CA Unpub Decisions

Defendant and appellant Steven B. Hall appeals the finding that he should be subject to a civil commitment as a mentally disordered offender (MDO). The current proceeding is the 10th time that defendant has been subject to MDO civil commitment proceedings. Defendant argues that, with respect to the current petition, the trial court erred in failing to advise defendant of his right to a jury trial at the MDO hearing. (See Pen. Code, § 2972, subd. (a).) He contends that the error is prejudicial per se, or, at the very least, that the Chapman[1] standard of error (harmless beyond a reasonable doubt) should apply because the error constitutes the violation of a federal constitutional right. We disagree. The right to jury trial is a matter of state law; the appropriate standard of prejudice is the Watson[2] standard, i.e., whether it is reasonably probable that a more favorable result would have been reached in the absence of the error. We conclude that the error was harmless under the Watson standard, and we affirm the trial court’s MDO order.

Defendant Glenn Vasquez was 15 years old in July 2004 when he participated in a shooting that killed Sergio Sanchez. In May 2011, a jury convicted defendant of one count of second degree murder and acquitted him of three counts of attempted murder. The jury found true the allegations that defendant had personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing death during the commission of a murder offense but that the murder had not been committed for the benefit of a street gang. The court sentenced defendant to a term of 40 years to life.
On appeal defendant contends the trial court committed instructional error when it told the jurors they could not consider the lesser offense of voluntary manslaughter if they found the presence of implied malice. We hold there was no instructional error and affirm the judgment.

Defendant, Jerome Cornell Session, and Shamar Lavette Thornton were charged in the same information and tried separately for the March 2006 robbery of an Apple Valley convenience store and the murder of the store clerk, Edward Gould, during the commission of the robbery. Defendant was an accomplice to the murder. The evidence showed that Thornton shot and killed Gould during the robbery, but defendant was unarmed. Defendant told the police he did not know Thornton was armed until after the robbery began, he was surprised when Thornton shot and killed Gould, and he only intended to “sock” or punch Gould a few times so that he and Thornton could escape from the scene.

On June 26, 2010, a car containing defendant and his wife passed a California Highway Patrol officer traveling at 85 miles per hour in an area where the posted speed limit was 65 miles per hour. After passing the officer, defendant and his wife pulled over because she felt sick, and they both exited the car. The highway patrol officer pulled behind the car, approached defendant, and immediately determined that he was intoxicated. Defendant was found to have 0.20 percent blood alcohol content. The only issue at trial was whether defendant was driving the car at the time it was seen by the officer. The jury determined that he was and found him guilty of driving under the influence of alcohol with a blood alcohol content greater than 0.08 percent.

In this “cold case,” defendant Anthony Varela Corrales was charged in 2010 with a murder that occurred in 1989. The victim was shot and killed while trying to help a friend repossess a pickup; the pickup was parked outside defendant’s home and belonged to defendant’s sister’s boyfriend.
The key contested issue was identity. The police found unfired shotgun shells in defendant’s bedroom and car that matched a fired shotgun shell found at the scene. Two of defendant’s acquaintances testified that he had made statements admitting the shooting. Defendant testified, however, that a friend of his, who had died before trial, had admitted being the shooter.
A jury found defendant guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189), with an enhancement for the personal use of a firearm (Pen. Code, § 12022.5, subd. (a)). Defendant admitted one prior serious felony conviction. (Pen. Code, § 667, subd. (a).) He was sentenced to a total of 35 years to life in prison, plus the usual fines and fees.
Defendant contends that his trial counsel rendered ineffective assistance by:
1. Failing to object to evidence that defendant was in possession of three firearms other than the murder weapon.
2. Failing to object to certain sexual references in jailhouse phone calls between defendant and his ex-girlfriend.
3. Failing to object to the $10,000 restitution fine based on postcrime amendments allowing the court to consider defendant’s ability to pay.
We reject all three contentions. On our own motion, however, we have identified two sentencing errors, both arising out of the trial court’s mistaken failure to apply the law that was in effect in 1989. We will modify the judgment accordingly.

This appeal follows an earlier appeal and opinion in this action. (Wagner v. Bike (Dec. 17, 2009, E046447) [nonpub. opn.].)[1] On this appeal, appellants and cross-complainants, Lon and Sandra Bike (the Bikes) appeal a May 19, 2011, order denying their motion to set aside a judgment issued on June 18, 2008, and entered on September 22, 2008, in favor of respondent Mitchell Wagner and his wife, Mrs. Wagner (the Wagners) on the Bikes’ cross-complaint against the Wagners.
The Bikes claim the judgment is void and subject to being set aside at any time. As we explain, the judgment is not void; it was at most voidable, and the Bikes are precluded by principles of estoppel, disfavor of collateral attack, and res judicata from setting it aside by their April-May 2011 motion. We therefore affirm the order denying the Bikes’ motion to set aside the judgment.

Defendant, Leon Francis Blakeman IV, accosted a 13-year-old boy twice as he rode his bike, offering $20 if the boy would allow defendant to touch and suck his privates. A jury convicted defendant of two counts contacting a minor with intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a)), and a true finding was made as to two strike allegations (Pen. Code, § 667, subd. (e)(2)(A)) as well as one prior serious felony conviction (Pen. Code, § 667, subd. (a)) by the court. Defendant was sentenced to prison for an indeterminate term of 25 years to life, plus a consecutive determinate term of five years for the serious felony prior conviction, and he appeals.
On appeal, defendant argues that (1) there was insufficient evidence of his identity as the perpetrator to support the conviction; and (2) introduction of documentary evidence of his prior convictions for sexual offenses, as evidence of uncharged prior sexual acts under Evidence Code section 1108, violated his right to confrontation. We affirm.

Defendant Cesar Channe Campos sexually abused several young girls, most of whom were the daughters of his live-in girlfriends. Defendant was charged with[1] continuous sexual abuse against J.E. (Pen. Code, § 288.5, subd. (a);[2] count 1); forcible lewd and lascivious acts against J.C. (§ 288, subd. (b)(1); counts 2-4); forcible lewd and lascivious acts against D.C. (§ 288, subd. (b)(1); count 5); lewd and lascivious acts against C.C. (§ 288, subd. (a); count 6); forcible lewd and lascivious acts against J.C. and C.C. (§ 245, subd. (a)(2); counts 7 and 8); and aggravated sexual assault, consisting of oral copulation, against J.A. (§ 269, subd. (a)(4)). It was also alleged, as to counts 1 through 6 and 9, that there were multiple victims (§ 667.61, subd. (b)) and that defendant used a firearm as to counts 7 and 8 (§ 12022.5, subds. (a) and (d)). During the trial, the court granted defendant’s motion to dismiss counts 5, 7, and 8 under section 1118. The jury convicted defendant of the remaining charges and allegations. The trial court sentenced defendant to an aggregate sentence of 32 years, plus 105 years to life.

Prior to the sentencing hearing, Cobb made a motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), at which Cobb complained about the plea agreement and raised the possibility of withdrawing his guilty plea. The court conducted an in camera hearing on the motion. The motion to relieve counsel was denied. The defense did not file a motion to withdraw the guilty plea.
The court granted Cobb probation on various terms and conditions. The court imposed a custody sentence of 270 days, but authorized Cobb's release into a residential treatment program as soon as space became available.
Cobb filed a timely notice of appeal and the trial court granted a certificate of probable cause (§ 1237.5).
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) asking this court to independently review the record for arguable issues for reversal on appeal. Although counsel has not specifically pointed to a "possible," but "not arguable issue," counsel has set out the details of the proceedings such that we discern the possible, but not arguable, issue present in this record is whether the trial court properly denied Cobb's Marsden motion. We have carefully reviewed the entire record and we are satisfied no arguable issue for reversal on appeal exists in this record.
We offered Cobb the opportunity to file his own brief on appeal but he has not responded.

San Diego Assemblers, Inc. (Assemblers) appeals from a judgment of dismissal following the court's granting of summary judgment in favor of Work Comp for Less Insurance Services, Inc. (Broker). Assemblers contends the court erroneously determined Broker had no duty to procure a liability insurance policy for Assemblers covering Assemblers's prior completed work. Assemblers additionally contends its claim is not barred by the superior equities doctrine or the statute of limitations. It also contends that, if Broker owed a duty to Assemblers, the court erroneously sustained Broker's objections to the declaration of Assemblers's standard of care expert.
We conclude Assemblers's claim is barred by the superior equities doctrine. We further conclude Broker owed no duty to procure prior completed work coverage for Assemblers. We, therefore, affirm the judgment.

The trial court entered a judgment against defendant Dasha Riley after a bench trial in plaintiff Peter Bulletti's breach of contract action against her. Riley appeals, apparently contending Bulletti's claim was barred by the statute of limitations and the doctrine of res judicata, and the trial court did not have jurisdiction to decide the matter.

Jaqueline S. and Timothy C., the parents of S.C. and L.C., appeal the judgment terminating their parental rights under Welfare and Institutions Code section 366.26.[1] Timothy contends that the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)). Jaqueline does not claim independent error, but contends that if Timothy's appeal is successful, the termination of her parental rights must be reversed as well. We reject Timothy's contention and affirm the judgment.

Ignacio Villaseñor participated in a speed contest on a public highway, struck and killed a pedestrian, and sped away. A jury found him guilty of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)), engaging in a speed contest (Veh. Code, § 23109, subd. (a)), hit and run violations (Veh. Code, §§ 20001, subd. (a), 20002, subd. (a)), and driving without a license (Veh. Code, § 12500, subd. (a)). The jury also found true allegations that the hit and run violations resulted in death and that Villaseñor fled the scene after committing vehicular manslaughter. (Veh. Code, § 20001, subds. (b)(2), (c).) The trial court sentenced Villaseñor to prison for an aggregate term of nine years.
Villaseñor seeks reversal of the conviction of vehicular manslaughter on the ground the prosecutor committed prejudicial misconduct during closing argument by misstating the law of causation and disparaging his defense. We affirm the judgment.

Petitioner and appellant James Keenan (Keenan), who served until 2004 as the administrator of the Estate of Paul Rule, deceased ("Rule's Estate"), filed his amended final account and petition for settlement of the estate and allowance of fees, under Probate Code[1] section 1060 et seq. (the amended account). Objections were filed by the current administrator, respondent and objector Betty Rule (Objector or Betty Rule, mother of Paul Rule). The probate court conducted a bench trial in 2008 on the disputed issues identified by the parties in their joint trial statement. The probate court's September 16, 2010 order surcharged Keenan over $1.9 million for his breaches of care and fiduciary duty that took place while he was acting as independent administrator of the Rule Estate. The court approved, only in part, his amended account, while deferring final settlement of the estate until further proceedings were conducted on the requests to allow fees (not involved in this appeal). Keenan's motion for new trial was denied.
Keenan appeals the orders imposing the surcharges and partially approving the amended account. (§ 1300, subd. (g) [surcharge order appealable]; Code Civ. Proc., § 904.1, subd. (a)(2) [denial of new trial, appealable order].) Keenan contends the probate court utilized an incorrect burden of proof standard, and further, that insufficient evidence supported the imposition of the surcharges as remedies for his breaches of fiduciary duty and the applicable standard of care in his administration of Rule's Estate. A large portion of his Rule Estate administration was carried out while Keenan was participating in his personal bankruptcy reorganization proceedings, beginning in 1996, in which Rule's Estate was an alleged creditor and debtor.[2]