CA Unpub Decisions

Consolidated Disposal Service, LLC (Consolidated), appeals from the judgment entered against it on its cross-complaint for indemnity against Aspen Distribution I, Inc. (Aspen) the indemnity claim was based on an underlying product liability action by an Aspen employee who was injured while filling a refuse container that Consolidated had leased to Aspen. We affirm the judgment because there was no evidence that the accident was caused even in part by Aspen’s negligence.

This case comes before us a second time. On March 3, 2008, a jury in Santa Barbara convicted Russell Lee Gooch of stalking, dissuading a witness by force or threat and contempt of court. The convictions occurred at Gooch’s second trial; at the first trial the jury deadlocked on all counts, and a mistrial was declared. On May 9, 2008, the Santa Barbara trial court sentenced Gooch to an aggregate state prison term of six years, suspended execution of the sentence, and granted him five years of formal probation on various terms and conditions, including that he not have any contact with the victim or her family for 10 years, and complete a two-year residential alcohol and drug treatment program.[1] (People v. Gooch (April 19, 2011, B220982) [nonpub. opn.].) Because Gooch was ordered into the Delancey Street Foundation, a Los Angeles residential treatment program, the case was transferred to Los Angeles County for probationary supervision.

A jury found appellant Raul Silva guilty of first degree murder (Pen. Code, § 187, subd. (a)),[1] and found true three special circumstance allegations -- witness murder, lying-in-wait, and gang murder (§ 190.2, subds. (a)(10), (a)(15), & (a)(22)) -- as well as a gang enhancement allegation (§ 186.22, subd. (b)(1)(C)). The trial court sentenced appellant to state prison for life without the possibility of parole. He appeals from the judgment of conviction, contending that his conviction must be reversed because the evidence was insufficient to corroborate the testimony of an accomplice, Jose Covarrubias. We affirm the judgment.

Plaintiffs and appellants Bo Du and Yong Dong Feng (collectively Feng) and cross-complainants and appellants Zekrollah Mohammadi and Mojgan Mohammadi (collectively Mohammadi) appeal a judgment following a grant of summary judgment in favor of defendant, cross-defendant and respondent H. Gene Hawkins (Hawkins).
Hawkins provided professional geologic services in connection with bedrock and geologic exposures during rough grading preceding the construction of Mohammadi’s home. The house allegedly was damaged by earth movement and structural defects. The essential issue presented is whether the lawsuits against Hawkins by Mohammadi and Feng, the subsequent purchaser, are barred by the 10-year limitations period on an action alleging a latent defect in construction. (Code Civ. Proc., § 337.15.)[1]
The undisputed evidence established that the last act or service performed by Hawkins in connection with the subject real property was on May 21, 1999, more than 10 years before the inception of this action. Therefore, the judgment in favor of Hawkins is affirmed.

Jose Joel Moreno and Leon Dewayne Hardin appeal from the judgments entered after a jury convicted both of them of attempted carjacking and attempted robbery and Moreno of assault with a deadly weapon (a knife). We affirm.

Luis F. Martinez appeals from an order denying his nonstatutory motion to vacate his 16-month state prison sentence, which was imposed after he admitted he had violated the terms and conditions of his probation. Martinez contends the court erred in denying his motion to vacate because the trial court did not advise him of all his due process rights before accepting his admission and revoking probation and his counsel was ineffective in failing to warn him of the immigration consequences of his admission. He also contends the summary revocation of his probation on April 26, 2010 was improper and, as a result, the court lacked jurisdiction to formerly revoke his probation at the September 20, 2010 probation revocation hearing. Because the motion, properly considered a petition for writ of coram nobis, failed to state a prima facie case for relief, we dismiss the appeal.

Defendant Bobbie Smith appeals from a judgment entered after a jury convicted him of one count of false imprisonment by violence (Pen. Code, § 236),[1] one count of attempted forcible rape (§§ 664/261, subd. (a)(2)), and one count of indecent exposure with a prior conviction (§ 314, par. 1.).
Appellant contends that the convictions are not supported by substantial evidence and that the trial court erred in allowing evidence of prior convictions pursuant to Evidence Code sections 1108 and 1101, subdivision (b). We affirm the conviction for indecent exposure with prior conviction, and reverse the convictions for attempted forcible rape and false imprisonment by violence.

Jose Joel Moreno and Leon Dewayne Hardin appeal from the judgments entered after a jury convicted both of them of attempted carjacking and attempted robbery and Moreno of assault with a deadly weapon (a knife). We affirm.

In this case, longtime co-tenants in a rent-controlled apartment engaged in repeated domestic disputes that resulted in several court actions, visits by police, and, ultimately, imposition of a one-year restraining order. One of the tenants appeals from an ex parte order modifying the restraining order, contending his due process rights were violated by abuse of the ex parte procedure. We agree, and therefore reverse.

Irene M. appeals from the trial court’s order denying her motion to enforce a “visitation” clause in a contact after adoption agreement entered into pursuant to Family Code section 8616.5. We affirm the trial court’s order.

The City of Hope National Medical Center (COH) filed a complaint alleging that PacifiCare of California had breached the parties’ health services contract by failing to reimburse COH for medical treatment provided to a PacifiCare plan member. PacifiCare filed a motion for summary judgment arguing that it was not contractually obligated to pay for the medical treatment because: (1) COH had failed to obtain PacifiCare’s authorization prior to providing the treatment; and (2) PacifiCare had entered into capitation agreements with third party medical providers that absolved it of financial responsibility for the services rendered by COH. The trial court granted the motion for summary judgment and awarded PacifiCare attorneys’ fees and costs. COH appeals the judgment and the award of attorneys’ fees and costs. We affirm.

Defendant Micaelle Munoz timely appealed after the trial court ordered that the terms of her probation be modified. Her counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We find no arguable issues and affirm.

Appellant, appearing in pro per, appeals from a cost award in the amount of $1,270 entered by the Alameda County Superior Court after appellant had voluntarily dismissed a 12-count action he had filed against respondents, the California Parole Advocacy Program (hereafter CPAP) and its Northern California Director, Andrew Walker. The action alleged that those respondents had inadequately represented him in a parole revocation hearing which was determined adversely to him. We find this appeal to be without merit and, indeed, bordering on the frivolous. We thus affirm the cost award order of the superior court.

After a jury trial, appellant was convicted of numerous offenses stemming from his violent sexual attack on a woman, Jane Doe.[1] Specifically, appellant was found guilty of Count I, alleging forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)).[2] In connection with this conviction, the jury found true the aggravated kidnapping enhancement (§ 667.61, subds. (a), (d), (e)). Appellant was also found guilty of Count II, alleging kidnapping with the intent to commit forcible sexual penetration (§ 209, subd. (b)(1)), and Count III, alleging assault with the intent to commit forcible sexual penetration (§ 220, subd. (a)).
On appeal, appellant claims “the evidence was insufficient to convict of any form of kidnapping.” He also argues that the jury was prejudicially misled by the instructions given on the risk of harm to the victim, and the instructions given on the use of circumstantial evidence in proving the charged offenses. Finally, he claims the court erred when it denied all conduct credit for his presentence confinement.
We affirm the judgment. However, as respondent concedes, appellant’s challenge to the trial court’s decision not to award any conduct credits has merit. Consequently, we amend the abstract of judgment to show 115 additional days of presentence conduct credit.