he personally used a firearm to slay Armando Solorio Govea. (Pen. Code, SS 187; 12022.5, subd. (a).) Defendant contends the trial court erred by excluding a prosecution witness's admission that heavy methamphetamine use made her paranoid in the years after she recounted what she knew about the crime to a police officer. Defendant also argues the trial court erroneously admitted an incriminating detail this witness provided the police in her initial report, but which she could not independently recall when she testified. For the reasons discussed below, court conclude these alleged evidentiary failings, if error, were either invited by defendant or harmless. The Attorney General concedes defendant's parole revocation fine (see Pen. Code, S 1202.45) violates ex post facto principles and court therefore reverse that portion of his sentence, with directions to the trial court to correct the abstract of judgment. Court affirm the judgment in all other respects.

Samuel Herrera and his son, Arturo Herrera, appeal from the order denying their motion under Code of Civil Procedure section 473 to vacate the judgment against them and in favor of Arther Masaoka. They contend the trial court erroneously based its denial on its conclusion that they lacked a meritorious defense. Alternatively, they contend the default judgment is void for two independent reasons: (1) they had filed an answer and (2) Masaoka failed to serve a statement of damages. Court find the trial court made an erroneous legal assumption, resulting in an abuse of discretion. Accordingly, court reverse and remand.