CA Unpub Decisions

Appellant Julia Anna Bertoli suffered severe injuries when she was hit by an automobile while walking in a crosswalk that was shaded by overhanging trees. Bertoli sued the City of Sebastopol (City) and the California Department of Transportation (Caltrans), claiming they were responsible for a dangerous condition on public property.
The trial court granted a nonsuit as to the City on the ground there was insufficient evidence the City owned or controlled the property in question. The jury then found by special verdict that, while Caltrans owned or controlled the property, it was not in a dangerous condition.

Defendant argues, inter alia, that his constitutional rights were violated when law enforcement failed to properly advise him of his right under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) to have an attorney present before and during questioning. In supplemental briefing, defendant raises new arguments that, in light of the electorate’s enactment of Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57), on November 8, 2016, and subsequent statutory amendments, his case must be remanded to allow the trial court to decide in the first instance whether, first, he is fit to be tried in adult criminal court although he was 17 years old when committing these crimes and, second, whether the court should exercise its discretion to strike the consecutive 25-years-to-life term he received for the firearm enhancement. For reasons we will discuss, we agree

On September 29, 2017, the juvenile court terminated the parental rights of Roberto G. (father) and G.C. (mother) to their two sons, Robert G. (11 years old) and M.G. (22 months old) at the conclusion of a hearing pursuant to Welfare and Institutions Code section 366.26. On appeal, father, with mother joining, contends the juvenile court erred in denying his request for a bonding study and in summarily denying his petition pursuant to section 388 to either reinstate reunification services or to grant him custody with a family maintenance plan. Both mother and father contend the juvenile court erred in failing to apply the beneficial parent-child relationship exception in determining whether to terminate parental rights. We find no error and affirm the orders of the juvenile court.

Appellant Daniel Joseph Garcia stands convicted pursuant to a plea of no contest to three counts of making criminal threats (Pen. Code, § 422, subd. (a)). Appellant timely appealed following the lift of stay on a previously imposed sentence. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asking this court to review the record to determine whether there are any arguable issues on appeal. Appellant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Appellant filed a supplemental letter brief, but did not raise any appealable issues. Finding no arguable error that would result in a disposition more favorable to appellant, we affirm the trial court’s findings and orders. We shall, however, order a corrected abstract of judgment to correct a clerical error.

This appeal follows sentencing in three separate criminal cases against defendant Jacques Bolibaugh. The first case arose from the Bakersfield police department’s placement of defendant’s apartment under surveillance for drug activity in March 2016. Defendant was arrested and charged with furnishing methamphetamine and maintaining a place for unlawfully furnishing or using a controlled substance. After defendant was released from custody on bail in April 2016, he failed to appear for his arraignment and a bench warrant was issued for his arrest. Defendant was subsequently charged with failure to appear, with a sentence enhancement allegation for committing a felony while out on bail. Finally, in connection with his attempt to cash a stolen check in May 2016, defendant was charged in a third case with forgery and identity theft, with the on-bail enhancement allegation attached to each count.

A jury acquitted appellant Paul Timberlake of first degree murder, but convicted him of the lesser included offense of second degree murder. It also found him guilty of being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 2); carrying a loaded firearm as an active street gang member (§ 25850, subd. (c)(3); count 3); and being an active member of a criminal street gang (§ 186.22, subd. (a); count 4). It found not true as to count 1, but true as to count 2, that the offense was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)); and found true, as to all counts, personal firearm use enhancements (§§ 12022.5, subd. (a); 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found Timberlake suffered two prior strike convictions (§ 667, subds. (c)-(j)), two prior serious felony convictions (§ 667, subd. (a)(1)), and served two prior prison terms (§ 667.5, subd. (b)).

Defendant Eddie Luna was convicted of first degree willful, deliberate, and premeditated murder and attempted willful, deliberate, and premeditated murder. In connection with both counts, the jury found true the allegations he was a principal who personally and intentionally discharged a firearm and proximately caused great bodily injury or death; he was a principal who personally and intentionally discharged a firearm; he was a principal who personally used a firearm; and he committed the underlying offense for the benefit of, at the direction of, or in association with a criminal street gang. Defendant was sentenced to 25 years to life on count 1, plus 25 years to life for discharging a firearm and proximately causing great bodily injury or death; and 15 years to life on count 2, plus 25 years to life for discharging a firearm and proximately causing great bodily injury or death.

Appellant D.M. (minor) admitted the allegation that he committed felony sexual battery of a person unlawfully restrained. (Pen. Code, § 243.4, subd. (a).) A juvenile court placed him in the custody of his parents on terms of probation, but did not adjudge him a ward of the court. The court also imposed a 10-year firearms prohibition. (§ 29805.) Minor now argues that the firearms prohibition was unlawfully imposed and should be stricken. The People concede, and we agree.

While seated in front of a convenience store, defendant and appellant Rubien Earl Brandon had a fixed-blade knife on his person and a syringe for injecting methamphetamine in his backpack. Following a jury trial, defendant was convicted of carrying a concealed dirk or dagger (Pen. Code, § 21310; count 1) and possessing an instrument for injecting controlled substances (Health & Saf. Code, § 11364; count 2). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to a total term of four years in state prison. On appeal, defendant contends that section 21310, the statute that criminalizes carrying a concealed dirk or dagger, and section 16470, the statute that defines “dirk” and “dagger,” together are unconstitutionally overbroad. We reject this contention and affirm the judgment.

A jury found defendant and appellant Martin Piceno guilty of unlawfully causing a fire to a structure or forest (Pen. Code, § 452, subd. (c)). The trial court imposed and suspended an aggravated three-year sentence, and placed defendant on formal probation for a period of three years on various terms and conditions of probation. On appeal, defendant contends the case must be remanded for resentencing because a presentence report was not prepared before sentencing. For the reasons explained below, we reject defendant’s contention and affirm the judgment.

Plaintiff and respondent, Ricky E. Luginbill, obtained a default judgment against defendant and appellant, Vincent P. Salva, and defendant, United States Semiconductor Corporation (Semiconductor Corp.), for about $84,000. Salva advances several arguments for vacating the default judgment altogether, which we reject. But we agree with him that the court acted in excess of jurisdiction by awarding more than the damages demanded in the complaint (Code Civ. Proc., § 580, subd. (a)), as well as attorney fees, without any contractual or statutory basis. Luginbill does not truly dispute that he obtained an excessive default judgment in these respects and “stipulate[s]” to a reduced judgment. We therefore direct the trial court to enter a reduced judgment and, so modified, we affirm.

A jury found defendant and appellant Bruce Allen Perryman guilty of attempted murder, assault with a firearm, and criminal threats. As to count 1, the jury also found that he personally used a firearm within the meaning of section 12022.53, subdivision (b). As to counts 2 and 3, the jury found that he personally used a firearm within the meaning of section 12022.5, subdivision (a). The court imposed a total prison term of 15 years, which was comprised of five years on count 1, plus 10 years on the firearm enhancement. The court imposed three years on count 2, plus four years on the firearm enhancement, but stayed both under section 654. As to count 3, the court imposed two years, plus four years on the firearm enhancement, to run concurrent to the term imposed on count 1.Defendant filed a timely notice of appeal.

A jury found Lawrence Romero guilty of possessing methamphetamine for sale, possessing drug paraphernalia, and resisting arrest. On appeal, Romero challenges his sales conviction on the ground the trial court improperly admitted three text messages from phones in his possession when the police arrested him. Finding no reversible error, we will affirm.

Appellant, Rahmat Sadat, and respondent, Samia Sadat, married in 2002 and separated in 2014. In January 2015, Samia filed a petition to dissolve the marriage. After a trial in 2016, the court entered a judgment of dissolution dividing the parties’ assets and debts. It also found Rahmat breached his fiduciary duties to Samia. Rahmat challenges a number of the court’s findings and rulings on appeal, but he has failed to provide a record of the evidence at trial. We must therefore affirm the judgment.