CA Unpub Decisions

Buyers Jason Nichols and Jeffrey Miller appeal from a judgment after a bench trial awarding equitable relief and damages to sellers James Howard and Susan Howard (the Howards), in connection with a purchase agreement for a house. The equitable remedy available to the Howards under the Home Equity Sales Contract Act (HESCA) (Civ. Code, 1695 et seq.), given the circumstances of this case, is rescission, not cancellation. (All further statutory references are to the Civil Code unless otherwise specified.) The purchase agreement could not be rescinded because the Howards failed to offer evidence of their ability to repurchase the property. In addition, the trial court erred in its calculation of damages; therefore, we reverse the judgment and remand for recalculation of damages, if any, and issuance of a new statement of decision and a new judgment.

The State of California and several California municipal entities sued Bank of America and Bank of America Corporation (hereafter collectively the Bank) alleging the Bank had mismanaged their municipal bond funds in its capacity as the public entities corporate trust agent. The parties mediated the dispute and a settlement was reached. The settlement was memorialized in a complex 41-page settlement agreement. As part of the agreement, the State agreed to indemnify the Bank against certain types of claims. Subsequently, a dispute arose over whether the State was obligated to indemnify the Bank for a claim that had been asserted by the State of Alaska. When the parties could not resolve that dispute, the Bank filed a complaint against the State seeking a determination that the State was required to indemnify the Bank. The trial court interpreted the settlement agreement and ruled the State was required to indemnify the Bank. The State now appeals contending the trial court interpreted the settlement agreement incorrectly. Court affirm the trial courts judgment.

Plaintiff Vincent W. seeks reversal of the juvenile courts order committing him to the Division of Juvenile Justice for a maximum term of five years. Court affirm the courts order.

D.R. (Father) and A.R. (Mother) appeal from denial of their petitions under Welfare and Institutions Code section 388[1]and from a judgment terminating their parental rights to U.R. Mother contends the juvenile court erred in denying her section 388 petition seeking resumption of reunification services and in finding inapplicable the beneficial relationship exception to termination of parental rights. Both Mother and Father (collectively, appellants) contend the court erred in terminating their parental rights because the Solano County Health and Social Services Department (Department) failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901 et seq.). Court affirm the denial of the section 388 petitions and the juvenile courts finding regarding the beneficial relationship exception, but Court reverse the judgment and remand for the limited purpose of complying with the ICWA notice requirements.

Appellant Andre Curtis Shaw was charged by information with the murder of Jose Gutierrez (Pen. Code, 187, subd. (a), count 1); assault with a deadly weapon (an automobile) on Jose Gutierrez ( 245, subd. (a)(1), count 2); the willful, deliberate, premeditated attempted murder of Eric Gutierrez ( 664, 187, subd. (a), count 3); and three counts of shooting from a motor vehicle ( 12034, subd. (c), counts 4, 5 and 6).[1] The information further alleged: with respect to count 2, that appellant personally used a firearm within the meaning of section 1203.06, subdivision (a)(1) and section 12022.5, subdivision (a)(1); with respect to count 3, that appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c) and personally used a firearm within the meaning of section 12022.53, subdivision (b); and with respect to counts 1, 4, 5 and 6, that appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (d) and personally used a firearm within the meaning of section 12022.53, subdivision (b).
The judgment is modified to reflect an additional court security fee of $20 and, as modified, is affirmed.

An investor purchased real property at a nonjudicial foreclosure sale six months after a court extinguished the foreclosing partys right, title, estate, lien [and] interest in the property. The owners of the property sued the investor to quiet title. The investor cross-complained, challenging the validity of the judgment extinguishing its predecessors interest in the property. The trial court dismissed the cross-complaint. Court affirm. The investor has no standing to challenge the validity of the judgment against its predecessor.

On July 16, 2004, plaintiff/respondent Jennifer Armstrong (Armstrong) was struck by a motor vehicle driven by defendant/appellant Michael J. Bergin (Bergin). The accident occurred at the intersection of Crescent Heights Blvd. and Fountain Ave. in West Hollywood, California. A verdict was returned after trial by jury in favor of Armstrong and judgment was entered accordingly. For the reasons hereafter given, Court affirm the orders of the trial court.

Gregory Stephen Knapp and Scott Anthony Robinson appeal the judgments following their conviction for attempted murder (Pen. Code, 187/664),[1] and first degree robbery in concert ( 211/213). The jury found true allegations that Knapp and Robinson personally inflicted great bodily injury ( 12022.7, subd. (a)), and that Robinson personally used a deadly weapon ( 12022, subd. (b)(1)). Knapp claims the trial court erroneously excluded evidence of an out-of-court statement he made and presented the case to the jury on an incorrect theory concerning infliction of great bodily injury. He also claims insufficient evidence that he personally inflicted great bodily injury or had suffered a prior strike conviction, and abuse of discretion in denial of his Romero motion to strike a prior serious felony conviction.[2] Robinson claims the trial court erred in failing to instruct the jury on the lesser included offense of attempted robbery, and committed error under section 654 in imposing sentences and great bodily injury enhancements for both robbery and attempted murder, and in imposing an incorrect sentence on the enhancement for the robbery. We will correct a sentencing error concerning the section 12022.7 enhancement to the robbery. Otherwise, Court affirm.

Trinidad Marin appeals his conviction by jury of multiple acts of sexual misconduct with two minors, his sister-in-law, R.R., and his daughter, J.M. Specifically, he was convicted of three counts of lewd acts upon R.R. (Pen. Code, 288, subd. (a)), rape of J.M. ( 269, subd. (a)(1)), continuous sexual abuse of J.M. ( 288.5, subd. (a)), and three counts of oral copulation of J.M. ( 288a, subd. (c)(1)). He was sentenced to 31 years to life in state prison.
Appellant contends that his right to a speedy trial was violated by pre-arrest delay, that the trial court committed several prejudicial evidentiary errors, that his trial counsel rendered ineffective assistance of counsel, that there was insufficient evidence to establish the criteria necessary to extend the statute of limitations for some of the charges, that the instruction on the extension criteria was erroneous, and that his conviction for continuous sexual abuse of J.M. should have been dismissed. We agree with his last contention and vacate the conviction for count 6, continuous sexual abuse. ( 288, subd. (a).) Court otherwise affirm the judgment.

The jury found defendant Ernest Kendall Scott guilty of the first degree murders of Charles Trice on October 9, 2003, and Victoria Gnerlich on July 27, 2003 (Pen. Code, 187, subd. (a)). The jury returned true findings of burglary and robbery special circumstances as to both murders ( 192, subd. (a)(17)), along with a multiple murder special circumstance ( 190.2, subd. (a)(3)).[2] Defendant was also convicted of grand theft of an automobile ( 487, subd. (d)(1)), first degree robbery ( 211), and first degree occupied burglary ( 459, 667.5, subd. (c)(21)) in connection with the Trice murder. As to the Gnerlich incident, the jury also found defendant guilty of first degree robbery and first degree occupied burglary. The jury fixed defendants punishment at life imprisonment without the possibility of parole for both murders following a penalty phase trial. In addition to the two life terms without parole, the trial court imposed a two-year midterm sentence for the grand theft auto conviction. The court imposed the midterm as to all remaining counts, but stayed the sentences pursuant to section 654. A five-year enhancement was imposed for a prior serious felony conviction under section 667, subdivision (a)(1). In his timely appeal, defendant contends the trial court erred in denying his motion to suppress his custodial statements to the police on the ground that the interrogating officers failed to obtain defendants waiver of constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant also contends the court improperly imposed the five-year serious felony enhancement. Defendants Miranda claim fails, but we agree the five year enhancement must be stricken. In all other respects, the judgment will be affirmed.

Defendant and appellant, Ronald Bacon, appeals from the judgment entered following his conviction, by jury trial, for possession of a controlled substance in jail, with prior prison term and prior serious felony conviction findings (Pen. Code, 4573.6, 667.5, 667, subd. (b)-(i)).[1] Sentenced to state prison for four years, Bacon claims there was trial error. The Attorney General claims there was sentencing error.
The judgment is affirmed in part, reversed in part, and remanded for resentencing.

Francisco Espinoza appeals from the judgment entered after a jury convicted him of one count of second degree murder (Pen. Code, 187, subd. (a)),[1]with true findings of personal and intentional discharge of a firearm causing injury or death ( 12022.53, subds. (b), (c), (d) & (e)(1)) and of the commission of murder for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)).[2] Espinozas sole contention on appeal is the 10-year determinate term imposed for the criminal-street-gang enhancement is unauthorized, and the judgment must be modified to strike the 10-year enhancement. We agree the decision in People v.Lopez (2005) 34 Cal.4th 1002 (Lopez) supports Espinozas contention his sentence should be modified. Court therefore strike the 10-year enhancement, and affirm the judgment as modified.

A modification decision.

Plaintiff and appellant Irene Shandell filed a complaint against defendant and respondent City of Compton (the City) on September 5, 2006, alleging three causes of action for property damage caused by general negligence. The complaint alleged that Shandell bought her house in the City in 1985. The City had permitted development of the house in 1984-1985. In 1984, the City, or others working for the City, installed water mains, pipes, and sewers under Shandells home. In 2005, Shandell noticed damage to her home due to water from the water main or sewer pipe under her home. The home suffered damage to walls, the patio, a barbeque, the garage, and a bathroom. Under the compulsion of section 472c, subdivision (a) and case law interpreting that section, we reverse on the basis that Shandell is entitled to amend her complaint. The judgment is reversed.