CA Unpub Decisions

Defendant and appellant Harold Dwayne Black appeals after he pleaded guilty to one count of assault by means of force likely to cause great bodily injury (GBI), admitted an allegation that he personally caused GBI to the victim, and admitted several prior prison term allegations. Defendants appointed appellate counsel has filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], and People v. Wende (1979) 25 Cal.3d 436, raising no specific issues. Defendant has been afforded the opportunity to file a supplemental brief, raising any additional issues, and he has done so. Court have also undertaken the required examination of the entire record. For the reasons which follow, we affirm the judgment.

On August 29, 2006, an information was filed in the Superior Court of Kings County charging appellant Barry Louis Lamon with count I, felony battery while confined in state prison upon a non-confined person (Pen. Code, 4501.5), with four prior strike convictions ( 667, subds. (b)-(i)) and two prior prison term enhancements ( 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations. On August 30, 2006, the court granted appellants motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). On December 13, 2006, the court imposed the third strike term of 25 years to life plus two consecutive one-year terms for the prior prison term enhancements, to be served consecutively to the life term already being served.

A modification decision.

On May 1, 2007, the Kern County District Attorney filed a consolidated second amended information in superior court charging appellant as follows:
On October 29, 2007, appellant filed a timely notice of appeal. He contends the trial court erred in admitting evidence of an identification from an unduly suggestive photographic lineup and that the court committed sentencing error. Court disagree.

Appellant Pheng Yang challenges the trial courts decision to deny his request for probation, on the sole ground that the court misunderstood the scope of its discretion to grant probation. Specifically, he contends the trial court believed it could not place him on probation unless it found he did not pose a threat to the victim. He requests a remand for resentencing.
Court conclude the reporters transcript of the sentencing hearing demonstrates that the trial court incorrectly believed that it could not grant probation unless it found appellant did not pose a threat to the victim. Accordingly, Court remand for resentencing.

The trial court found that the payor of a promissory note secured by a deed of trust received no consideration in exchange for the note and security. As a result, the trial court declared the note and deed of trust void. The payee under the promissory note appeals, contending the trial courts findings of fact are not supported by substantial evidence. Court conclude the evidence, which included the payors testimony that he received no money in exchange for the promissory note, was sufficient to support the trial courts findings. Accordingly, the judgment will be affirmed.

Appellant Bee Lee appeals the trial courts denial of his motion to vacate and set aside judgment entered in this case. Appellant sought discretionary relief under the provisions of Code of Civil Procedure section 473, subdivision (b) (section 473(b)). He contends the trial court based its ruling on a clear error of fact. Court will affirm.

Appellant Anthony Lavelle Cooper, pursuant to a plea agreement, pled no contest to second degree burglary (Pen. Code, 459, 460, subd. (b))[1]and admitted allegations that he had (1) suffered a strike[2]and (2) served three separate prison terms for prior felony convictions ( 667.5, subd. (b)). The court imposed a prison term of six years, consisting of the two-year midterm on the substantive offense, doubled pursuant to the three strikes law ( 667, subd. (e)(1); 1170.12, subd. (c)(1)), plus one year on each of two of the three prior prison term enhancements. The court declined to impose sentence on the third prior prison term enhancement. On appeal, appellant contends the court, by declining to impose sentence on a prior prison term enhancement admitted by appellant but not striking the enhancement, imposed a legally unauthorized sentence. Court remand for further proceedings.

Appellant Barry J. Walshe filed a motion for declaratory relief regarding whether the notice of appeal was timely filed. Court determine it was not, and dismiss the appeal for lack of jurisdiction.

Nahum Guzik brought a lawsuit against his Palo Alto neighbors David and Joanne Lee and their predecessors in interest, his former neighbors George and Cornelia Haber, who allegedly eliminated a gate providing access to a pathway used by Guzik over their property before they sold the property to the Lees. Guzik also sued the City of Palo Alto, which allegedly had acquired public utility easements over the adjacent property by condemnation. Guzik claimed that he had acquired a prescriptive right to use a path across the Habers' property, now the Lees' property, which was referred to as the "Disputed Pathway," for purposes of pedestrian ingress and egress, walking his dog, accessing Robb Road where his water meter was located, and accessing the easements for water line and other utilities servicing his property. The path allegedly extended from Guzik's property, which had an address on Old Adobe Road, to Robb Road. Guzik sought to quiet title, and to abate the conditions tortiously interfering with his use and enjoyment of the "Disputed Pathway," declaratory and injunctive relief, and damages.
In the only cause of action against the Habers, Guzik sought to recover litigation costs incurred in suing the Lees as damages under the doctrine of "tort of another." Guzik maintains that his lawsuit against the Lees was the natural and proximate consequence of the Habers' conduct since "proximate consequence" "includes "reasonably foreseeable events, such as the Lees' continuation or maintenance of the nuisance created by defendants Haber." Guzik appeals from the trial court's order granting a judgment of nonsuit in favor of the Habers. Court affirm.

Appellants appeal an order dismissing its cross-complaint without qualification, where only some of the cross defendants had sought dismissal. Court construe the order to dismiss the cross claims only against the moving defendants and affirm.

M.C. (Father) seeks extraordinary review of an order setting a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). (Cal. Rules of Court, rule 8.452.) Court deny the petition on the merits.

A parcel of land was owned by two couples. They hired a contractor to build two houses on the property. A dispute arose with the contractor after the houses had been largely, but not completely, constructed. The owners ultimately terminated the contractor from the project, and completed construction at their own cost. The owners sued the contractor for the costs of completion, loss of use damages, and the cost of fixing items defectively constructed by the contractor. The contractor cross-complained for the amounts unpaid under the contract, and the additional cost of several changes to the work allegedly requested by the owners. Subsequently, the owners sought to amend their complaint to allege a cause of action seeking disgorgement of all funds they had paid the contractor, on the basis that the contractors license had been suspended by operation of law during his work on the houses; the trial court denied this request. The jury reached a verdict in favor of the owners and against the contractor, although not in the amount the owners had sought. The owners then sought their attorneys fees, on the basis that the contractor had initially pleaded a statutory cause of action under which the prevailing party is entitled to attorneys fees. The trial court denied this motion on the ground that the contractor had not pursued that cause of action. Both parties appeal. The owners challenge the trial courts denial of their motion to amend their complaint to seek disgorgement and the denial of their motion for attorneys fees. The contractor appeals from the judgment, challenging the sufficiency of the evidence supporting the award in favor of the owners, and also asserting that the trial court failed to offset the unpaid balance on the contract against the award in favor of the owners. Court affirm in all respects.

The jury convicted Koeppel Hall of nine counts of premeditated, deliberate attempted murder, of shooting at a motor vehicle, of shooting from a motor vehicle, and of being a felon unlawfully in possession of a firearm. The jury found true the allegations that a principal intentionally discharged a firearm causing great bodily injury and that Hall committed all the offenses for the benefit of a criminal street gang. Hall appeals from the judgment claiming (1) insufficient evidence supported the convictions, (2) the court committed instructional error, (3) the prosecutor committed prejudicial misconduct, and (4) trial counsel rendered ineffective assistance. He claims that these errors, either individually or in combination, require reversal of the judgment. Court affirm.