CA Unpub Decisions

Appellant David Cain, a self-represented litigant, filed a complaint alleging that respondent Pete Smith, a real estate agent for respondent Intero Real Estate Services, Inc., had made a telephone call to Cain in which Smith used racial epithets and made threats of physical violence. After a court trial in February 2008, judgment was entered in defendants favor.
Court understand Cain to challenge (1) the judgment, (2) the trial courts order denying his motion for judgment on the pleadings, and (3) the trial courts order denying his motion to set aside the judgment. For the reasons explained below, we determine that Cain has failed to meet his burden as an appellant to affirmatively demonstrate error. Therefore, we will affirm the judgment and posttrial orders.

Defendant Leopoldo Guzman Zaragoza was charged by information filed March 28, 2008, with seven counts of aggravated sexual assault of a child under 14 (Pen. Code, former 269; count 1-7),[1] and one count each of forcible sexual penetration ( 289, subd. (a)(1); count 8) and lewd conduct on a child aged 14 or 15 ( 288, subd. (c)(1); count 9). The information further alleged that the offenses in counts 2, 8, and 9 were committed in Santa Clara County, and the remaining offenses were committed in San Benito and Santa Cruz Counties. On September 2, 2008, defendant filed a motion for substitution of appointed counsel. At the in camera hearing on the motion on September 19, 2008, defendant stated that his counsel was not [l]ooking into the victim, and that he wanted counsel to come up with a deal. Counsel stated that his investigator had interviewed the victims mother but his request to interview the victim had been denied by her mother. Counsel further stated that after he discussed an offer of 40 to 48 years with defendant, defendant did not want to pursue further discussions. The court denied defendants motion to substitute counsel.

James D. Hartley, Warden at Avenal State Prison, appeals from a March 2009 order of the Santa Clara County Superior Court granting Ermias Below's petition for writ of habeas corpus. With modifications, Court affirm the order of the superior court.

Petitioner Harold Griffith petitioned the superior court for a writ of mandate directing the County of Santa Cruz (County) to stop collecting a fee intended to fund Countys 911 emergency response system (the 911 fee). Petitioner alleged that the 911 fee was invalid because it was a special tax that had not been approved by two-thirds of the electorate as required by the California Constitution. (Cal. Const. arts. XIII A, 4, XIII C, 2, subd. (d).) The trial court denied the petition and this appeal followed. Court shall affirm. In Mancini v. County of Santa Cruz (Dec. 14, 2005, H028434 [nonpub. opn.]) (Mancini), this court decided that Countys 911 fee was not a special tax. Petitioner was adequately represented by the litigant in that case. Accordingly, he is estopped from relitigating the same claim in this case.

Defendant Zachary Robey was convicted by jury of two counts of first degree robbery (Pen. Code, 211-212.5, subd (a)),[1] one count of dissuading a witness ( 136.1, subd. (c)(1)), one count of extortion of property ( 518-520), and one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). The jury found true enhancement allegations that defendant personally used a firearm when he committed the robberies and the extortion ( 12022.53, subd. (b), 12022.5, subd. (a)). The jury also found that enhancement allegations that defendant knew or should have known that the robbery victims were under the age of 14 ( 667.9, subd. (a)) were not true. The court sentenced defendant to an aggregate term of 25 years eight months in prison. On appeal, defendant contends that his attorney provided ineffective assistance of counsel when he failed to object to alleged prosecutorial misconduct when the prosecutor misstated the law of extortion in argument and told the jury that she did not have to prove defendant actually received money. Defendant also argues that there was insufficient evidence to support his conviction for dissuading a witness and the related gun enhancement. We conclude that defense counsel was not ineffective because the prosecution did not misstate the law of extortion in argument and that there was sufficient evidence to support both the guilty verdict on the dissuading a witness count and the related gun enhancement. Court shall therefore affirm the judgment.

In a drive-by gangland shooting, defendant Lionel Shell killed an innocent bystander and wounded a rival gang member. Defendant confessed the shooting to the police, and two accomplices identified defendant as the shooter. At trial, defendant recanted his confession, denied all participation in the shooting, and implicated another gang member. A jury rejected the defense and convicted defendant of first degree murder, attempted murder, and shooting from a motor vehicle. (Pen. Code, 187, subd. (a), 664, 12034, subd. (c).) The court sentenced defendant to life in prison without parole. Defendant appeals the judgment. Defendant maintains that the court erred in denying his motion to disclose the identity of a police informant who reported conversations with gang members after the shooting implicating others. (Evid. Code, 1041, subd. (a)(2).) Defendant also challenges the use of standard jury instructions on circumstantial evidence, in-custody witnesses, and unjoined perpetrators. (CALCRIM Nos. 224, 337, 373.) Finally, defendant asserts that the court erred in failing to sustain an objection to the prosecutors closing argument that supposedly understated the prosecutions burden of proof. Court find no errors and affirm the judgment.

The trial court established a temporary conservatorship for Jacqueline B. (conservatee) and later, after a court trial, found her to be gravely disabled under the Lanterman-Petris-Short Act (Welf. & Inst. Code, 5000 et seq.) (LPS Act).[1] Without any further proceedings, the court entered an order, drafted by the conservators counsel and approved as to form by conservatees counsel, establishing an LPS conservatorship, appointing respondent Public Guardian of Marin County (Public Guardian) conservator of the person, and imposing several special disabilities on the conservatee, including divesting her of the right to make her own medical treatment decisions. The conservatee appeals, contending the Public Guardian breached its fiduciary duty to her, the court improperly imposed the special disabilities, and imposition of the temporary conservatorship was unlawful. Although we decline to address her arguments with respect to the temporary conservatorship and find the fiduciary duty argument to have been waived, we conclude there is no indication the trial court made the findings necessary before imposing the special disabilities. Court affirm the appointment of an LPS conservator, but Court vacate the portion of the courts order imposing special disabilities.

The mother of five-year-old S.H. (Mother), appeals from an order terminating her parental rights. Mother maintains the order must be reversed because the juvenile court (1) abused its discretion in denying the San Mateo County Human Services Agencys (Agency) request for a continuance of the Welfare and Institutions Code[1] section 366.26 hearing due to questions raised about the prospective adoptive family, (2) erred in making a finding of adoptability before an investigation of the prospective adoptive familys ability to adopt could be completed, and (3) failed to comply with the notice and inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901 et seq.). Court agree that the Agency did not provide adequate information in the ICWA notices it sent out and will conditionally reverse the juvenile courts findings and orders so that proper notice of the proceedings may be given to the tribes in question.

A jury convicted appellant Marc Anthony Bryant of first degree residential robbery and found that he committed this offense in concert. (Pen. Code, 211, 212.5, subd. (a), 213, subd. (a)(1)(A).) The trial court found prior conviction allegations to be true and he was sentenced to 21 years in state prison. ( 667, subds. (a)(1), (b), 667.5, subd. (b), 1170.12.) On appeal, Bryant contends that the trial court deprived him of a fair trial by excluding proffered evidence that the robbery victims parent used a racial epithet when denouncing Bryant to police. Court affirm the judgment.

Defendant and appellant Lyle P. Bynum pleaded guilty to one count of possession of a deadly weapon (Pen. Code, 12020, subd. (a)(1),[1] one count of transportation of less than an ounce of marijuana (Health & Saf. Code, 11360, subd. (b)), and one count of contributing to the delinquency of a minor ( 272, subd. (a)(1)). He argues on appeal that the trial court erred in denying his motion to suppress. Court disagree.

Appellant Georgina M. Frate, who is proceeding in propria persona, appeals from an order entered in her marital dissolution action denying her request for spousal support. Respondent Eddie H. Frate, appellants former husband, has not filed a respondents brief. For reasons we will explain, we find appellant has forfeited her claims on appeal. Accordingly, Court affirm the judgment.

While on probation from a 2008 conviction for felony petty theft with a prior (Pen. Code, 666),[1] appellant was stopped and arrested by the Napa police for being in possession of a burglary tool. The District Attorney moved to have appellants probation revoked, and the trial court so ordered. Citing People v. Wende (1979) 25 Cal.3d 436, appellant appeals and asks this court to examine the record and determine if there are any issues deserving of further briefing. We have done so, find none, and hence affirm the order revoking appellants probation.

Manuel Garcia, Jr. sued his deceased mothers estate seeking to quiet title to real properties based on adverse possession. The trial court found that his possession had not been continuously adverse for the requisite five years. Accordingly, the court sustained the estates demurrer without leave to amend and dismissed the action. Court affirm.

A modification decision.