CA Unpub Decisions

On October 5, 2007, defendant was charged by a felony complaint in case number FSB704217 with two counts of assault with a firearm (Pen. Code, 245, subd. (a)(2)).[1] In that complaint the District Attorney of San Bernardino County further alleged that defendant personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d). On July 2, 2008, defendant filed a notice of appeal from the sentence or other matters that occurred after entry of the plea. The judgment is affirmed.

On October 25, 2007, the District Attorney of Riverside County filed a felony complaint charging defendant with one count of assault with a deadly weapon other than a firearm (Pen. Code, 245, subd. (a)(1)).[1] The felony complaint further charged the special allegation that defendant personally used a deadly and dangerous weapon, to wit: a knife, within the meaning of sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23), and that defendant personally inflicted great bodily injury upon the person of another within the meaning of sections 12022.7, subdivision (a) and 1192.7, subdivision (c). On May 27, 2008, pursuant to section 859a, defendant, respresented by counsel, pled guilty to assault with a deadly weapon. In accordance with the negotiated disposition, defendant was committed to state prison for two (2) years less custody credits and the special allegations were stricken on motion of the district attorney and in the interests of justice pursuant to section 1385. The judgment is affirmed.

A jury found Rithy Neang Khe guilty of being an active member in a criminal street gang, in violation of Penal Code section 186.22, subdivision (a). He argues the conviction must be reversed because it was not supported by substantial evidence and the trial court erred in instructing the jury. While we agree the trial court erred in omitting a portion of Judicial Council of California Jury Instructions (2006-2007) CALCRIM No. 1400[2]when it instructed the jury, Court conclude the error was harmless. Court also conclude there was ample evidence to support the conviction and therefore affirm the judgment.

Morrison Homes, Inc. (Developer) obtained a development agreement and tentative subdivision maps for the construction of two residential subdivisions in Patterson, California. At the time those documents were approved, the City of Patterson (City) allowed developers to pay a fee of $734 per house in lieu of building affordable housing. About three years later, City increased this fee to $20,946 per house and sought to apply the increased fee to Developers two residential projects among others. The judgment is reversed and the matter remanded for further proceedings.

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter M. Court will deny the petition.

Jerry Shulman and Lifestyles Resorts, Inc., (collectively, Shulman) appeal from a jury verdict awarding $495 to Robert L. McGinley and L.S.O. Limited (collectively, McGinley) on their fraud claim against Shulman and $200,000 in punitive damages, which the trial court reduced to $4,950. Shulman contends the trial court erred in sustaining a demurrer or, in the alternative, granting nonsuit on Shulmans breach of confidence claim. Shulman also challenges the sufficiency of the evidence to support the jurys fraud finding and punitive damages award, asserts the trial court erred in denying his request to elicit testimony from McGinleys trial counsel, and argues McGinley was not entitled to expert witness fees as part of his cost bill because his pretrial settlement offer was invalid (Code Civ. Proc., 998; all further undesignated statutory references are to this code). As we explain below, none of these contentions has merit and Court therefore affirm the judgment.

In a joint trial, a jury found defendants Raymond Dwight Graham (R. Graham), Dashawn Graham (D. Graham), Wyron Jerome Oard (Oard), and Johnny Lee Thomas (Thomas) guilty of three counts of home invasion robbery, two counts of residential burglary, one count of unlawfully taking a vehicle, and one count each of street terrorism. The jury also found Thomas guilty of forcible oral copulation and forcible rape. On the robbery, burglary, and vehicle taking counts, the jury returned true findings on enhancement allegations for criminal street gangs and vicarious use of a firearm in gang crimes. The trial court imposed 47-years-to-life terms on Oard, R. Graham, and D. Graham. Thomas received the same sentence, plus an additional life term with a 15-year minimum sentence for the sexual assault. Court affirm defendants convictions on all of the charges, plus the true findings on the related allegations. However, since the Attorney General concedes some of defendants sentencing error claims have merit, Court remand the matter for resentencing.

A jury convicted defendant Martin Guadarrama of one count of second degree robbery (Pen. Code, 211)[1] and one count of street terrorism ( 186.22, subd. (a)). The jury further found it to be true that defendant personally used a deadly weapon (a knife) during the commission of the robbery ( 12022, subd. (b)(1)), and committed the robbery offense for the benefit of, at the direction of, or in association with Varrio Viejo, a criminal street gang ( 186.22, subd. (b)(1)). Court reject this challenge.

A judgment dissolving the marriage of Amanda I. and Carlos R. Gonzalez was entered on April 25, 1990. (We will refer to Amanda and Carlos by their first names to avoid confusion; we intend no disrespect.) The judgment included a provision permitting Amanda to continue to reside in the family residence for five years. After that time, the house was to be sold, with Amanda and Carlos splitting the net proceeds. The five year mark came and went, and the house was never put up for sale.

A modification decision.

T.H. (mother), the mother of M.H. (daughter) appeals from the juvenile courts denial of her Welfare and Institutions Code section 388 petition. She contends the court erred in denying the petition because she demonstrated a change in circumstances and that further services were in daughters best interest. Mother also appeals from the termination of her parental rights after a section 366.26 permanency hearing (the .26 hearing). She contends the court erred by not applying the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). Court affirm.

Petitioner James Haramis (Haramis) is the defendant and appellant to a pending appeal in this court (Case Number A123117). A dispute has arisen concerning the record of the written documents from the superior court proceedings. . . . (See Cal. Rules of Court, rule 8.120(a).) Haramis asserts that the superior courts order is legally unsupported. Court agree.

Hugo Ivan Sanchez appeals from the judgment entered after his conviction by a jury of assault with a firearm (Pen. Code, 245, subd. (a)(2))[1]and shooting at an occupied vehicle ( 246) and true findings by the jury on related firearm and gang enhancements. Sanchez, who was 16 years old at the time of the shooting, was tried as an adult and sentenced to 40 years to life in state prison. Although he raises a variety of arguments in this appeal, Sanchezs principal challenge concerns the testimony of two of the three occupants of the targeted car identifying him as the shooter. We reject his contention the identifications were made under unduly prejudicial circumstances and, with the exception of the trial courts denial of his motion for discovery of law enforcement personnel records (Pitchess motion), affirm his conviction. Court remand for the limited purpose of reconsideration of the discovery motion.

Bohumir Marik and Anna Slintak appeal judgment on their cross-complaint to enjoin Buckeye Retirement Co. LLC, Ltd.s non-judicial foreclosure sale of Mariks property located in Redondo Beach. The trial court ruled that the trust deed was a valid encumbrance and that Union Bank v. Gradsky (1968) 265 Cal.App.2d 40 (Gradsky) did not apply to bar the foreclosure because the trust deed was additional security, rather than a guaranty. On appeal, Marik argues that (1) the trust deed constituted a guaranty and was therefore not subject to foreclosure under Gradsky; (2) the indebtedness was paid in full by a prior foreclosure on another property; and (3) the trust deed was invalid because there was no meeting of the minds concerning the amount of the loan the trust deed secured. Court affirm.