CA Unpub Decisions

Following approximately three and one half days of testimony, a jury found Zeff Avalos (defendant) guilty of one count of aggravated sexual assault of a child under the age of 14 years with the defendant at least 10 years older (Pen. Code, 269, subd. (a)(5), count one, [sexual penetration by foreign object of Rose Doe, 289, subd. (a)]);[1] one count of aggravated sexual assault of a child under the age of 14 years with the defendant at least 10 years older ( 269, subd. (a)(5), count two, [sodomy of Rose Doe, 286 occurring between June 1, 1999 and July 1, 1999]); one count of sodomy by force of Rose Doe ( 286, subd. (c)(2), count three [occurring between August 1, 1999 and March 30, 2000]); one count of oral copulation by force or violence of Rose Doe ( 288a, subd. (c)(2) [occurring between August 1, 1999 and March 30, 2000]); and one count of lewd or lascivious act on a child age 14 or 15 (R. Doe) ( 288, subd. (c)(1), count five [occurring between April 18, 2007 and April 19, 2007]).

Plaintiff Harold Griffith sued defendant County of Santa Cruz (County) for a refund of service charges he paid in connection with his property tax bill and for a judicial declaration that the charges were unlawful. Plaintiff maintained that the charges did not comply with the County Service Area (CSA) law (former Gov. Code, 25210.1 et seq.),[1] or with Proposition 218s requirements for special taxes, assessments, charges, or fees (Cal. Const., arts. XIII C, XIII D).[2] The trial court sustained Countys demurrer without leave to amend on the ground that the entire action was barred by the statutes of limitations. Court shall affirm.

Pursuant to a negotiated plea, Michael Carvallo (defendant) pleaded no contest on December 22, 2008, to one count of theft or embezzlement of over $400 from an elder adult (Pen. Code, 368, subd. (d)); one count of check forgery (Pen. Code, 470, subd. (d)); and one count of concealing or withholding stolen property (Pen. Code, 496, subd. (a)). In exchange for his pleas, the defendant was promised that two remaining counts would be dismissedone count of grand theft (Pen. Code, 484-487, subd. (a)); and one count of possession of controlled substance paraphernalia (Health & Saf. Code, 11364.) Further, he was promised his sentence would be 60 days, "top bottom." On January 30, 2009, the court imposed the negotiated sentence. Thereafter, on February 18, 2009, defendant filed a notice of appeal challenging events based on the sentence or matters occurring after the plea.

A jury convicted appellant Adriana Alvarado of transporting cocaine and possessing cocaine for sale. (Health & Saf. Code, 11351, 11352, subd. (a).) On appeal, Alvarado challenges the denial of her motion to suppress; the denial of her motions for mistrial; and the admission of prejudicial testimonial evidence. She also raises an ineffective assistance of counsel claim. Court affirm the judgment.

Defendant Ricardo M. Carmona, as part of a negotiated disposition, pleaded no contest to one count of oral copulation with a child under the age of 16 (Pen. Code, 288a, subd. (b)(2))[1] and one count of sexual intercourse with a child under the age of 16 ( 261.5, subd. (d)). His counsel has filed a brief raising no issues and asks this court to conduct an independent review of the record to identify any issues that could result in reversal or modification of the judgment if resolved in defendants favor. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel declares he notified defendant that he could file a supplemental brief raising any issues he wishes to call to this courts attention. No supplemental brief has been received. Upon independent review of the record, Court conclude no arguable issues are presented for review and affirm.

Plaintiff Ealise Crumb appeals from the order granting terminating sanctions and dismissing her action alleging racial discrimination in connection with her purchase of a television set at a store of defendant Kmart Corporation. Crumb also named Sears Holding Company as a defendant because it had purchased Kmart (defendants are referred to as Kmart). Because we conclude the court properly granted terminating sanctions, Court need not address the other issues raised by Crumb.

Appellant David Lee Strong was convicted by a jury of possessing cocaine base for sale. He admitted two prior convictions and two prior prison terms. The People chose not to proceed under one of the two prior convictions. Appellant was sentenced to the upper term of five years, doubled for one prior conviction, and to two additional years for the two prior prison terms for a total of 12 years. Four fines were also imposed. Court affirm the conviction.

In 1987, Elizabeth Ozerson was sentenced to a term of 15 years to life for second degree murder, plus a 2-year enhancement for personal use of a handgun. In April 2007, the Board of Parole Hearings (Board) found Ozerson unsuitable for parole.[1] Ozerson has filed a petition for writ of habeas corpus contending that she has been denied due process because no evidence supports the Boards conclusion that she would currently pose an unreasonable risk of danger to public safety if released on parole. Court disagree and deny the petition.

C.R. appeals from orders determining that he was a ward of the juvenile court because he stole a car and assaulted someone by means likely to produce great bodily injury. He contends the court erred because it did not award him presentence custody credit, and also asks that we correct the courts orders to correctly state his maximum term of confinement. Respondent agrees with these contentions, and Court therefore amend the orders to include these corrections, and affirm those orders as modified.

D.K., a minor, appeals from the juvenile courts order continuing his wardship (Welf. & Inst. Code, 602) entered following the courts findings that he committed second degree commercial burglary (Pen. Code, 459) and received stolen property (Pen. Code, 496, subd. (a)). D.K. was ordered placed in a camp community placement program with a maximum period of physical confinement (MPPC) of seven years. On appeal, D.K. contends the juvenile court improperly imposed a term for first degree burglary and failed to stay the term for stolen property pursuant to Penal Code section 654. Court conclude that although the court did not impose a term for first degree burglary, it did err in calculating the term of confinement. Court agree that the court should have stayed the term for receiving stolen property under Penal Code section 654. Finally, Court remand for proper calculation of any predisposition credit to which he is entitled.

This appeal arises from an effort by Legacy Construction and Development, Inc. (Legacy) to enforce a judgment it obtained in a construction lawsuit against parties who were not defendants in the first action, but whom it alleges were partners in the judgment debtor, DTS, a California partnership. Legacy contends the trial court erred in sustaining a demurrer to its causes of action for misrepresentation and in finding an individual defendant, Antonio De Francesca, not liable on either alter ego or ostensible partnership theories. In addition, Legacy argues that Antonio De Francesca was not entitled to an award of attorney fees under Civil Code section 1717, and challenges the amount of fees awarded to him. Finally, Legacy contends the trial court abused its discretion in setting the amount of fees it was awarded as prevailing party against another defendant.

A jury convicted defendant and appellant defendant Lonnie James Carter (defendant) of one count of second degree commercial burglary (Pen. Code, 459)[1] and one count of petty theft with a prior ( 666). On appeal, defendant argues and the People concede that the trial court erred in sentencing defendant. We agree that defendants sentence was, in several respects, unauthorized. We modify defendants sentence (1) to reflect that his sentence for burglary was enhanced with three one-year terms pursuant to section 667.5, subdivision (b), rather than section 1203, subdivision (e)(4); and (2) to stay the execution of defendants sentence on his petty theft conviction pursuant to section 654. In addition, we remand to the trial court to determine whether to impose or to strike defendants five remaining section 667.5, subdivision (b) priors. In all other respects, Court affirm.

In companion cases, a father appeals from: (1) a dispositional order requiring him to participate in a drug rehabilitation program with random testing, (2) a jurisdictional finding that his son was at risk of physical and/or sexual abuse, and (3) orders that the Indian Child Welfare Act (25 U.S.C. 1901, et seq. (ICWA)), did not apply in either case. Court reverse on a limited basis and remand with instructions for further proceedings.

Appellants Lee Williams, Sherrie Powdrill and Lee Williams as guardian ad litem for minors Kalonni and Montice Williams filed an action for personal injuries against respondent Southern California Gas Company and other entities who are not parties to this appeal.[1] The action arose from the malfunctioning of a natural gas wall furnace in a home rented by appellants. Respondents demurrer to the second amended complaint was sustained without leave to amend because the trial court concluded that discovery responses provided by appellants in a prior action were in conflict with the allegations of the complaint in this case. Court do not agree with the trial courts ruling. Court find, however, that respondent did not owe appellants a duty of due care. We therefore affirm the judgment.