CA Unpub Decisions

Defendant Arturo Pedro Gutierrez appeals from a judgment entered on his plea of no contest to kidnapping (Pen. Code,[1] § 207, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and indecent exposure (§ 314, subd. (1)). His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues on appeal. Having conducted the requested review, we conclude there are no errors or arguable issues for review and, thus, affirm the judgment.

Plaintiff and appellant Mark Celsi claims defendants and respondents H&R Block Tax Services LLC, and H&R Block Tax and Business Services, Inc. (collectively “H&R Block”) orally promised him franchise rights to the City of Arcata. This promise, Celsi asserts, fraudulently induced him to sign a written franchise agreement for the nearby cities of Eureka and McKinleyville in violation of the California Franchise Investment Law (CFIL). (Corp. Code, § 31000 et seq.)[1] Celsi further asserts H&R Block breached the written franchise agreement, as amended by the alleged oral promise for Arcata, when it denied Celsi the Arcata territory and awarded it to a third party. The trial court sustained a demurer to Celsi’s statutory claim. It also granted summary judgment to H&R Block on Celsi’s remaining contract-based claims, ruling the parol evidence rule precluded evidence of the alleged oral agreement. Celsi appeals from the judgment entered after these rulings; we affirm.

The juvenile court adjudged appellant D.D. a ward of the court after it found that he had committed robbery. On appeal, the minor claims that he received ineffective assistance of counsel below, because his attorney did not adequately challenge the victim’s identification of the minor, did not offer the testimony of an expert in eyewitness identification, and did not properly impeach the victim with his prior inconsistent statements. We affirm.

Darrell Dwayne Boston appeals from a judgment upon a jury verdict finding him guilty of robbery (Pen. Code,[1] § 211). The jury also found true the allegation that defendant used a deadly weapon in the commission of the offense (§ 12022, subd. (b)(1)). In a bifurcated proceeding, the court considered the issue of the charged prior convictions–whether defendant suffered multiple prior strikes and prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), 667, subd. (a)); and three prior prison terms (§ 667.5, subd. (b)). The court determined the issue of identity–that it was defendant who suffered the prior convictions, and as to the strike convictions, the court determined that they were brought and tried separately. The jury then considered whether the allegations that defendant suffered the prior convictions in three separate cases was true. The jury found the prior conviction allegations to be true. Defendant contends that the trial court abused its discretion in failing to strike the prior strike allegations in the interests of justice. He also argues that he was entitled to a jury trial on the issue of whether he was identified as the person who suffered the alleged prior convictions. We affirm.

Defendant and appellant Shirley Jean Robinson was convicted by a jury of six counts of forgery and four counts of identity theft after crafting a fraudulent power of attorney and notary seal to facilitate the refinancing and transfer of title to real property to her son. Defendant, who received a suspended sentence, 120 days of jail time served primarily on home electronic monitoring, and five years of probation, has timely appealed. In doing so, defendant contends several legal errors were made at trial relating to, among other things, her conviction on multiple counts of forgery with respect to a single forged document and her conviction on multiple counts of identity theft without substantial evidence to support a finding that the victim acted with reasonable diligence in discovering the crime beyond the three-year statute of limitations. For reasons set forth below, we reverse the judgment with respect to counts three through ten and otherwise affirm.

The issues we confront in these consolidated appeals arise from a real property dispute between two adjacent commercial property owners over the location of an easement affording parking rights to one of the owners. Plaintiff, respondent and appellant The Oncology Corporation (Oncology), is the owner of the dominant tenement, a commercial property (Oncology property or Property) located in downtown Hayward. Defendants Series 1 of MTI Properties, LLC (MTI) and Cheng, Chow & Chu, Inc. (Cheng) are the current and former owners, respectively, of the servient tenement, a commercial property known as the Hayward Professional Center (HPC property), which is adjacent to and abuts the Oncology property.
In 2007, Oncology filed a complaint against MTI and Cheng, seeking to quiet title to access and parking easements on the HPC parking lot as well as injunctive relief. MTI filed a cross-complaint against Cheng seeking, among other things, indemnity and contribution. These consolidated appeals follow entry of judgment after the claims raised in the complaint and cross-complaint were bifurcated and tried before the court in separate proceedings designated Phase I and Phase II.

In this appeal, we interpret the provisions of a commercial lease to determine whether the lessor or the lessee had the obligation to maintain and make repairs to the roof membrane and to the heating, ventilation, and air conditioning (HVAC) system after the expiration of a warranty period. The lessor was Kilroy Realty, L.P. (Kilroy), and the lessee was Eagle Ridge Manufacturing, doing business as Techco (Techco).[1] Techco used the leased building to design and manufacture superchargers and other high performance automobile components.
The trial court concluded Kilroy only had the obligation to pay for repairs to the roof membrane and to the HVAC system, but did not have the obligation to make the repairs. The trial court so instructed the jury, which returned a verdict against Techco on the complaint and awarded Kilroy over $2 million in damages for breach of lease on its cross‑complaint.
We have independently and exhaustively studied the relevant provisions of the lease, and have considered the admissible extrinsic evidence, and reach the same conclusion as the trial court did: While the lease required Kilroy to pay for repairs to the roof membrane and HVAC system, after the expiration of the warranty period, the lease did not require Kilroy to make those repairs. Kilroy, therefore, was not in breach of the lease to the extent Kilroy failed to make repairs to the roof membrane and the HVAC system, and Techco was in breach of the lease by unilaterally terminating it.
Appellants raise eight additional discrete issues on appeal. We resolve those eight issues in favor of Respondents and therefore affirm the judgment

This appeal by a would-be landlord against two purported subtenants turns on the lack of any intention on the part of the two purported subtenants to make the would-be landlord a third party beneficiary of two subleases which they entered into between themselves. While that conclusion might at first seem counterintuitive, it is supported both by the actual language of the master lease and the two subleases – both of which were made expressly contingent on the would-be landlord’s giving its express approval on any sublease, an express approval that was never given – and by the substantial evidence at trial affirmatively showing that the two subtenants did not want to establish any landlord-subtenant relationship when they entered into the two subleases. They had other purposes in mind. Accordingly, we affirm the trial court’s judgment denying the would-be landlord any recovery by way of unpaid lease payments against the two purported subtenants. The landlord’s remedy remains a claim against the original tenant that entered into the master lease with the landlord.

B.S.[1] (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested 18-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26[2] hearing as to her 23-month-old son, J.S. We will deny the petition.

Appellant, Felix P., was initially adjudged a ward of the juvenile court in 1990; he was readjudged a ward in four subsequent wardship proceedings; and, following his most recent adjudication in 1992, he was committed to the California Youth Authority (CYA).[1]
One of the offenses of which appellant stands adjudicated is annoying or molesting a child under the age of 18 (Pen. Code, § 647.6, subd. (a)(1)),[2] a misdemeanor.
Under the version of section 290, subdivision (d) in effect at the time of appellant’s commitment to CYA, a minor committed to CYA based on an adjudication of any of certain enumerated offenses, including a violation of section 647.6 occurring after January 1, 1988, was required to comply with sex offender registration requirements upon discharge from CYA. (Former § 290, subd. (d)(2).)[3] In January 2012, appellant filed a “notice and motion to vacate registration requirements under Penal Code § 290.008” (petition). (Unnecessary capitalization omitted.) Following a hearing, the court ruled it lacked jurisdiction to grant the relief requested. The instant appeal followed.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We affirm.

Mercedes S. (mother) petitioned the trial court to free Nicholas S. (the minor) from the parental custody and control of his father, Richard S. (father). The petition was based on father’s recent felony conviction for assaulting his nine-year-old stepson with a stun gun. After a contested hearing at which father testified his use of the stun gun was accidental, the court granted mother’s petition and terminated father’s parental rights. Father appeals and we affirm the order terminating parental rights based on the court’s finding that the facts underlying father’s felony conviction were of such a nature as to prove his unfitness to have future custody and control of the minor. (Fam. Code, § 7825.)[1]

On February 18, 2011,[1] appellant, Julie A. Condon, was charged in a criminal complaint with possession for sale of heroin (Health & Saf. Code, § 11351, count I),[2] possession for sale of methamphetamine (§ 11378, count II), possession for sale of hydrocodone, morphine, and codeine (§ 11351, count III), possession for sale of diazepam (§ 11375, subd. (b)(1), count IV), transportation of heroin (§ 11352, subd. (a), count V), and transportation of methamphetamine (§ 11379, subd. (a), count VI). There was a special allegation on count I that Condon possessed 14.25 grams or more of heroin within the meaning of Penal Code section 1203.07, subdivision (a)(1). The information also alleged three prior drug conviction enhancements pursuant to section 11370.2, subdivisions (a) and (c).
On May 5th, at the conclusion of a jury trial, Condon was found guilty of possession of heroin for sale (count I), transportation of heroin (count V), and transportation of methamphetamine (count VI). The jury found true the allegation in count I that Condon possessed 14.25 grams or more of heroin. Condon was found guilty of the lesser included offenses of possession of methamphetamine (count II), possession of hydrocodone, morphine, and codeine (count III), and possession of diazepam (count IV). In a bifurcated proceeding, Condon waived her constitutional rights and admitted the allegations that she had three prior convictions for drug offenses.
On June 29th the trial court sentenced Condon to the upper term of five years on count V, to a consecutive term of eight months on count III, and to a consecutive term of one year on count VI. The court stayed Condon’s sentence on counts I and II pursuant to Penal Code section 654.[3] The court enhanced Condon’s sentence by nine consecutive years, comprised of three 3-year enhancements imposed pursuant to section 11370.2. Condon’s total prison term is 15 years 8 months. The court imposed a restitution fine of $3,200. The court granted 147 days of actual custody credits and 147 days of conduct credits for total custody credits of 294 days. Condon’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

On February 18, 2011, appellant, Rolando Jaramillo, was charged in a third amended information with kidnapping for rape in concert (Pen. Code, § 209, subd. (b)(1), count 1),[1] kidnapping (§ 207, subd. (a), count 2), and rape in concert (§ 264.1, count 3). Count 3 was alleged to have been committed under aggravating circumstances, within the meaning of section 667.61, subdivisions (a), (b), (d), and (e) because the defendant tied or bound the victim, kidnapped the victim, and/or committed great bodily injury on the victim. Victor Cordova Alatorre and Daniel Espinoza Zenteno were charged as codefendants.[2]
The court conducted hearings on December 16, 2010, and February 18, 2011, based on motions brought by Jaramillo pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). During the December 2010 hearing, Jaramillo complained that he was not guilty of the allegations, and his counsel, James Oliver, was not helping him “get rid” of the charges against him. Jaramillo wanted a new attorney. After the trial court established that Jaramillo had nothing else to add, the court noted that Oliver had substantial experience with criminal jury trials.

In this court’s published opinion, People v. Harris (1990) 226 Cal.App.3d 492, we noted that appellant Kirk Tremaine Harris’s 1980 conviction was invalid and could not be used to enhance his sentence for his 1988 conviction for robbery. (Id. at pp. 494, 497.) In this current appeal, Harris contends his conviction on two counts of robbery must be reversed because the invalid 1980 conviction was used to impeach his testimony and to enhance his sentence. We agree the 1980 conviction was improperly used, but conclude: (1) the use of the invalid conviction for impeachment purposes was harmless error and (2) the sentencing error can be corrected by a remand for resentencing.