CA Unpub Decisions

Defendant Daniel Nathan Williamson appeals from judgment entered following jury convictions for aggravated sexual assault (forcible oral copulation) of a minor under the age of 14 (count 3; Pen. Code, § 269, subd. (a)(4))[1]; lewd and lascivious conduct on a child under age 14 (counts 5-9 and 11-13; § 288, subd. (a)); continuous sexual abuse of a child (count 10; § 288.5); and battery (§ 242; count 18). The court also found true the allegation as to counts 3 and 5 through 13, that the crimes were committed against multiple victims (§ 667.61, subd. (e)(5)). The trial court sentenced defendant to 135 years to life in prison.
Defendant contends the trial court erred in denying his motion to suppress his post-arrest statement to the police, and there was insufficient evidence to support his conviction for count 3. Defendant also argues the trial court violated his constitutional rights by admitting evidence of his prior sexual offenses, and the multiple victim allegations should be reversed because the trial court directed the jury to reconsider its initial not true findings.
We conclude that, as to count 3, there was insufficient evidence of force and duress to support defendant’s conviction for violating section 269, subdivision (a)(4). Therefore, the conviction on count 3 must be reduced to a conviction for the lesser included offense of violating section 288a, subdivision (c)(1), and remanded for resentencing. In all other respects, we affirm the judgment, there being no other prejudicial or cumulative error requiring reversal.

N.A. appeals juvenile court dispositional and jurisdictional orders concerning his son, Mason A. He contends the court erred by ruling Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901) notice was not required because ICWA does not apply in this case. We affirm the orders.

C.L. appeals the judgment entered following the jurisdiction and disposition hearings in the juvenile dependency case of her minor son, Jason L., Jr. (Jason Jr.). She contends the evidence was insufficient to support the court's jurisdictional finding under Welfare and Institutions Code section 300, subdivision (e),[1] and the court's denial of reunification services to C.L. under section 361.5, subdivisions (b)(5) and (c). We affirm.

In April 2000, Charles McCloud entered a guilty plea to one count of evading a peace officer with reckless driving (Veh. Code, § 2800.2, subd. (a)) and one count of being a felon in possession of a firearm (Pen. Code,[1] § 12021, subd. (a)(1)). He also admitted three strike prior convictions (§ 667, subds. (b)-(i)). The court sentenced McCloud to an indeterminate term of 25 years to life in prison.
In November 2012 the voters enacted Proposition 36 to modify California's Three Strikes Law. Pursuant to section 1170.126 persons who are serving an indeterminate sentence for a third strike offense, which was not a serious or violent felony, may petition the trial court to recall the sentence.
On November 20, 2012, McCloud filed a petition to recall his sentence. The court appointed counsel for McCloud and ultimately held a hearing to determine if he was eligible for resentencing under Proposition 36 (the Act). At the conclusion of the hearing the court found that the record from the 2000 convictions demonstrated that McCloud was armed with a firearm at the time of his offenses within the meaning of section 1170.126 and was therefore ineligible for resentencing under the Act.
McCloud appeals contending the trial court erred in several respects in finding him ineligible for relief as we will outline below.
We are satisfied the undisputed record shows McCloud was personally armed with a firearm when he committed the 1999 offenses, that the trial court need not rely on elements of the charged offenses, and that retrospective evaluation of the requirements for resentencing under the Act does not mandate prior pleading and proof of the factors for ineligibility at the time of the original proceedings. Accordingly, we will affirm the trial court's determination that McCloud is not eligible for resentencing.
Given the limited nature of our factual inquiry on this appeal we will omit the traditional statement of facts and consider such facts as are relevant in the appropriate portion of the discussion which follows.

Daniel P. Klahn, Sr. appeals from a judgment of dismissal after the trial court sustained a demurrer to his complaint without leave to amend. Respondents Kimco Realty Corporation (Kimco), a management company for El Camino North Shopping Center in Oceanside, California and Louise Chappins (collectively respondents), the shopping center's property manager, demurrered on grounds Klahn lacked standing to sue because the real party in interest was a defunct limited liability corporation. Respondents further argued Klahn did not allege sufficient facts to state causes of action for intentional interference with contract, negligence based on a contractual breach, intentional infliction of emotional distress, and unfair business practices (Bus. & Prof. Code, § 17200 et seq.).
On appeal, Klahn does not address the merits of the trial court's judgment or cogently explain why his complaint suffices to state proper causes of action. Nor does Klahn comply with the California Rules of Court applicable to the substance and form of his briefs. We conclude Klahn has abandoned his appellate contentions, to the extent they are ascertainable, and he has not overcome the legal presumption in favor of the judgment's correctness. We therefore affirm.

Fariborz Yashar, a self-represented litigant, appeals from an order[1] dissolving a temporary restraining order (TRO) issued in November 2012. Because his briefing does not comply with basic appellate principles both procedurally and substantively, Yashar has forfeited his contentions. Nor has he demonstrated error or prejudice. Accordingly, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts appear from the clerk's transcript, which is the entirety of the appellate record. In November 2012, Yashar obtained a TRO against "John Doe" after filling out a Judicial Council form Notice of Court Hearing (Elder or Dependent Adult Abuse Prevention). The matter was set for hearing on November 26, 2012.
The minute order reveals that on the day of the hearing, which was unreported, Yashar appeared along with William Barnes, who the parties confirmed was sued as John Doe. The court took testimony from Yashar and Barnes. It thereafter denied Yashar's requested restraining order in its entirety without prejudice, and ordered the TRO dissolved. Yashar filed this appeal.

In an amended complaint filed in July 2009, Tyler Adams and three others were charged with numerous counts of theft and financial fraud. During the next two and one-half years, Adams obtained multiple delays of his trial because he filed a repeated series of Marsden[1]and Faretta[2] motions that created a revolving door of appointed counsel, retained counsel, and self-representation. In addition, three other delays occurred when Adams's behavior compelled the court to suspend proceedings to allow psychological exams of him under Penal Code[3] section 1368.
In the final round of representational shuffling, Adams's retained counsel asked to be relieved because Adams had defaulted on his agreement to hire essential financial experts. The court relieved retained counsel and reappointed the alternate public defender, who subsequently moved for a four-month continuance. When Adams objected and declined to waive time for trial, the court found good cause to grant the continuance over Adams's objection. However, Adams then asked to be allowed to represent himself to preserve the existing trial date and, after conducting a Faretta hearing, the court granted his request to represent himself. Several weeks later, Adams pleaded guilty to all of the charged counts and associated allegations. The court sentenced him to 14 years in prison.
On appeal, Adams claims he was coerced into waiving his right to be represented by counsel by the court's erroneous rulings, and therefore his waiver of counsel was involuntary. He claims the court erroneously refused to compel his retained counsel to continue representing him, and then erroneously refused to compel the newly reappointed alternate public defender to proceed to trial less than eight weeks after being appointed, which forced Adams into choosing between waiving his speedy trial rights (to preserve his right to counsel) or waiving his right to counsel (to preserve his speedy trial rights). We find no error, and affirm the judgment.

Dana K. Ferrell appeals from the trial court's judgment against him in a lawsuit against the County of San Diego (the County) brought pursuant to Revenue and Taxation Code section 5096 et seq. for a refund and adjustment of property tax assessed on an approximate eight-acre lot that Ferrell owns in Lakeside.[1] Ferrell contends that the County Assessor (the Assessor) improperly valued the property by relying on comparable sales of properties that were zoned differently than the subject property. According to Ferrell, the County's Assessment Appeals Board (the Board) therefore committed legal error by accepting the Assessor's improper valuation. We conclude that the Assessor and the Board improperly relied on sales of properties with dissimilar zoning to the subject property. We accordingly reverse the judgment and direct the trial court to remand this matter to the Board for further proceedings.

Tamir Bilal Holmes appeals a judgment following his jury conviction on three counts of committing a lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)).[1] On appeal, Holmes contends: (1) the trial court prejudicially erred by instructing with CALCRIM No. 318 that evidence of a witness's statements before trial could be used as evidence of the truth of the information in those statements; and (2) the abstract of judgment must be corrected to show his sentence is to run concurrently with his West Virginia prison term.[2] Because we conclude the trial court's instructional error was not prejudicial, we affirm the judgment.

Fernando Poveda appeals the trial court's denial of his petition for writ of mandate filed under Code of Civil Procedure section 1085. He contends that during the 39 months after his former employer, respondent Southwestern Community College District (Southwestern), laid him off for lack of funds, he applied for several positions at Southwestern, but Southwestern filled those positions without granting him the reemployment preference to which he was entitled under Education Code[1] section 88117. Southwestern counters that it filled all those positions internally with current Southwestern employees. It interprets section 88117 as requiring it to grant Poveda reemployment preference over only external applicants, that is, those not currently employed at Southwestern.
The issue presented is whether the term "new applicants" used in section 88117 applies only to external applicants or to both internal and external applicants. We agree with Poveda and conclude that the latter interpretation comports with the statute's plain terms and the legislative scheme. Accordingly, we reverse the judgment and remand for the court to grant Poveda's writ petition and determine the appropriate relief under Code of Civil Procedure section 1095.

In this consolidated appeal, Imperial County Farm Bureau (Farm Bureau), Michael Morgan, John Elmore, and Walter Holtz (Morgan, Elmore, and Holtz collectively the Individuals) contend the trial court erred in determining that the Imperial Irrigation District (District) complied with Proposition 218 (Cal. Const., art. XIII D) in its passage of new water rates. Also, the District appeals a postjudgment order awarding the Individuals attorney fees under California's private attorney general statute, Code of Civil Procedure section 1021.5.

On May 31, 2013, a deputy with the Butte County Sheriff’s Department encountered defendant by a residence associated with the use and sale of controlled substances. The deputy knew defendant was on parole and conducted a parole search. During the search, defendant tried to flee while making an overhand throwing motion with his left hand. The deputy noticed defendant had discarded a large plastic package. After defendant was subdued, the deputy retrieved the package, which contained 1.9 grams net weight of methamphetamine.
Defendant was charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)),[1] along with a strike and a prior prison term (§§ 1170.12, 667.5, subd. (b)). He pleaded no contest to both charges and admitted the prior prison term, with the strike allegation being dismissed with a People v. Harvey (1979) 25 Cal.3d 754 waiver. The trial court sentenced defendant to four years in state prison, imposed various fines and fees, and awarded 97 days of presentence credit (49 actual and 48 conduct).

In Stockton on April 22, 2013, defendant Steve Alan Borges drove and was in possession of a black four-door 1997 Honda Civic that belonged to Chelsea Brown. Defendant knew the car was stolen.[1] In July 1986, defendant had been convicted of rape by force. (Former Pen. Code, § 261, subd. (a)(2).)
Defendant pleaded no contest to unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) and admitted a prior serious felony conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). In exchange, a related count and a prior serious felony allegation were dismissed.
Defendant was sentenced to state prison for four years (twice the middle term),[2] awarded 19 days of custody credit and 19 days of conduct credit (Pen. Code, § 4019), ordered to make restitution to Chelsea Brown in the sum of $1,000 (id., § 1202.4, subd. (f)), and ordered to pay a $280 restitution fine (id., § 1202.4, subd. (b)) plus a $28 administrative fee, a $280 restitution fine suspended unless parole is revoked (id., § 1202.45), a $40 court operations fee (id., § 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373). Defendant obtained a certificate of probable cause for appeal. (Pen. Code, § 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

R.C., father of the minors, appeals from the juvenile court’s dispositional judgment. (Welf. & Inst. Code, § 395.)[1] He contends the juvenile court erred by constraining the minors from sending letters to him without first making a finding of detriment. We agree and remand for the juvenile court to make further findings and orders.