CA Unpub Decisions

A jury convicted defendant of two counts of aggravated sexual assault of a child (counts 1 and 2; Pen. Code, SS 269, subd. (a)(4) and (5)) and four counts of lewd and lascivious acts upon a child by force or fear (counts 3 to 6; S 288, subd. (b)(1)). The jury also found true an allegation that defendant committed lewd and lascivious acts in the present case against more than one victim. (S 667.61, subd. (e)(5).) The court sentenced defendant to 15 years to life for each of the six counts, and stayed the punishment on counts 5 and 6 pursuant to section 654. The punishment for the convictions on counts 2, 3, and 4 are to run consecutive to the conviction on count 1, thus providing for a total indeterminate term of 60 years to life.
Defendant contends: (1) the court erred in failing to instruct the jury on the element of force with respect to one of the counts of aggravated sexual assault; (2) the court prejudicially erred in admitting defendant's offer to an investigating officer to plead guilty; (3) the court prejudicially erred in failing to instruct sua sponte on the necessity of jury unanimity; and (4) the court abused its discretion when it allowed defendant's former wife to testify that defendant raped her and limited cross-examination of that witness. Court reject these contentions and affirm.

Appellant appeals from a judgment in favor of respondent awarding her title to a parcel of real property located at 16950 Lurelane Street in Fontana, California (the Property). Appellant claims that the judgment was erroneous because the trial court made inappropriate factual findings, not based on substantial evidence. Court affirm.

Following a court trial, defendant was convicted of robbery (Pen. Code, S 211; count 1) and petty theft with a prior conviction (S 666; count 2). Both convictions were based on defendant's theft of a $3.99 tube of Fixodent from a Target store. Defendant admitted he had three prior serious felony convictions (S 667, subd. (a)) and three prior strike convictions, based on three burglary convictions in 1977, 1978, and 1983 (SS 667, subds. (b) (e), 1170.12). The trial court struck the 1977 and 1978 prior strike convictions pursuant to defendant's Romero motion, and sentenced defendant to 19 years in prison.
Defendant appeals, contending that: (1) insufficient evidence supports his robbery conviction because there was no evidence he used force or fear in attempting to escape from the Target store with the stolen merchandise; (2) his conviction in count 2 for petty theft with a prior conviction must be reversed because it is a lesser included offense of robbery; (3) his Faretta motion was erroneously denied; and (4) his 19 year sentence constitutes cruel and unusual punishment under the state and federal Constitutions.
The People concede, and court agree, with defendant's second contention that his conviction for petty theft with a prior conviction must be reversed because it is a lesser included offense of robbery. Court find defendant's other contentions without merit. Court therefore modify the judgment to reverse defendant's conviction in count 2, and affirm the judgment in all other respects.

A modification decision.

Plaintiff filed an action for wrongful foreclosure of his Ontario townhouse against several defendants, including the homeowner's association, property manager, the property manager's attorney, and the bona fide purchaser at the foreclosure sale. Defendants moved for summary judgment and the court granted their motions and entered judgment in their favor. On appeal, plaintiff challenges the court's rulings and raises a number of contentions, alleging both procedural defects and substantive errors. As to the substantive errors, plaintiff argues there were triable issues of material fact on his causes of action for damages and his request for an accounting. Plaintiff also claims the court erred in awarding attorney's fees. For the reasons set forth below, court reject plaintiff's claims and affirm the judgment.

Appellant, mother, appeals from a February 8, 2006, dispositional order regarding her son, born in June 2001. Mother first contends that insufficient evidence supports several of the court's factual findings which the court relied on in assuming jurisdiction over minor, and that these factual findings must therefore be vacated. Court reject this contention, because substantial evidence supports the court's assumption of jurisdiction over minor under Welfare and Institutions Code section 300, subdivision (b), and the court's other factual findings are moot for purposes of jurisdiction.
Mother further contends the court failed to make the required "no reasonable efforts" finding in denying her services for minor under section 361.5, subdivision (b)(10) and (11). Court also reject this contention, on the grounds the court implicitly made the required "no reasonable efforts" finding and substantial evidence supports the finding. Accordingly, court affirm the dispositional order regarding minor.

A complaint filed by the District Attorney of San Bernardino County on January 6, 2006, charged in two felony counts that, on November 20, 2005, defendant violated Vehicle Code section 10851, subdivision (a), unlawful driving or taking a vehicle, and Penal Code section 496d, subdivision (a), receiving stolen property. On May 4, 2006, pursuant to Penal Code section 859a, defendant changed her plea to guilty as to count 2, in exchange for an agreement that count 1 would be dismissed and that she would receive three years formal probation and would serve no more than 180 days in county jail. (Pen. Code, S 1385.)
Thereafter, defendant was sentenced on June 12, 2006, and was placed on three years supervised probation, on the condition she serve 180 days in San Bernardino County jail with credit for time served.
The victim restitution hearing was held on July 14, 2006, and the court ordered probation be modified by the addition of a victim restitution fine in the amount of $400 plus a ten percent administrative fee, to be paid at the rate of $20 per month. Defendant agreed to the $400 victim restitution fine and probation as modified. Notice of appeal was filed June 13, 2006.
People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] Court have concluded independent review of the record and find no arguable issues.

An original juvenile wardship petition was filed on April 5, 2006, which alleged that the minor came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 602, subdivision (a) because he violated Penal Code sections 484 to 488, petty theft. Thereafter, a jurisdictional hearing was held on May 18, 2006 and, after taking evidence, the juvenile court sustained the petition and found the violation to be true and declared the violation to be a misdemeanor.
At the disposition hearing, appellant was declared a ward of the court, granted probation and placed into the custody of his mother at her home.
Court have concluded independent review of the record and find no arguable issues.

Defendant pled guilty to committing a forcible lewd and lascivious act on a minor. (Pen. Code, S 288, subd. (b)(1).) Following the denial of his motion to withdraw his plea, he was sentenced to the agreed to term of 8 years in prison. As part of his plea bargain, he waived his right to appeal. There is no certificate of probable cause in the record before this court. The judgment is affirmed.

The impact of Proposition 64 a ballot initiative entitled "Limits on Private Enforcement of Unfair Business Competition Laws" (Gen. Elec. (Nov. 2, 2004)) is the focal point of these appeals from a judgment (No. F048438) and a companion appeal (No. F049006) from an attorney fees order in a multi count representative action. The action arose from the purchase and sale of used cars with an extended service agreement (ESA) as a stated requirement for bank financing. Appellants summarize the action in case No. F048438 in the following manner: "This is an appeal from a Judgment granting restitution to the non party general public after a Jury unanimously concluded that the named Plaintiffs were not entitled to any relief (damages including restitution), and the Trial Court also concluded that the named Plaintiffs were not entitled to any equitable relief (restitution or injunction). "After the Jury Trial but before Judgment was entered, California voters passed Proposition 64 which limited the right of private persons to prosecute Unfair Competition Law ('UCL') actions. Before passage, any uninjured person could prosecute such an action 'on behalf of the general public'. After passage, uninjured private persons no longer had standing to prosecute an UCL action, but were required to have suffered actual injury and lost money or property as a result of the unfair competition, and also required to satisfy class certification procedures. The Judgment, however, concluded that Proposition 64 did not bar this action. "This Appeal presents two central issues: (1) Does Proposition 64 apply to this case; and, (2) Is the award of restitution to the general public after denying any equitable relief to the named Plaintiffs logically and legally inconsistent with binding Jury Verdict and Trial Court findings and conclusions"
The "JUDGMENT" (after bifurcated jury and court trials) filed May 3, 2005, and the "ORDER ON PLAINTIFFS' MOTION FOR ATTORNEY'S FEES AND MOTION TO TAX COSTS OF DEFENDANTS" filed September 12, 2005, are each reversed. The matters are however remanded to the trial court for such proceedings as may be appropriate pursuant to Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235.

A jury found defendant guilty of the first degree special circumstance murder, while lying in wait, of Henry James Sevey, Jr. (James), and of the second degree murder of Tedi Petrelli (Tedi) and found true the allegations that his personal and intentional discharge of a firearm caused both deaths. (Pen. Code, SS 187, subd. (a), 190.2, subd. (a)(15), 12022.53, subd. (d).) The court imposed, on the first degree special circumstance murder, a life without possibility of parole term consecutive to a 25 to life term on the firearm enhancement and, on the second degree murder, a consecutive 15 to life term consecutive to a 25 to life term on the firearm enhancement. On appeal, appellant raises two issues. First, he argues that the court violated his due process and fair trial rights by not instructing the jury that, even if he did not lose consciousness, voluntary intoxication could lower his criminal liability to involuntary manslaughter if he had neither malice nor intent to kill. Second, he argues that his attorney rendered ineffective assistance of counsel by not objecting to the defense psychologist's rebuttal testimony for the prosecution on the ground of attorney client privilege. Court affirm the judgment.

Defendant's live in girlfriend lost consciousness after he slapped and punched her face, threw her against the wall and pushed her to the floor, and choked and kicked her. At a bifurcated trial, he admitted three prison term prior allegations (S 667.5, subd. (b)), after which a jury found him guilty of assault by means of force likely to produce great bodily injury and found an infliction of great bodily injury allegation true (SS 245, subd. (a)(1), 12022.7, subd. (a)). The court imposed an aggregate 10-year sentence (the 4-year upper term on the assault, a consecutive 3 year term on the great bodily injury enhancement, and 3 consecutive 1 year terms on the prison term prior enhancements). The judgment is affirmed.

On July 24, 2003, the Fresno County District Attorney filed a first amended information in superior court charging appellant as follows: count I rape of an incompetent person (Pen. Code, S 261, subd. (a)(1)); count II elder/dependent abuse (S 368, subd. (b)(1)); and count III maliciously removing, obstructing, or severing a telephone line (S 591).
On June 22, 2005, appellant was arraigned, waived his right to a jury trial, and a court trial commenced.
On June 30, 2005, the court found appellant guilty of all three counts.
On March 4, 2006, the court denied appellant probation and sentenced him to a total term of eight years in state prison. The court imposed the upper term of eight years on count I and concurrent terms of four years on count II and two years on count III. The court awarded appellant 1,303 days of custody credits, imposed a $1,600 restitution fine (Pen. Code, S 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (S 1202.45), and ordered appellant to pay $3,465 in restitution (S 1202.4, subd. (f)). The court also ordered appellant to pay $8,537 to the Office of the Public Defender for expert witness fees and ordered him to register as a sex offender (S 290).
On April 3, 2006, appellant filed a timely notice of appeal.

Defendant was sentenced to seven years in state prison on January 1, 2006, after the trial court found that he had violated his probation. On appeal, defendant contends that there was insufficient evidence to support the finding that he violated his probation, and that the court's order revoking probation and sentencing him to state prison was an abuse of discretion. Court find that the trial court properly relied on hearsay evidence to find that defendant had violated his probation, and that the court did not abuse its discretion in ordering execution of the previously suspended seven year sentence. Therefore, court affirm the judgment.