CA Unpub Decisions

The Law Offices of Ian Herzog, Evan D. Marshall, Ian Herzog, and Thomas Yuhas for Plaintiffs and Respondents. Tim Curtin (Curtin) was up in the basket of an aerial lift, or cherry picker, manufactured by defendant Mobile Tool International, Inc. (Mobile Tool) when the lift went under a guy wire, and Curtin was decapitated. After a jury trial, Curtins heirs were awarded $2.2 million against Mobile Tool, based on products liability. Mobile Tool appeals, arguing:

In December 2006, defendant Audrey Leigh Arriola gave birth to a son, I.A., at Riverside Community Regional Medical Center (RCRMC). They both tested positive for methamphetamine. As a result, Riverside County Child Protective Services (CPS) was called and took legal custody of I.A. on December 24. I.A. was not ready to be discharged from the hospital, so he remained in the hospitals care and was scheduled to be released to CPS on December 25. On December 24, defendant, who was still at the hospital and was allowed to feed I.A, took off I.A.s hospital wristband, which had a security chip attached, and fled the hospital with him. I.A. was found at a remote property in Lake Elsinore with defendants friend the following day; defendant was apprehended in the same area several days later.

At a party, a fistfight broke out. At one point, two men were beating up one smaller man; four or five bystanders were trying to separate them. When the hostess screamed, [S]omebody do something, defendant took out a gun and shot the two attackers. One died; the other was seriously injured. As a result, defendant was found guilty of second degree murder and attempted murder and sentenced to 40 years to life in prison. Defendant now contends that this was cruel and unusual punishment, in part because he was only 17 years old when he committed the crimes. We disagree. We also reject defendants contention that he was not awarded the correct amount of presentencing custody credits. Court will direct the trial court to correct what the People concede is a clerical error affecting the sentence. Otherwise, court will affirm.

A jury found defendant Mayorico Lora Lora guilty of possession of a controlled substance, to wit, cocaine, for sale (Health & Saf. Code, 11351) (count 1) and transportation of a controlled substance, to wit, cocaine (Health & Saf. Code, 11352, subd. (a)) (count 2). The jury also found true that as to both counts the amount of cocaine exceeded 40 kilograms within the meaning of Health and Safety Code, section 11370.4, subdivision (a)(5). As a result, defendant was sentenced to a total term of 24 years in state prison: the midterm of four years on count 2, plus 20 years for the weight enhancement; sentence on count 1 was stayed pursuant to Penal Code section 654.

Civil Code section 895 et seq. establishes procedures and requirements with respect to construction defect cases involving homes and homeowners.[1] (For convenience, we will sometimes follow the lead of petitioner Standard Pacific Corporation and refer to the statutes as the Fix-it law.) Section 910 sets out prelitigation procedures to be followed by plaintiffs before suit can be filed, procedures that can be summarized as notice and opportunity to repair.[2] Section 912 in turn sets out certain requirements for builders with respect to documentation and information to be provided to homeowners. As a sanction, or incentive to comply, section 912 also provides, in subdivision (i), that a builder who fails to comply with any of these requirements . . . is not entitled to the protection of this chapter, and the homeowner is released from the requirements of this chapter and may proceed with the filing of an action . . . . The simple question presented by this petition is whether a plaintiff who does not follow the procedures set out in section 910 must first establish the builders noncompliance with section 912, or whether a plaintiff is free to file suit and need not step back to perform the notice and opportunity to repair position until the builder affirmatively establishes that it has complied with its own obligations.

Appellant, armed with a tire iron, abducted his estranged wife as she arrived at her workplace at about 5:00 a.m. on June 6, 2006. He drove off with her and committed a series of crimes against her. These included raping her and cutting her face with a box cutter. When she escaped at a gas station, appellant fled. He was captured two days later, although not before resisting arrest. He now appeals from the judgment of conviction of his crimes.

Appellant Agustine Vasquez, Jr., led officers on a high-speed chase at speeds of 90-to-100 miles per hour for nearly 27 miles through rural areas. He was charged and convicted of count 1, felony evasion of a peace officer (Veh. Code[1], 2800.2, subd. (a)); count 2, misdemeanor driving under the influence of alcohol or drugs ( 23152, subd. (a)); and count 3, misdemeanor driving with a blood-alcohol level of 0.08 percent or higher ( 23152, subd. (b)); with the special allegation as to counts 2 and 3 that Vasquezs blood-alcohol level was over 0.15 percent ( 23578). He was sentenced to two years in prison. On appeal, Vasquezs counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and Vasquez has filed a supplemental brief raising several issues. Court will affirm.

Appellant Jimmy Douglas Wagoner challenges his convictions for possession of heroin in jail and possession of heroin. He contends (1) the trial court erred in denying his request to disclose the identity of a confidential informant; (2) the evidence was insufficient to prove that he constructively possessed the heroin found in his cell; (3) the possession for heroin conviction must be reversed as it is a lesser included offense of the other conviction; and (4) the security fee imposed should be reduced. Court will reverse the possession of heroin conviction, reduce the security fee, and remand with directions to conduct an in camera hearing. In all other respects, we will affirm the judgment.

Appellant Rolland Marion Christian pleaded no contest to two counts of possession of narcotics for sale pursuant to a negotiated disposition and he was placed on probation. He violated probation when he was found in possession of stolen property and the court sentenced appellant to nine years eight months in prison pursuant to the terms of the negotiated disposition. On appeal, appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Court will affirm.

Appellant Leon Graham pleaded no contest to possession of cocaine base and was placed on probation pursuant to a negotiated disposition. He violated probation based upon his misdemeanor conviction for resisting arrest and the court imposed a six-year prison term consistent with the terms of the negotiated disposition. On appeal, appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Court will affirm.

On January 6, 2009, appellant, Miguel Haro Lara, Jr., was charged in a criminal complaint with felony possession of methamphetamine (Health & Saf. Code, 11377, subd. (a), count one) and misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, 11364, count two). The complaint further alleged that appellant had a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)) and three prior prison term enhancements (Pen. Code, 667.5, subd. (b)).[1] A document was filed indicating appellant was ineligible for Proposition 36 or a drug diversion program.

On January 21, 2009, the parties entered into a plea agreement. Appellant would plead no contest to count one, admit the prior serious felony conviction, and there would be a lid of 32 months on his prison sentence. Appellant executed a felony advisement of rights, waiver, and plea form (plea waiver form). In the plea waiver form, appellant acknowledged the terms of the plea agreement, the consequences of his plea, and constitutional rights pursuant to Boykin/Tahl.[2] Appellant waived his constitutional rights in the form.

Defendant Shantel Olivia Lerma was committed to state prison to serve a term of 19 years after she entered guilty pleas to narcotics, conspiracy, and street terrorism counts, and admitted numerous enhancement and prior conviction allegations in three separate cases. Her sole contention on appeal is that the trial court erroneously denied her an additional 99 days of presentence custody credit. The Attorney General maintains that (1) defendant waived her right to those credits when she entered her pleas in the two earlier cases, (2) defendant forfeited her right to raise this issue on appeal by failing to raise it at the sentencing hearing, and (3) defendant lacks the right to raise this issue on appeal because she waived her appellate rights as part of the plea agreement that resolved the final case and the sentences for all three cases. We conclude that defendants waiver of her appellate rights precludes her from prosecuting this appeal, and Court dismiss the appeal.

Defendant Raymond Greg Molina challenges the denial of his suppression motion. After his suppression motion was denied, he pleaded guilty to possession for sale of a controlled substance (Health & Saf. Code, 11378) and being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)), and admitted that he had suffered a prior possession for sale of a controlled substance conviction (Health & Saf. Code, 11370.2, subd. (c); Pen. Code, 1203.07, subd. (a)(11)). Molina was sentenced to an agreed term of 16 months in state prison. Molina claims that the police officers observations of him that led to his detention for being under the influence arose from a detention rather than a consensual encounter. Court conclude otherwise and affirm the judgment.

Mark D. Sanders stands sentenced to a total unstayed term of 50 years to life after a jury found him guilty and sustained enhancing allegations for these counts all involving victim Curtis Allen: first degree murder, with personal use and discharge of a handgun causing great bodily injury and death (count 1; Pen. Code, 187, subd. (a), 12022.5, subd. (a)(1), 12022.53, subds. (b), (c) & (d)), first degree attempted robbery and first degree burglary (counts 2 & 3; Pen. Code, 664/211, 459), each with the same handgun enhancements, and conspiracy to commit robbery and/or burglary (count 4; Pen. Code, 182, subd. (a)(1)). Sanders appeals, claiming error and ineffective assistance of counsel in the admission of evidence that he was a pimp, and error in the denial of a motion for new trial based on claimed jury misconduct for considering his failure to testify. Court reject the claims and affirm the judgment.