CA Unpub Decisions

This is the third appeal in the course of protracted litigation related to a short-lived agreement to purchase and develop a parcel of land in San Francisco. Appellants and plaintiffs, A.F.Evans Company, Inc., (Evans) and Charmaine Curtis (Curtis) negotiated and consummated a partnership agreement with defendant Doheny-Vidovich Partners (DVP) through its general partner defendant John Vidovich (Vidovich) in June of 1999. This litigation commenced nine months later. The procedural history of this matter is convoluted, to say the least, and involves the unusual circumstance of sequential trials with incongruent factual findings. Although plaintiffs outcome was improved in the second trial, they nonetheless appeal, seeking a reversal of the judgment and a new trial. Plaintiffs, however, have not demonstrated they suffered any prejudicial error in the over nine year course of the litigation. Court therefore affirm the judgment.

Raul Carreto-Vasquez appeals from a judgment entered after a jury convicted him on one count of first degree burglary (Pen. Code[1], 459, 460, subd. (a)), one count of committing a lewd or lascivious act on a child under the age of 14 ( 288, subd. (a)), and one count of oral copulation with a child under the age of 10 ( 288.7, subd. (b)). He contends (1) the trial court erred when it admitted evidence that he had engaged in similar sexual misconduct against a different child victim, (2) the court erred when it denied his motion for a mistrial, (3) the court instructed the jury incorrectly, (4) cumulative error mandates a reversal of his conviction, and (5) the sentence imposed was cruel and unusual punishment. Court will reject these arguments and affirm.

Defendant was convicted following a jury trial of two counts of first degree robbery (Pen. Code, 212.5, subd. (a)),[1] three counts of second degree robbery ( 212.5, subd. (c)), and assault with a firearm ( 245, subd. (a)(2)), with associated enhancements for personal use of a firearm ( 12022.53, subd. (b)), personal discharge of a firearm ( 12022.53, subds. (c), (e)(1)), and personal use of a revolver ( 12022.5, subd. (a)(1)), in the commission of the offenses. In this appeal he argues that the trial court erred by denying his motion to represent himself at trial, and claims that the jury committed misconduct by conducting an experiment with physical evidence offered at trial. Court conclude that the trial court, on this record, improperly denied defendants timely Faretta motion, and therefore must reverse the judgment.

Michael Anthony Jones appeals his conviction following a court trial of two counts of identity theft (Pen. Code 530.5) and two counts of second degree burglary ( 459, 460, subd. (b)). His sole contention on appeal is that the trial court should have stayed the sentences on the two burglary counts pursuant to section 654. Court affirm.

A jury found defendant Hersey Lee Lelaind to be a sexually violent predator (SVP) and the court committed him for an indeterminate term to the California Department of Mental Health (Department) for appropriate treatment and confinement in a secure facility. (Welf. & Inst. Code, 6600, 6604.) Defendant, with the assistance of appointed counsel, appeals the commitment order. Defendant contends that (1) his commitment for an indeterminate term is a violation of the federal and state constitutions due process, equal protection, ex post facto, and double jeopardy provisions (U.S. Const., art. I, 9, cl. 3, 5th & 14th Amends.; Cal. Const., art. I, 7 subd. (a), 9, 15); (2) the clinical evaluators who found that he met SVP criteria and recommended that the local district attorney file a commitment petition did so under assessment standards that did not comply with California administrative law governing the adoption of state agency regulations; and (3) he should be given a new trial because the prosecutions expert witness acknowledged after trial that she was wrong about one fact she used in forming her opinion that defendant is an SVP.

We reject the contentions and affirm the commitment order. First, defendants commitment under the SVP law is constitutional. The law satisfies due process standards in requiring proof beyond a reasonable doubt of mental illness and dangerousness for commitment and in limiting commitment to the duration of those conditions. There is no equal protection violation in the disparate treatment of SVPs and others civilly committed for mental illness because they are not similarly situated groups, and the SVP law is a civil, not a criminal statute, and thus the constitutional ban on ex post facto legislation and double jeopardy is inapplicable. Second, the Departments use of assessment standards without formally adopting the standards as regulations did not prejudice defendant. Any procedural irregularity in the Departments use of a clinical screening process that found defendant to be a possible SVP was harmless given the jurys legal determination, upon substantial evidence, that defendant is an SVP. Third, the prosecution witnesss mistake about a single fact used in forming her opinion does not require a new trial because the mistake was revealed during the trial and the corrected information did not change the witnesss opinion that defendant is an SVP.

Appellant Darin Timothy Dawson (Dawson) appeals from his conviction of assault and false imprisonment, asserting no substantial evidence supports the jurys verdict. Our review of the record leads us to the contrary conclusion, and Court affirm.

Lyle Frances Behag appeals following his no contest plea to unlawful cultivation of marijuana. Counsel has briefed no issues and asks for our review of the record of the proceedings. (People v. Wende (1979) 25 Cal.3d 436.) Behag has not filed a supplemental brief. court have reviewed the record and affirm.

Plaintiff Darnice Linton appeals from a default judgment entered in his favor against defendant Doris Murray but dismissing with prejudice defendant Donald Murray. Plaintiff also appeals from the denial of his motion for a new trial on the ground of inadequate damages. Defendants, who are in default, have filed no opposing brief, but our review of the record discloses no error and Court shall affirm.

T.M., the mother of baby girl Z.M., petitions under California Rules of Court, rule 8.452 to vacate the trial courts order setting a hearing under Welfare and Institutions Code section 366.26[1]to consider termination of her parental rights. Mother contends the evidence fails to support either (1) the courts finding that reasonable reunification services were provided to her, or (2) denial of her request that Z.M. be placed with the childs maternal grandmother. Our careful review of the record leads us to conclude that Mothers contentions are unsubstantiated. Mother was offered, but did not avail herself, of reunification services that were tailored to her cognitive and mental health needs. There was substantial evidence supporting the courts decision to place Z.M. with someone other than her maternal grandmother. The petition is denied on the merits.

Kimberly Williams was awarded a judgment on special verdict for $1.6 million against her former employer Union Pacific Railroad Company due to racial and gender discrimination. Union Pacific appealed, and the parties have settled their dispute. They have filed a request for a stipulated reversal of the judgment. We deny their request because the parties have failed to make the showing required by Code of Civil Procedure section 128, subdivision (a)(8)warranting a stipulated reversal.

Mario Molina appeals from the judgment entered following his convictions by jury on two counts of first degree murder (Pen. Code, 187; counts 1 & 2) with, as to each count, findings that appellant personally and intentionally discharged a firearm causing great bodily injury and death (Pen. Code, 12022.53, former subds. (d) & (e)(1)), appellant committed the offense for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(A)) and, as a special circumstance finding, that he committed multiple murders (Pen. Code, 190.2, subd. (a)(3)). The court sentenced appellant to prison for life without the possibility of parole, plus 75 years to life. court modify the judgment and, as modified, affirm it with directions.

Xavier Babers was convicted of multiple counts of second degree robbery and assault with a semiautomatic firearm, one count of false imprisonment by violence and one count of possession of a firearm by a felon, with firearm and prior conviction allegations found true. The trial court sentenced Babers to state prison for a term of 200 years plus life with the possibility of parole after 278 years. He appeals, claiming the evidence was insufficient to support some of his convictions for assault with a semiautomatic firearm, and the trial court improperly used an enhancement for a dual purpose in sentencing him, erred in admitting evidence an unidentified witness had recorded the license plate number of his getaway car and improperly allowed testimony relating to installation of a GPS tracking device on his car. Although we find the remainder of Baberss contentions to be meritless, as to two counts of assault with a semiautomatic firearm, we find the evidence insufficient to establish the firearm Babers used was semiautomatic. As to these two counts only, Baberss conviction for assault with a semiautomatic firearm is reduced to assault with a firearm, and the matter is remanded to the trial court for resentencing

Defendant and appellant Mark Spiro (Spiro) appeals a right to attach order issued in favor of plaintiff and respondent East West Bank (bank). Spiros principal argument is that the order erroneously permits bank to attach certain real property in La Verne (Property). He contends that although he lives in the Property, the Property is owned by the Perry/Spiro 1995 Family Trust (Trust). Because bank did not establish that Spiro has an ownership interest in the Property, we modify the right to attach order to exclude any specific reference to it. As we shall explain, however, our opinion does not preclude bank from seeking to attach the Property pursuant to Code of Civil Procedure section 488.315.[1]
court also make a second modification to the right to attach order. Although bank claims that it is entitled to $75,845.65 in miscellaneous fees and charges, there is no substantial evidence in the record to support that claim. We therefore reduce the amount bank may attach by $75,845.65, that is, from $1,662,597.12 to $1,586,751.47. As modified, the right to attach order is affirmed.

A jury found defendant and appellant Carlos Gonzalez-Astacio (defendant) guilty of first degree murder. On appeal, defendant contends that the trial court committed prejudicial error by instructing the jury on felony-murder because there was insufficient evidence to support that instruction; in refusing to instruct on aiding and abetting because the evidence supported such an instruction; by denying defendants motion to suppress his confession to police; and by admitting a statement made to police by the codefendant in which the codefendant stated that defendant committed the murder. We hold that there was sufficient evidence to support the instruction on felony murder, the evidence did not warrant an aiding and abetting instruction, the defendants confession was properly admitted, and any error in the admission of his codefendants statement to police was harmless. Court therefore affirm the judgment of conviction.